2005002 (Migration)
[2021] AATA 507
•15 January 2021
2005002 (Migration) [2021] AATA 507 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2005002
MEMBER:Antoinette Younes
DATE:15 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Statement made on 15 January 2021 at 1:04 pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – risk to the health, safety or good order of a segment of the Australian community – applicant charged with an offence – applicant granted bail – likelihood of the risk eventuating – intention to remain permanently – applicant’s spouse expecting a child – financial and psychological hardship – Convention on the Rights of the Child applying to unborn children – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Amendment (Character and General Visa Cancellation) Act 2014CASES
DOZ16 v Minister for Immigration and Border Protection [2017] FCCA 115
Gong v MIBP [2016] FCCA 561
Griffiths v MIMIA [2003] FMCA 249
JNMK v MHA [2019] FCA 1758
Kalm v Administrative Appeals Tribunal (2013) 215 FCR 221
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Mehta v Minister for Immigration and Border Protection [2015] FCA 1096
SZLRY [2012] FCA 1459
Wan v MIMA (2001) 107 FCR 133Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 5 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant has been charged with an offence under the Crimes Act 1900 (NSW). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 December 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record which indicates that New South Wales Police advised the Department that the applicant has been charged under the Crimes Act 1900 (NSW), with the offence of Sexual intercourse without consent (s61i, Law Part 271), relating to events alleged to have occurred in September 2018 when he was working as a Disability Support Worker, caring for the alleged victim. The applicant was arrested at the [named] Police Station [in] June 2019 and charged with the above offence.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) AND RESPONSE
On 14 February 2020, the Department sent to the applicant a NOITCC to which he responded on 28 February 2020.
In submissions responding to the NOITCC, the representative argued that:
·The NOICC does not clearly identify the risk that the applicant may pose to the safety of a segment of the Australian community, namely women. There is no reference to the applicant’s past conviction for an offence similar to the alleged offence. There is also no reference to any other past criminal conduct of the applicant. All the references in the NOICC come from the NSW Police Facts Sheet that tells the version of events recorded by the police, which may not necessarily be true. The NOICC does not identify how the version of events in the Facts Sheet would implicate the applicant so much so that he would pose a risk of safety to the segment of the Australia community.
·For the ground at s116(1)(e) to be made out, the delegate must also determine the likelihood of the risk eventuating.
·The applicant denies that he has committed the alleged offence and intends to plead not guilty at the next Court date [in] March 2020. His trial is scheduled to begin [in] November 2020, and he is confident that the charge will not uphold in the Court.
·[In] November 2019, the applicant was granted bail and was released from prison [later in] November 2019. The Court must have considered the risk to Australian women. The strict bail conditions mean that the applicant is unlikely to pose a risk to the safety of any member of the Australian community.
·The NSW Police initially charged the applicant for a total of four offences of similar nature of which three were later withdrawn.
·The NSW Police Facts Sheet should not be relied on for the purposes of determining the likelihood of eventuating of risk. The Facts Sheet is not an evidence of guilt. It is a document which mainly contains facts alleged by the victim which may not necessarily be true.
·The applicant has been in Australia for several years. He has not been convicted of any offence relating to causing an injury or harm to any member of the Australian community particularly women.
In support of the submissions, the representative provided a copy of the Case Conference Certificate and a Bail Acknowledgement. Post-hearing, the applicant provided a Notice of Listing on [a day in] September 2021 relating to the criminal matter, medical reports confirming that the applicant’s spouse is pregnant (8 weeks as at [date]), a Statutory Declaration from the spouse, and references.
The applicant gave evidence that three of the initial charges have been dropped and that the trial relating to the charge of the offence of Sexual intercourse without consent is listed in September 2021. The Tribunal explained to the applicant that the Tribunal considers that charge to be serious and that the Tribunal is of the view that being a support worker means a position of trust to care for a vulnerable person. The Tribunal referred to the response to the NOITCC and indicated that it would further consider the matters raised. The applicant said that the alleged victim gave evidence the day earlier and that he has pleaded not guilty.
The Tribunal explained to the applicant that the Tribunal had no role in making findings relating to the charges, including facts, guilt or innocence, as those are matters for the Courts.
The question is whether the ground for cancellation exists in this case. In submissions, it was noted that the NOICC does not clearly identify the risk that the applicant may pose to the safety of a segment of the Australian community, namely women, that there is no reference to the applicant’s past conviction for an offence similar to the alleged offence or to any other past criminal conduct of the applicant. It was argued that all the references in the NOICC come from the NSW Police Facts Sheet that tells the version of events recorded by the police, which may not necessarily be true. The NOICC does not identify how the version of events in the Facts Sheet would implicate the applicant so much so that he would pose a risk of safety to the segment of the Australia community. It was further submitted that for the ground at s.116(1)(e) to be made out, the decision maker must also determine the likelihood of the risk eventuating.
The Tribunal notes that the Act does not qualify or quantify the risk as being real, or significant, or substantial. Prior to enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014, the provision stated that the presence of the visa holder in Australia “is or would be a risk to the health, safety or good order of the Australian community”. The legislative intent is summarised at [13] of the Schedule 2 to Explanatory Memorandum as follows:
The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public. Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.
Section 116(1)(e) has been the subject of considerable judicial consideration. In Gong v Minister for Immigration and Border Protection[1], Judge Smith held that while the provision did not require there to be any solid or certain foundation before the cancellation power can arise, the decision to cancel had to be based on legally reasonable inferences: at [41]. In Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2], the Court observed that the concept of “risk” has an element of futurity to it and that reliance on past offending alone may not be sufficient to justify cancellation of the visa.
[1] Gong v Minister for Immigration and Border Protection[1] [2016] FCCA 561.
[2] Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 5 August 2020.
The Department’s procedural guidelines concerning visa cancellation under s.116(1)(e) state that the term ‘risk’ is not defined in the Act and is by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.
The applicant claimed that he has not been convicted of any offence relating to causing an injury or harm to any member of the Australian community particularly women. There is no evidence before the Tribunal to suggest otherwise and the Tribunal accepts that the applicant has no prior convictions, however he has been charged with a serious offence. The Tribunal accepts that the applicant has not been convicted and that he is entitled to the presumption of innocence. The Tribunal accepts that three charges have been dropped and that the applicant is defending the remaining charge. Regarding the submissions that the applicant was granted bail with strict bail conditions and that the Court must have considered the risk to Australian women, the Tribunal is satisfied that the grant of bail involves different legal processes to that of the visa cancellation scheme and this is reflected in Departmental policy; Departmental policy notes that the grant of bail does not necessarily mean that the person is not a risk. The Tribunal is mindful that the Tribunal need not quantify the degree of risk and the legislature had intended “…to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm”.
The Tribunal has considered the submissions very carefully and the evidence in totality. The Tribunal considers the charge of Sexual intercourse without consent to be serious, potentially involving a vulnerable person and the applicant who was a support worker, that is in a position of trust to care and to act in the best interest of those in his care. On the evidence, the Tribunal finds that s.116(1)(e) is enlivened and that the presence of the applicant in Australia may be or might be a risk to the alleged victim.
For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant who is a [Country 1] national came to Australia on a visitor visa. He said he did not come to Australia to visit as he fled his country through [another country]. He said his parents were murdered in 2018. He said he lodged the application for a protection visa in April 2017, three days after his arrival, based on insecurities and events occurring.
The applicant was granted a visitor visa with the intended purpose of a short stay visit. He stated that he came to Australia because he fled his country and not to visit. The Tribunal is concerned and gives some weight in favour of cancellation to the fact that the applicant had used the visitor visa to gain entry to Australia when his intentions were to remain permanently.
The Tribunal is not dealing with the application for a protection visa and as such the Tribunal makes no findings or comments about the merit of any claim advanced by the applicant. The Bridging Visa (subclass WA/010) subject to this cancellation, was granted in association with the application for the protection visa. The grant is to enable the applicant to remain lawfully in Australia until the determination of the protection visa. He has a pending criminal matter. He has a business in Australia. The applicant’s spouse is expecting a child. The Tribunal is satisfied that the applicant has a compelling need to remain in Australia.
The Tribunal gives this aspect weight in favour of the applicant.
·the extent of compliance with visa conditions
There are no visa conditions associated with the Bridging A visa.
The Tribunal gives this aspect neutral weight.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that he studied when he came to Australia, a [tertiary course] and a [further course] which he did not complete as a result of the events surrounding his parents’ death. He has worked in Australia, and currently in his [business], which is doing well. He said he is the main breadwinner and that his spouse stopped working due to COVID-19.
The applicant told the Tribunal that he married [in] 2020, but they have been together since 2017. He said they started living together from the end of 2019 after his release. He gave evidence that his spouse is currently expecting. He said his partner has had [previous] miscarriages, one occurred in March 2020. In terms of her lack of appearance as a witness before the Tribunal, he explained that she is very tired from being in Court with him every day to support him.
The Tribunal referred to the medical documents provided, noting that they do not necessarily mean that he is the father. The Tribunal asked for a DNA test. Subsequent to the hearing, the spouse provided a Statutory Declaration explaining that on medical advice, a DNA test cannot be provided due to the risk involved. The Tribunal accepts this explanation and has not drawn any adverse inferences from the fact that the applicant has declined the provision of DNA test results.
On the basis of the available information, the Tribunal accepts that the applicant is married and that the couple is expecting their first child. Given the medical reasons provided, the Tribunal accepts for the purposes of this review, that the applicant is the biological father.
The Tribunal accepts that the applicant wants to remain in Australia with his spouse whom he is supporting financially. The Tribunal acknowledges that the applicant and his spouse could suffer financial, emotional, and psychological hardship due to the cancellation. The Tribunal acknowledges that the applicant’s spouse is expecting and that it is in her interest that the applicant’s visa is not cancelled. It is in her interest and that of the foetus that she is well mentally, physically and psychologically. The Tribunal is satisfied that the cancellation of the applicant’s visa would have adverse impacts on her wellbeing and that of the foetus.
The Tribunal gives this consideration weight in favour of the applicant.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the cancellation arose were as a result of the applicant being charged with an offence. The Tribunal has noted that the applicant has pleaded not guilty. It is not open to the Tribunal to make findings in relation to the charge which is pending before the Court.
The applicant gave evidence that he is a good person who has never been in trouble previously. He said he prays to God five times a day and that he does not drink or smoke. He has provided references, referring amongst other things, to the applicant being trustworthy, reliable, spiritual[3], possessing great leadership skills[4], honest and peaceful[5]. The Tribunal has given some weight to that material. However, and as outlined above, the Tribunal takes the view that the offence of Sexual intercourse without consent is serious and, in this case potentially involving a vulnerable victim in circumstances whereby the applicant was in a position of trust, caring for the alleged victim.
[3] Letter from [an employer] dated 8/12/20.
[4] Letter from [a sporting organisation] dated 10/12/20.
[5] Letter from [a community organisation] dated 8/12/20.
The Tribunal gives this consideration significant weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The applicant responded to the NOITCC.
The Tribunal gives this consideration weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellation under s.140.
The Tribunal gives this consideration weight in favour of cancellation.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention. The applicant could also be impacted by s.48 of the Act and PIC 4013 which means that he may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.
The Tribunal is mindful that the applicant was granted the Bridging visa as he has a protection visa application on foot. In case of cancellation, he is likely to be detained until the protection visa application is determined. If granted, he could be released from detention and if it is refused, he could then be subject to removal based on the protection visa refusal.
The Tribunal considers potential detention as well as the s.48 bar and PIC 4013 to be intended legislative consequences.
The Tribunal gives this aspect neutral weight.
·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The applicant has lodged an application for a protection visa which has not yet been determined. The Tribunal considers it appropriate not to make any comments about the merit of any of the claims made in the application. It is reasonable to suggest that the application for a protection visa would be determined in accordance with established legal and policy principles which would assess if the applicant is owed Australia’s protection. However apart from protection claims which have not yet been determined, there is no evidence before the Tribunal indicating that Australia would be in breach of its non-refoulement obligations. The Tribunal gives this aspect neutral weight.
The Tribunal accepts that the applicant’s partner is expecting.
The question before the Tribunal is whether the Convention on the Rights of the Child (CRC) is applicable in this case. Is a foetus, a child? Article 1 of the CRC stipulates that for the purposes of the CRC, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. That definition does not specifically refer or capture a foetus or an unborn child.
There is Australian authority that an unborn child is included in the CRC definition of ‘child’, however, this appears not to have been followed or overturned; Griffiths v MIMIA[6] is authority that ‘child’ in CRC includes an unborn child. In SZLRY[7], the Court noted that it was not aware of any judicial authority supporting the proposition that Article 3 of the Convention applies to unborn children. SZRLY was followed in DOZ16 v Minister for Immigration and Border Protection[8], the Court holding that ‘child’ in CRC did not include an unborn child. In
[6] Griffiths v MIMIA [2003] FMCA 249.
[7] SZLRY [2012] FCA 1459.
[8] DOZ16 v Minister for Immigration and Border Protection[8][2017] FCCA 115.
DOZ16 v Minister for Immigration and Border Protection[9], the Court observed:
[9] DOZ16 v Minister for Immigration and Border Protection[9][2017] FCCA 115.
[54] It was submitted that because Australia had ratified the Convention on the Rights of the Child (CRC), the Delegate was required to consider as a primary consideration the best interests of any born and unborn children of the Applicant who might be affected by the cancellation of the Visitor visa. However, in my view no obligation arising from the CRC was imposed on the Delegate in the circumstances of this case for the following reasons.
[55] First, on its own terms the CRC only imposes obligations on States in relation to children within their jurisdiction. Article 2(1) of CRC provides:
Sates Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
…
[58] Second, Article 3(1) of the CRC did not apply to the Applicant’s child who was unborn at the time of the Delegate’s decision. Article 3(1) of the CRC provides:—
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.
[59] As Griffiths J said at [28] in SZRLY v Minister for Immigration & Citizenship [2012] FCA 1459:
For the following reasons, however, I consider that each of the three new grounds should be dismissed. First, it is to be noted that the appellant’s son was not born until after the decisions of both the delegate and the RRT. The springboard for each of the three fresh grounds of appeal is the obligation imposed by Article 3 of the United Nations Convention on the Rights of the Child (the Convention) to the effect that, in all actions concerning children, “the best interests of the child shall be a primary consideration”. “Child” is defined in Article 1 of the Convention as meaning “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. It is also to be noted that the Preamble to the Convention contains the following statement:
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.
Mehta v Minister for Immigration and Border Protection[10] decided that unborn children are not a mandatory consideration for s.501 purposes. In Kalm v Administrative Appeals Tribunal[11], the Court observed:
[10] Mehta v Minister for Immigration and Border Protection [2015] FCA 1096.
[11] Kalm v Administrative Appeals Tribunal (2013) 215 FCR 221.
[8] As appears from the extract set out above, the Direction picks up the definition of “minor” in s 5 of the Act, namely, “a person who is less than 18 years old”. As used in the Act (both in s 5 and elsewhere), the word “minor” is a noun. As used in cl 11(1)(b) of the Direction, the word is an adjective. However, the sense of the expression “minor children” in the Direction is clear: it means children less than 18 years of age. The word “child” is not defined in the Direction. Neither, at least relevantly to the present question, is it defined in the Act. But it must also be said that none of the many occasions upon which that word is used in the Act could include within its connotation an unborn baby. In my view, on a natural reading of cl 11(1)(b) of the Direction, the expression “minor children” does not encompass an unborn baby in its mother’s womb, both in the sense that such a biological entity is not a “child” in normal parlance and, to pick up the definition of “minor” in the Act and the Direction, in the sense that it is not a “person”.
[9] It is submitted on behalf of the applicant, however, that the court should take account of the Convention on the Rights of the Child (“the Convention”) to which Australia is a party. In the Convention “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is obtained earlier”. Although there is no presently relevant distinction between this statement of what it means to be a “child” and the definition of “minor” in the Act, the preamble to the Convention contains the following passage:
BEARING in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” …
It is submitted on behalf of the applicant that the qualifier “before as well as after birth” informs the meaning of “child” in the Convention, and, from there, likewise informs the scope of the “minor children” provisions of the Direction.
[10] Counsel for the Minister accepted that cl 11.2 of the Direction should be interpreted consistently with the Convention. He drew attention to Art 3.1 of the Convention, which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The expression “the best interests of the child” finds substantial reflection in cl 11(1)(b) of the Direction but, in the present context, recourse to this formula only begs the question. It assumes that there is a child in the relevant factual setting whose best interests arise for consideration. The correctness of that assumption is, of course, the very question which arises on the present application.
[11] Thus the debate, as reflected most obviously in the written outline filed on behalf of the Minister, shifted to the question of the meaning of “child” in the Convention. For his part, the applicant made the submission to which I have referred at the end of para 9 above. To resolve whatever ambiguity there might be in the Convention, I was invited by counsel for the Minister to have recourse to a publication by Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (3rd ed 2007). Counsel for the applicant resisted that suggestion, invoking in that regard Art 31 of the Vienna Convention on the Law of Treaties. I was, therefore, being led from what was an uncomplicated legal question — that arising under cl 11(1)(b) of the Direction — into the complexities and sensitivities of international law. I am not persuaded that such a journey is either necessary or desirable on the present occasion.
[12] Unlike an earlier direction under s 499 of the Act, the Direction does not refer to, or purport to give effect to, the Convention. As mentioned above, the Minister accepted that cl 11.2 of the Direction should be interpreted consistently with Art 3.1 of the Convention, but the present case is, nonetheless, an unsatisfactory vehicle for the determination of the much larger, and more difficult, question of whether the Convention itself applies to unborn children. Because of the clarity with which the answer to the question of construction arising under the Direction presents itself to me, I see no need to enter upon the issue of the scope of the Convention.
[13] While I note that the judgment of Griffiths J in SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459, to which I was referred by counsel for the Minister, is consistent with the view I expressed in para 8 above, that judgment was, relevantly, concerned with the meaning of the Convention: see [2012] FCA 1459 at [28]. As I have explained, I would prefer to decide the present case without recourse to the Convention.
In JNMK v MHA[12] , the Court reasoned:
[12] JNMK v MHA [2019] FCA 1758.
Ground 1 - the best interests of the unborn child
- By ground 1 the applicant alleges that the Tribunal misconstrued or misapplied paragraph 11.2(4) of Direction 65 to preclude as a primary consideration the best interests of the child who was unborn at the time of the Tribunal's decision.
- The applicant submitted to the Tribunal that it should treat the interests of the unborn child as a primary consideration. The Tribunal rejected this submission. It relied on two previous Tribunal decisions to the effect that an unborn child was not a 'minor child' or a 'child' for the purposes of that requirement, leading it to conclude that it would not treat the interests of the unborn child as a primary consideration. It did, however, advert to the impending birth of the child in considering the interests of Ms D under paragraph 12.1(b) of Direction 65.
- Counsel for the applicant described his position as a formal submission that SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 was wrongly decided. The error was said to have occurred when the judge in that case, Griffiths J, held that reference to 'child' in the United Nations Convention on the Rights of the Child does not reach an unborn child. The applicant did not contend that Direction 65 incorporated some other meaning of 'child'. He submitted that SZRLY and two other decisions of this court said to be to the same effect were also wrongly decided. They are: Kalm v Administrative Appeals Tribunal [2013] FCA 890; (2013) 215 FCR 221; and Mehta v Minister for Immigration and Border Protection [2015] FCA 1096; (2015) 238 FCR 439. However counsel conceded that they were not plainly wrong.
- There is a judicial duty to follow an earlier decision of another judge unless convinced that it is plainly wrong: see Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9 at [105]‑[107] (Colvin J) and the authorities cited there. In the absence of any contention that SZRLY, Kalm and Mehta are plainly wrong, let alone full submissions as to why, I will follow those decisions. Kalm, in particular, points to the conclusion that an unborn child is not a minor child for the purposes of the requirement in Direction 65 to consider the best interests of minor children (it was decided under a previous, but materially similar Ministerial direction).
- I do not uphold ground 1.
The Tribunal observes that the AAT has often applied the reasoning in Ly and MIMA [2000] AATA 339, most recently in HWYY and Minister for Home Affairs (Migration)[13] that the CRC does not apply to an unborn child. The Tribunal acknowledges that there is a difference in the determination of s.501 cancellations as compared with Parts 5 and 7 cancellation. However, it is reasonable to suggest that the same reasoning in relation to an unborn child is applicable.
[13] HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602.
In Ly and Minister for Immigration and Multicultural Affairs[14], it was noted:
[14] Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 (28 April 2000).
….64. I agree with Mr Niall's submission that there are specific references in the Convention to unborn children or to their birth. They are:
"BEARING in mind that, as indicated in the Declaration of the Rights of the Child, 'the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth'" (part of Preamble);
"The child shall be registered immediately after birth and shall have a right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents." (Article 7, clause 1)
…
65. These references must also be considered in light of Article 1 which provides that:
"For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."
66. Whether or not the Convention applies to an unborn child depends upon whether that unborn child is a "human being". The concept of "humanness" is found also in the light of other international instruments including the Universal Declaration of Human Rights 1948 ("UDHR"), the Declaration of the Rights of the Child 1959 ("DRC") and the International Covenant on Civil and Political Rights 1966 ("ICCPR"). Unlike the Convention, both the DCR and the ICCPR are set out in a schedule to legislation (Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986). It is questionable whether their being set out in this way gives them any status different from that accorded to the Convention. In relation to the Charter of the United Nations, which was set out in the Schedule to the Charter of the United Nations Act 1945 and approved by s. 3 of that Act, the High Court said that there was no intention to make the Charter binding upon persons within Australia as part of its municipal law. Since it had not been carried into effect by appropriate legislation, it could not be relied upon as justification for executive acts that would otherwise be unjustified (Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 per Barwick CJ, Gibbs and Stephen JJ). I will not dwell on that further for they must at least have the status accorded the Convention and their relevance in this case is not so much their status under Australia's municipal law as the context they provide in the interpretation of the Convention.
Each of the international instruments makes reference to humanness in some form or other. In the UDHR, for example, a declaration is made that "all human beings are born free and equal in dignity and rights" (Article 1) and it is recognised that "... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" (Preamble).
68. The concept of "humanness" is expressed in similar terms in the ICCPR (Preamble). Article 6 of the ICCPR states that:
"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life…"
…
70. The point at which a "human being" exists is a question that has engaged many religious, philosophical, scientific and indeed, legal debates. It is at the heart of any abortion debate. It has engaged the criminal courts from time to time for there can be no homicide unless both the defendant and the victim are human beings. In Attorney-General's Reference No. 3 [1997] UKHL 31, 24 July, 1997, Lord Goff of Chieveley said:
"Except under statute an embryo or foetus in utero cannot be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not murder. The foundation authority is the definition by Sir Edward Coke of murder by reference to the killing of a 'reasonable creature, in rerum natura;" Co. Inst, Pt III, ch 7, p. 50. The proposition was developed by the same writer into examples of prenatal injuries as follows:
'If a woman be quick with child, and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child; this is a great misprision, and no murder ...'.
It is unnecessary to look behind this statement to the earlier authorities, for its correctness as a general principle, as distinct from its application to babies expiring in the course of delivery or very shortly thereafter, has never been controverted. It can, for example, be found in Blackstone's Commentaries on the Laws of England, 17th ed. (1830), vol. 4, p. 198, Stephen; Digest of the Criminal Law (1877), p. 138, Smith & Hogan; Criminal Law, 8th ed. (1996), p. 338 and in many other places over the years."
71. In Australia, the position at common law was summarised by Barry J in R v Hutty [1953] VicLawRp 48; [1953] VLR 338:
"A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power and living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or of manslaughter or of infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother's body and is living by virtue of the functioning of its own organs." (page 339)
72. There have been a number of cases considering the position of unborn children and their rights under the civil law. Many were comprehensively canvassed by Gillard J in Yunghanns v Candoora No. 19 Pty Ltd, (unreported, [1999] VSC 524, 15 December, 1999). Those cases recognise that an unborn child may be protected by the municipal law and may possess rights but whether or not he or she does so depends upon one or other of two things. The first is the construction of the particular legislative provision or provision of the particular document, such as a trust deed, under consideration. The second depends upon the application of a legal fiction that he or she is deemed to be a person in certain circumstances. If so deemed and if born and attaining the requisite legal capacity to institute proceedings for an infringement of those rights, he or she may do so and obtain a remedy for their infringement even though that infringement occurred while he or she was yet to be born. The application of the legal fiction was explained in the judgement of Gillard J in Watt v Rama [1972] VicRp 40; [1972] VR 353 (Winneke CJ, Pape and Gillard JJ):
"From those cases it must be accepted that there is a rule of law which recognises that an unborn child may possess rights. This implies there are correlative duties imposed on others in favour of the unborn child. It also implies that an unborn child is deemed to be a 'person' where the right is for his benefit, so that if he survives his birth and obtains the requisite capacity to institute proceedings for an infringement of his rights, he may do so and obtain a remedy for the infringement when he was en ventre sa mére." (page 376)
73. That brings me back to the Convention and to whether an unborn child can be a human being within its context. It seems to me that an unborn child cannot be regarded as a human being in that context. That is not to say that an unborn child does not receive acknowledgment in the Preamble to the Convention and specific recognition that it requires special safeguards and care, including appropriate legal protection, before as well as after birth. Equally, the unborn child receives specific recognition in the DRC and implied recognition in the ICCPR's prohibition of capital punishment upon pregnant women. But it is specifically because the international instruments need to give specific or implied recognition to unborn children in specific circumstances that adds weight to the conclusion that its general provisions relate to a child who is separate from its mother and so has become a human being as it has been understood at common law. Apart from the specific and implicit references to the unborn child in the Convention, the remainder are to the child who has been born and is leading an existence separated from his or her mother's body.
74. Paragraphs 2.13-2.16 of the Minister's direction refer to a "child [who] is or would be less than 18 years of age at the time when the decision is intended to come into effect" (paragraph 2.13). As the direction was drafted after the High Court's judgement in Teoh and in view of the reference to the age of a child, I have concluded that the Minister was referring to a "child" in the sense in which the word was used in the Convention. That means that, in Chhun Fong's case, the best interests of her unborn child are not a primary consideration in this matter under either the Convention or the Minister's directions. The fact that she is expecting a child to an Australian citizen is, however, one of the considerations which must be taken into account. The fact that Chhun Fong has become stepmother to Carol Tan, an Australian citizen, and so has a parental relationship with that child, is a primary consideration which must be taken into account.
There is academic opinion that an unborn child is not included; Duxbury, Alison; Ward, Christopher, The International Law Implications of Australian Abortion Law[15] observed:
[15] Duxbury, Alison; Ward, Christopher --- "The International Law Implications of Australian Abortion Law" [2000] UNSWLawJl 24; (2000) 23(2) UNSW Law Journal 1.
In considering the right to life of the woman, attention must also be given to the question whether the foetus has any competing right to life under international law. It has been suggested that international law does recognize the right to life of the unborn child and therefore domestic cases should be argued with that international obligation in mind.[120] However, at present it would appear that international human rights law does not recognise the absolute right to life of the unborn child[121] The Preamble to the Declaration on the Rights of the Child, a non-binding international instrument, provides that the child “needs special safeguards and care, including appropriate legal protection, before as well as after birth”.[122] This safeguard is also found in the Preamble to the Convention on the Rights of the Child. While this would suggest that the foetus is entitled to protection, a statement was included in the Travaux Préparatoires to the Convention that in “adopting the preambular paragraph, the Working Group does not intend to prejudice the interpretation of art 1 or any other provision of the Convention by State Parties”.[123] Article 1 of the Convention provides that:
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
The effect of the Preamble, read together with the statement of the Working Group, is that states may extend their definition of a child to the foetus, but this cannot be seen as an obligation under either customary international law or treaty law.[124] States have entered reservations and declarations to art 1.
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Under the common law, the traditional position is stated in R v Hutty:
legally a person is not in being until he or she is fully born in a living state. A baby is fully and completely born when it is completely delivered from the body of its mother.[125]
Statutory definitions to the same effect are provided in Queensland, Western Australia and Tasmania.[126] Williams J in the Supreme Court of Queensland confirmed this approach in K v T when he held that an unborn child did not have legal rights which could be enforced prior to and not dependent upon its birth.[127] There are decisions which support a child’s right of action for negligence in respect of prenatal injuries.[128] Similarly, the English Court of Appeal in Attorney-General’s Reference (No 3 1994)[129] held that a defendant could be liable for the murder or manslaughter of a baby where he stabbed the child’s mother when she was 23 weeks pregnant. The child was subsequently born alive, but later died as a result of the defendant’s assault. It was held that there was no legal requirement that a child was a person in being when the act which caused death occurred, provided she was a person in being when she died.[130] While a recent report of the Joint Standing Committee on Treaties on the Convention on the Rights of the Child recommended that the Government “investigate the adequacy of support services to enable women to contemplate alternatives to abortion”,[131] the Committee did not state that the unborn child has an absolute right to life.
The wording of art 1 of the Convention on the Rights of the Child can be distinguished from the American Convention on Human Rights which provides in art 4(1) that the right to life “shall be protected by law and in general from the moment of conception”. Although this would appear to protect every foetus’ right to life, the words “in general” were included by states in recognition of the need for exceptions in the case of rape or in order to save the mother’s life.[132] This interpretation is reinforced by the Inter-American Commission of Human Rights in the Baby Boy Case,[133] in which a majority found that United States abortion laws did not contravene art 1 of the American Declaration on Human Rights which provides that “every human being has the right to life”. In addition, the Commission relied on statements made during the drafting of the American Convention on Human Rights to suggest that, in its view, the arguably more extensive protection guaranteed in art 4(1) of the Convention did not affect the legitimacy of abortion laws.[134]
The European Commission on Human Rights has considered the right to life of the unborn child in the context to abortion legislation. In Paton v United Kingdom,[135] the European Commission considered whether the foetus was protected by art 2(1) of the European Convention which provides that “[e]veryone's right to life shall be protected by law”. In this case, the partner of a pregnant British woman challenged her ability to terminate her pregnancy without his consent. The Commission held that a 10-week-old foetus could be aborted under English law in order to protect the physical or mental health of the woman.[136] Thus, art 2 does not recognise the absolute right to life of the unborn child, although the question of whether the unborn child is protected at all by the Convention was left open. However, the protections in the remainder of art 2 and the other articles of the European Convention would appear only to apply to persons already born. This interpretation of the right to life was again upheld in H v Norway,[137] where it was decided that a 14 week old foetus could be aborted where the “pregnancy, birth or care for the child may place the woman in a difficult situation of life” (as provided in the relevant Norwegian statute). However, the European Commission would not exclude that in certain circumstances there may be protection for the unborn under art 2, although these circumstances were not elaborated upon.[138]
The Tribunal is satisfied that on balance of the available material, the Tribunal is not required to treat the best interests of unborn children as a primary consideration. In the course of the hearing, the Tribunal alerted the applicant that the Tribunal might not give the unborn child primary consideration. The Tribunal has acknowledged that the applicant’s spouse is expecting and that it is in her interest that the applicant’s visa is not cancelled. It is in her interest and that of the foetus that she is well mentally, physically and psychologically. The Tribunal has previously given favourable weight to this aspect.
This consideration relates to whether there would be breach of Australia’s international obligations. The Tribunal is satisfied that on the available material, cancellation of the applicant’s visa would not result in a breach of Australia’s international obligations.
The Tribunal gives this aspect weight in favour of cancellation.
·if it’s a permanent visa, whether the former visa holder has strong family business or other ties in Australia
The Bridging A visa is not a permanent visa. Under other considerations, the Tribunal has given weight in favour of the applicant because he has a spouse in Australia who is expecting their first child and he has a business.
The Tribunal gives significant weight in favour of cancellation to the fact that the Bridging A visa is not a permanent visa.
·any other relevant matters
There are no other matters requiring consideration.
Concluding remarks
The Tribunal has carefully considered the material before it individually and cumulatively.
There are limited aspects in the applicant’s favour, essentially relating to his own circumstances. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation. The applicant has been charged with an offence that potentially involves a vulnerable person. The Tribunal respects and gives regard to the doctrine of the presumption of innocence, however, the threshold in cancellation under s.116(1)(e ) is designed by the legislature to capture charges and there need not be a conviction for that Section to be enlivened.
The Tribunal considers that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.
The Tribunal has decided that the ground for cancellation exists and that having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Antoinette Younes
Senior Member
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