Federal Court of Australia

Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent's costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Lynch is a New Zealand citizen. He has lived in Australia since he was 7 years old. In February 2023, Mr Lynch was convicted of the offence of grievous bodily harm and sentenced to 4 years imprisonment. In consequence of his conviction, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Mr Lynch sought the revocation of his visa cancellation pursuant to s 501CA(4). A delegate of the Minister declined his request. His application for review of that decision before the Administrative Appeals Tribunal resulted in a decision affirming the decision not to revoke the cancellation of his visa.

2    In making its decision, the Tribunal was required to comply with any direction that had been given by the Minister as to the exercise of powers under the Migration Act: see s 499(2A). There was a direction in place at the time in respect of the powers that were being exercised by the Tribunal on review (Direction 110).

3    Amongst other things, Direction 110 required the Tribunal to take into account 'the primary and other considerations relevant to the individual case'. It specifically provided (at s 7(2)) that:

The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(emphasis added)

4    The primary considerations specified in Direction 110 (at s 8) were:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the strength, nature and duration of ties to Australia;

(4)    the best interests of minor children in Australia;

(5)    expectations of the Australian community.

5    The Tribunal considered each of the primary considerations.

6    As to protection of the Australian community, the Tribunal concluded that Mr Lynch 'would appear to be at a high risk of re-offending both in a general sense and in respect of further acts of violence' (para 112). He was found to pose an unacceptable risk to the Australian community (paras 113-114). The primary consideration of the protection of the Australian community from criminal or other serious conduct was found to weigh strongly against revocation of the cancellation of Mr Lynch's visa (para 114).

7    As to the best interests of minor children in Australia affected by the decision, Mr Lynch identified two half-siblings and a niece who he said would be affected if he was required to return to New Zealand. The Tribunal considered their interests and concluded that their best interests weighed in favour of revocation of the cancellation of Mr Lynch's visa 'to a moderate degree' (para 155).

Grounds of review

8    Mr Lynch sought judicial review of the Tribunal's decision in this Court. He advanced two grounds of review each of which alleged jurisdictional error in respect of the way in which the Tribunal dealt with the best interests of minor children in Australia. They were to the following effect:

(1)    The Tribunal placed greater weight upon the protection of the Australian community than any other primary consideration when the requirement to that effect in Direction 110 was unlawful because there were decisions to the effect that the best interests of children affected by the decision were required to be dealt with as a primary consideration and not as a form of lesser consideration to the protection of the Australian community (and consequently a decision which gave effect to the requirement in Direction 110 was procedurally unfair).

(2)    The Tribunal 'did not consider or have regard to' certain evidence that was before the Tribunal concerning the best interests of the children which was said to be one of the following types of errors:

(a)    a failure to address 'a substantial, clearly articulated claim';

(b)    a denial of procedural fairness;

(c)    a failure 'to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the [applicant's] evidence'; and

(d)    a failure to take into account relevant considerations.

Outcome

9    For the following reasons the application for judicial review for alleged jurisdictional error must be dismissed with costs.

Ground 1: The lawfulness of Direction 110

10    The foundation for ground 1 was a contention that Direction 110 was inconsistent with a legal requirement to the effect that the best interests of any children affected by the decision were required to be treated as a 'primary consideration' in deciding whether to exercise the statutory power to revoke the visa cancellation.

11    As has been mentioned, the power to revoke the cancellation was conferred by s 501CA(4). It provided that the Minister may revoke the cancellation if (a) the person whose visa had been cancelled made representations to the Minister in response to an invitation to make any such representations (being an invitation that the Migration Act required the Minister to extend); and (b) the Minister was satisfied that the person passes 'the character test' or there is 'another reason' to revoke the cancellation.

12    In the circumstances of the present case, the only real issue was whether there was 'another reason' to revoke the cancellation. Could it be said that there was some form of requirement that the best interests of any child affected by the decision whether to revoke for 'another reason' must not be treated as a consideration that was of lesser significance than any other consideration that might bear upon the exercise of the power?

13    For Mr Lynch, particular reliance was placed upon the reasoning by the Full Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 (Branson, North and Stone JJ). It concerned the exercise of a different power, namely the power conferred upon the Minister by s 501(1) of the Migration Act to refuse to grant or cancel a visa. At that time there was a direction pursuant to s 499 in place as to the exercise of that power. The question was whether the Tribunal 'gave proper consideration' to the best interests of relevant children in affirming a decision not to grant a visa to Mr Wan.

14    The Full Court began its reasoning by referring to passages from the High Court decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. In that case, the High Court was concerned with a claim that procedural fairness had not been afforded when a delegate of the Minister made a decision refusing Mr Teoh's visa application. The case was advanced on the basis of the then prevailing principle of 'legitimate expectation' (no longer applied). Three members of the High Court (Mason CJ, Deane and Toohey JJ) concluded that the fairness of the procedure that had been followed in exercising the relevant power was to be adjudged having regard to the terms of the United Nations Convention on the Rights of the Child which had been ratified by Australia, particularly Art 3 of the Convention which provided:

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.

15    The ratification of the Convention was held by those three members of the High Court to give rise to a legitimate expectation that the Minister would act in conformity with the Convention and treat the best interests of the child as a primary consideration even though there was no law to that effect. Their Honours held that there had been a denial of procedural fairness because the Minister proceeded without treating the best interests of relevant children as a primary consideration and did so without affording an opportunity to Mr Teoh to present a case against the making of a decision that did not treat the best interests of relevant children as a primary consideration.

16    Gaudron J agreed that there had been a denial of procedural fairness but did not rest that conclusion on the Convention. Rather, her Honour reasoned in the following way (at 304-305):

Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection.

The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilised countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. …

… 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.

17    Significantly, none of the judges in the majority in Teoh determined that there was an obligation that formed part of Australian administrative law to treat the best interests of a child as a primary consideration in any decision-making. Rather, it was the failure to inform the person whose visa application was in issue of the possibility that the best interests of a child may not be treated as a primary consideration and, in consequence, the failure to afford the person an opportunity to present material submissions on that basis, which made the process procedurally unfair.

18    Necessarily implicit in the reasoning is the recognition that if there had been a communication of the possibility that the best interests of a child may not be taken into account as a primary consideration in the making of a decision then, the terms of the Convention notwithstanding, the best interests of any children need not be a primary consideration.

19    In short, nothing in Teoh stands for the proposition that the Convention must be given effect in decision-making or that a decision-making process which does not require the best interests of children to be treated as a primary consideration is itself unlawful.

20    Applying the reasoning in Teoh, the Full Court in Wan reasoned at [15] that 'Mr Wan will have been denied procedural fairness by the Tribunal [as the decision-maker] unless, in fact, the Tribunal did act on the basis that the best interests of Mr Wan's children were "a primary consideration"' (original emphasis). It was that language that was relied upon by Mr Lynch in the present case. However, it was immediately preceded by the following:

The Minister did not contend before the primary judge, or before this Court, that the Tribunal took any step to give notice that it proposed to make a decision which did not accord with the principle that the best interests of Mr Wan's children were 'a primary consideration' in its decision making process.

(original emphasis)

21    Therefore, both Teoh and Wan contemplate that there would be no procedural unfairness in making a decision without treating the best interests of children affected by the decision as a primary consideration provided that aspect of the procedure was made clear to the person whose visa application was to be affected and they could participate in the decision-making process on that basis.

22    In Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187, the authorities that had considered the application of Teoh to cases concerning the decisions made as to the exercise of the power at issue in the present case were considered. At [177], O'Bryan J (Katzmann J agreeing) noted that the concept of legitimate expectation as a foundation for determining the content of any entitlement to procedural fairness had now been rejected, citing Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326. His Honour then reasoned:

However, that does not undermine the conclusion reached by the High Court in Teoh that a breach of the requirements of procedural fairness may occur if a decision to refuse to grant, or to cancel, a visa is made without considering the best interests of a child affected by the decision as a primary consideration, and without giving the applicant an opportunity to be heard on that matter [referring to Wan and other decisions].

23    Having regard to what was decided in Teoh and Wan there is much significance in the use of the word 'may' in the above reasoning. As has been explained, according to those two decisions, there will only be procedural unfairness if the person concerned is not informed of the prospect that the best interests of a child affected by the decision may not be treated as a primary consideration.

24    Further, as was then explained by O'Bryan J at [179], the form of the direction that had been given under s 499 that applied at that time required the best interests of a child to be weighed as a primary consideration. Consequently, by force of s 499 and the terms of that direction there was a duty to consider the best interests of any child affected by the decision whether to exercise the power to revoke the visa cancellation as a primary consideration and a failure to do so would be a jurisdictional error. His Honour went on to consider whether there had been a failure by the Tribunal in the circumstances of that case to conduct the review as required by the direction that applied at that time.

25    Direction 110 is expressed in different terms. Although the best interests of minor children in Australia remain a primary consideration, Direction 110 states expressly that protection of the Australian community from criminal or other serious conduct is generally to be given greater weight than any other primary consideration in the direction. Therefore, that aspect of the procedure to be followed by the Tribunal was known to Mr Lynch. Indeed, there was no suggestion to the contrary. For that reason, the present case must be distinguished from the circumstances in Teoh, Wan and Tohi.

26    Mr Lynch also relied upon Nweke v Minister for Immigration and Citizenship [2012] FCA 266 where Jagot J considered Teoh and Wan. Her Honour reasoned at [16]: 'I consider that the applicant had a legitimate expectation that the Minister would treat the best interests of his children as a primary consideration in deciding whether or not to cancel his visa. Failure to do so would be in breach of the requirements of procedural fairness'.

27    The contention advanced for the Minister in that case was that he had treated the best interests of the children as a primary consideration: at [17]. Her Honour did not accept that submission: at [18]-[21].

28    Therefore, the issue in that case did not concern what was to occur if the direction from the Minister provided for some other primary consideration to generally be given greater weight than the best interests of minor children in Australia.

29    On remittal, the Minister again made a decision to cancel Mr Nweke's visa. The review of that subsequent decision was unsuccessful and the matter went on appeal to the Full Court. The submission advanced on that occasion was that the Minister had not treated the best interests of the children as a primary consideration: Nweke v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 79 at [21]. The Full Court (Allsop CJ, Flick and Robertson JJ) concluded at [29]:

In our opinion, the Minister did treat the interests of the children as a primary consideration and thus did not err either by applying the wrong test or by denying to the appellant procedural fairness. It is to be recalled that [Teoh] does not state more than that, procedurally, the interests of the children are a primary consideration, not the only, or the only primary, consideration.

30    The appeal in that instance had proceeded on the basis that the issue was whether the best interests of the children had been treated as a primary consideration. No issue of the kind that arises in the present case by reason of the terms of Direction 110 arose. I do not read the above passage as suggesting that Teoh required that the best interests of children must be treated as a primary consideration even in an instance where it was made clear that the decision would be approached on the basis that there may be other considerations that would be given (or may be given) greater weight.

31    The following additional authorities have considered the application of the reasoning in Teoh.

32    In Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5, the Full Court considered an instance where the Tribunal reasoned that such procedural fairness as is contemplated by the legitimate expectation referred to in Teoh had been afforded to the applicant (and his children) by a rehearing conducted by the Tribunal after an earlier review. As to the significance of that statement by the Tribunal, Burchett J (Branson J broadly agreeing) said (at 9):

The only question of procedural fairness raised by Teoh, whether on the view of Mason CJ, Deane and Toohey JJ, or on the view of Gaudron J, is the requirement to give notice 'if a decision-maker proposes to make a decision inconsistent with [the] legitimate expectation' that 'the best interests of the children were to be a primary consideration' (as Mason CJ and Deane J put it at 291-292); or the requirement to 'meet the respondent's legitimate expectation that [the decision-maker] would give the best interests of the children the consideration required by the Convention or inform the respondent of [the decision-maker's] intention not to do so in order that he might argue against that course' (per Toohey J at 303); or that 'procedural fairness required that, if the delegate were considering proceeding on some other basis [than the basis of taking into account as a primary consideration the best interests of the children], she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise' (as Gaudron J put the matter at 305). Since the requirement of procedural fairness would only be called into question if the Tribunal proposed not to treat the children's best interests as a primary consideration, and since the Tribunal had emphasised that the High Court 'did not compel [it] to act in that way', and it had stated that its 'original reasons for decision can still be regarded as legally intact' and that it 'intend[ed] to rely upon them, except where they are modified in these reasons', it is very difficult to understand the statement that procedural fairness 'has now been afforded' as indicating anything else than an intention to decide the case on the same legal basis as before, although after reconsidering those questions of fact agitated at the second hearing.

(original emphasis)

33    This reasoning is entirely consistent with the analysis of Teoh that has been set out above.

34    In Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510, Griffiths and Perry JJ at [28] cited Teoh for the following proposition:

The relevant principles are not in doubt. Procedural fairness requires that, if the Minister proposes to make a decision which does not accord with the legal requirement that the best interests of affected minor children be a primary consideration, prior notice has to be given and an adequate opportunity afforded so as to present a case against the taking of such a course …

35    Again, that statement of principle is consistent with what has been set out above.

36    In Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141; (2021) 286 FCR 89 at [42]-[44], the Full Court (Farrell, Rangiah and Anderson JJ) considered the effect of subsequent High Court authorities on the reasoning in Teoh. Their Honours expressed the view that Teoh remained binding but was to be confined having regard to what was said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [95]-[96], [98], [120]-[121], [147].

37    Finally, I note that in Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [64], Allsop CJ expressed the view that a modern way of expressing the principle derived from Teoh was to be found in the following statement by Gaudron J in that case:

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.

38    Consequently, having regard to the authorities relied upon by Mr Lynch and the additional authorities to which I have referred, to the extent that the foundation for Ground 1 is said to be inconsistency with a legal requirement to the effect that the best interests of the children were required to be treated as a 'primary consideration' irrespective of the terms of Direction 110, that foundation cannot be accepted.

39    Further, to the extent that it was submitted orally that Direction 110 could not be expressed in terms which made the best interests of minor children in Australia anything other than a primary consideration (such that the best interests of minor children had to be given equal weight with any other consideration and a direction pursuant to s 499 could not require otherwise), for reasons that have been given, the authorities relied upon by Mr Lynch do not support that submission.

40    It follows that Ground 1 must fail.

41    For completeness, I note that the Minister submitted that even if there was a requirement that the best interests of the children be considered as a primary consideration equally with other considerations, there was no foundation to conclude that the Tribunal had approached its task on the basis that the protection of the Australian community was to be given greater weight. For the following reasons, I do not accept that submission.

42    The Tribunal recorded that it must comply with Direction 110 (para 17). The Tribunal began the section of its reasons that was concerned with whether there was another reason why the visa cancellation should be revoked by referring to the requirement in Direction 110 to have regard to any relevant primary and other considerations contained in the direction (para 78). It did not quote those provisions. However, it did quote the whole of s 7 which includes the provision to the effect that the protection of the Australian community is generally to be given greater weight than other primary considerations (para 79). The obvious purpose of doing so was to make clear that the Tribunal was giving effect to that aspect of the direction.

43    It then began the consideration of the protection of the Australian community. At the outset of that part of its reasons it said (para 81):

[Direction 110] provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.

44    Again, the purpose of stating that requirement must have been to indicate that the Tribunal was aware of that part of the direction and was giving effect to it in the reasons that followed.

45    The Tribunal proceeded to deal with each of the primary and other considerations that were relevant. It first dealt with the protection of the Australian community. As to that primary consideration it concluded that it 'weighs strongly against revocation'. It then dealt with the other considerations.

46    After that, the Tribunal expressed its conclusion on the basis that the relevant considerations were required to be brought together as part of a single evaluation. It then said (para 179):

In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by [Direction 110]. The Tribunal has gone on to compare and balance all of the considerations to determine whether there is another reason the cancellation should be revoked.

47    It seems most unlikely that (a) having referred twice to the requirement to generally give greater weight to the protection of the Australian community; (b) having found that the protection of the Australian community weighs strongly against revocation; and (c) having not identified any reason why that general approach should not be followed, the Tribunal nevertheless did not give the protection of the Australian community greater weight than the other primary considerations in reaching its conclusion. In that regard, the Tribunal said (para 180): 'The Tribunal has considered all of the primary considerations, including the protection of the Australian community which weighs strongly against revocation in [Mr Lynch's] circumstances'.

Ground 2: Alleged failure to consider or have regard to certain evidence

48    The written submissions for Mr Lynch in support of Ground 2 were expressed in terms that the Tribunal did not consider or have regard to evidence that Mr Lynch was part of the children's household prior to being imprisoned. It was submitted that the fact that Mr Lynch was part of the children's household strengthened his role in their life and, consequently, was a significant matter that was relevant to any evaluation of the weight to be given to the best interests of those children.

49    However, in oral submissions it was conceded that there was a reference in the reasons to that aspect. In that regard, the Tribunal's reasons included the following:

(1)    reference to evidence from Mr Lynch's mother that Mr Lynch 'was the only one of her children that she could rely upon to look after his siblings should anything happen to her and that they had been previously reliant upon his employment income' (para 45) and that they 'want [Mr Lynch] back in their lives' (para 46);

(2)    reference to evidence from the children that they want Mr Lynch to remain in their lives and that they would be reliant on Mr Lynch if anything happened to their mother and referred to their evidence as to his involvement in their lives (para 149);

(3)    reference to evidence from Mr Lynch that his half-siblings live with their mother in a caravan and that Mr Lynch had been supporting them (para 140);

(4)    a finding that letters provided by the half-siblings were compelling and it is clear that they want Mr Lynch, their older brother, to be physically present in their lives (para 140); and

(5)    a finding (para 148) that:

The Tribunal accepts that separation from the children may mean that the children will be denied the physical presence of a male role model in their lives, noting however the presence of [Mr Lynch's] older brother in the children's lives. The absence of [Mr Lynch] as a male role model in the household will be more important for [Mr Lynch's] half-brother and infant niece.

(emphasis added)

50    The concession was properly made. It meant that the case advanced in support of ground 2 became, in substance, a complaint about the weight or the significance given to aspects of the detailed evidence concerning these matters. A complaint of that kind is insufficient to demonstrate jurisdictional error. It is for the Tribunal to evaluate the significance of particular aspects of the evidence.

51    The nature of the task that was required to be undertaken by the Tribunal when it came to an earlier form of direction which, like Direction 110, required certain primary considerations to be taken into account was considered by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 where the plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) said at [33]:

… The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

52    This is not a case where there is some part of Direction 110 that concerns matters that are required to be considered was alleged to have been not considered by the Tribunal: compare Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160 (referring to an earlier version of the direction).

53    In the present case, the required primary consideration was considered. The evidence before the Tribunal concerning Mr Lynch having been a member of the household and the effect of him not being physically present in the lives of the children was considered by the Tribunal. The Court was taken to aspects of the evidence but there was no evidence of a kind that it might be said was not addressed by the findings that the Tribunal made.

54    In those circumstances, the complaints made concerned the within jurisdiction evaluation undertaken by the Tribunal. They did not amount to allegations of jurisdictional error.

55    For those reasons ground 2 also fails.

Conclusion and orders

56    For reasons that have been given, the review application must be dismissed. It was accepted that costs must follow the event. There will also be an order that the applicant pay the costs of the first respondent to be taxed if not agreed.

Associate:

Dated:    15 September 2025