CFE16 v Minister and CFD16 v Minister
[2020] FCCA 1083
•7 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFE16 v MINISTER FOR IMMIGRATION & ANOR and CFD16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1083 |
| Catchwords: MIGRATION – Applicant for judicial review – protection visa – United Nations Convention on the Rights of the Child – where Tribunal failed to consider best interests of the child as a primary consideration – application allowed – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 101,107, 109, 140 Migration Regulations 1994 (Cth), reg.2.41 |
| Cases cited: Minister for Immigration and Ethnic Affairs v Teoh [ 1995] HCA 20; (1995) 183 CLR 273 Nweke v Minister for Immigration and Citizenship [2012] FCA 266 |
| Applicant: | CFE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1718 of 2016 |
| Applicant: | CFD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1719 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 17 February 2020 |
| Date of Last Submission: | 17 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 7 May 2020 |
REPRESENTATION
| Counsel for the Applicant in proceedings MLG1718/2016 and proceedings MLG1719/2016: | Mr Hartley |
| Solicitors for the Applicant in proceedings MLG1718/2016 and proceedings MLG1719/2016: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent in proceedings MLG1718/2016 and proceedings MLG1719/2016: | Mr Hosking |
| Solicitors for the First Respondent in proceedings MLG1718/2016 and proceedings MLG1719/2016: | Mills Oakley Lawyers |
ORDERS
IN PROCEEDINGS MLG 1718 of 2016
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 July 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
IN PROCEEDINGS MLG 1719 of 2016
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 July 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1718 of 2016
| CFE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
MLG 1719 of 2016
| CFD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants in these proceedings are husband (CFD16) and wife (CFE16). They rely on the same facts and circumstances of their applications. The applicants seek judicial review of the decisions of the Administrative Appeals Tribunal (‘the Tribunal’) made on 21 July 2016 with respect to each of them. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s visas under s.109 of the Migration Act 1958 (Cth).
Background
Each of the applicants are citizens of Iran. They arrived in Australia as irregular maritime arrivals in September 2010 with their son. The applicants said that they were stateless Faili Kurds and claimed that they would face a real chance of serious harm if returned to Iraq. In June 2010, the Minister exercised his power under s.46A of the Act to allow the applicants to apply for a protection visa for themselves and their son. Protection visas were granted in June 2011.
In January 2012, the applicants had a daughter, who, as a result of the visa status of the applicants at the time and having been born in Australia, is an Australian citizen.
In February of 2014, the applicants left Australia on an Australian issued Titre de Voyage. They returned in June 2014, and upon interview on entry back into Australia, admitted that they had returned to Iran and presented their Iranian passports. Not surprisingly, the delegate of the Minister gave the applicants Notice under s.107 of the Act of an intention to cancel the applicants’ visas on the basis that they had given incorrect answers to visa application questions. In substance, they had said that they were stateless Faili Kurds, yet had returned to Iran, following which they came back to Australia with Iranian passports. Iranian passports would not have been issued to stateless Faili Kurds.
The applicants’ claim that the Iranian passports they presented on return to Australia were false passports and maintained that they were Faili Kurds. In November 2015, the delegate decided to cancel the applicants’ visas under the Act.
The hearing before the Tribunal
The applicants applied to the Tribunal for a review of the delegate’s decision in December 2015 and had a hearing before the Tribunal member in April 2016.
In July 2016, the Tribunal affirmed the delegate’s decision to cancel the visas.
Unsurprisingly, in the circumstances, the delegate and the Tribunal found that there was non-compliance with the relevant provisions of the Act and that the discretion to cancel the visa needed to be considered under s.109.
It was not in issue before this Court, that the Tribunal had found that the applicant had failed to comply with s.101 of the Act, although the underlying fact was not conceded by the applicants.
Section 109 of the Act provides for the discretion as follows:
Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
When having regard to the relevant circumstances, reg.2.41 of the Migration Regulations 1994 (Cth) provides:
2.41 Whether to cancel visa—incorrect information or bogus document (Act, s.109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
The conclusions by the Tribunal, to the extent relevant to this application, were so similar that it is sufficient to refer to the decision record in CFE16.
The Tribunal member set out the background facts and circumstances and summarised the submissions of the applicants’ agent, made in December 2014, together with a statutory declaration in the same month, providing a long list of unnumbered dot points that appears at [9] of the decision. Contained within this list are the following relevant dot points:
…
· The visa holder and her husband have two children aged ten and three.
· [A] has just finished year 3 and English is his primary language. He speaks very basic Farsi
· [E] was born in Australia and is an Australian citizen. She only speaks English.
After making the findings that give rise to the discretion to cancel the visa, the Tribunal member turns to this issue: see [23] of the decision. At paragraph 24, the Tribunal member identifies the key parts of reg.2.41 in a list of ten dot points. The Tribunal member then goes on to address each of these considerations as a separate subheading in the reasons, each time forming a view with respect to each subheading of either: a) ‘I have given significant weight to these factors’; b) ‘I have given these matters only limited weight’; or c) ‘I have given some weight to this factor.’
The decision-maker, after addressing each of these ten factors under separate subheadings, continues on to an additional eleventh factor under the subheading “Non-refoulement obligations”, and concludes that Australia would not be in breach of its non-refoulement obligations and, therefore, this was not a factor that weighed against cancelling the visa. The decision-maker identifies that the applicants son would lose his visa under s.140 and then turns to consider, under a similarly titled subheading, “Interests of children in Australia.” The reasons in this regard are set out (at [44] to [47]) as follows:
44. The applicant has claimed that if his visa is cancelled, her two children will suffer significant hardship in Iran. It is claimed that they will be denied basic rights and not get the same standard of education in Iran. The applicant and her husband told the Tribunal that their daughter mainly speaks English and that they speak Kurdish and Farsi with their son but not at a good level. The applicant said that if her daughter returns she will not have the same facilities as Australia and would have to wear the hijab and that she wanted her daughter to have the freedom to bring home a boyfriend later in her life. She said her son's class sizes in Australia were small and that he would not want to go to school in Iran and that when he was there he wanted to return to Australia. She said he found everything was foreign there was scared by the traffic and people crossing the street. She said that the system there was very strict and he would not be able to put up with the situation.
45. I have taken into account the above matters and that [A] (who is 11 years old) has now spent several formative years in Australia including being educated in the Australian education system and that on his parents' evidence, he considers himself to be Australian. I accept that the level of services is not the same in Iran however, he has a shenasnameh and is an Iranian citizen with access to education [FN: Department of Foreign Affairs and Trade, DFTA Thematic Report Faili Kurds in Iraq and Iran, 3 December 2014 at 3.53] and he has some language skills in Kurdish and Farsi that would assist with his reintegration.
46. I have also taken into account that [E] is an Australian citizen but she also has a shenasnameh and is an Iranian citizen with access to education. She is very young (four years old) and her parents said they speak to her in all languages. I consider she would be able to return to Iran with her parents and integrate into Iranian society. Given her very young age, I consider it highly speculative that she will have an objection to wearing the hijab and it also highly speculative as to how she will react to the social restrictions in conservative Iranian society (such as in having a boyfriend).
47. Overall, I have given some weight to the interests of the children as a factor not to cancel the visa.
Whether there are mandatory legal consequences to a cancellation decision, such as:
· whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia's non–refoulement obligations
· whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and
· whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.
After considering a thirteenth factor under a subheading (prior to [48]), the Tribunal member concludes:
49. 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.
Grounds of Application
By amended applications filed 2 August 2018, the applicants contend the following grounds:
1. The Tribunal erred by denying the applicant procedural fairness:
Particulars
(a) The applicant suffered a practical injustice, in that:
i. it was incumbent upon the Tribunal that if it were proposing to make a decision on a basis other than that the best interests of the applicant's children were a primary consideration, it would have to inform the applicant of that, and it would have to provide the applicant with an adequate opportunity of presenting a case against the taking of such a course; and
ii. the Tribunal made its decision on a basis other than that the best interests of the applicant's children were a primary consideration; and
iii. the Tribunal did not inform the applicant of a proposal to make a decision on that basis, and it did not provide the applicant with an adequate opportunity of presenting a case against the taking of such a course.
(b) Further, or alternatively, the applicant suffered a practical injustice, in that:
i. the Minister's dele ate a roached her statutory task on the basis that the best interests of the applicant's children were a primary consideration; and
ii. the Tribunal made its decision on a basis other than that the best interests of the applicant's children were a primary consideration; and
iii. the Tribunal did not alert the applicant to the fact that the issue was live whether the interests of the applicant's children were or were not a primary consideration.
2. The Tribunal erred in that it failed to take into account a mandatory relevant consideration.
Particulars
(a) By the combined operation of ss 107(1 )(b)(i)(B) and 109(1)(b), the Tribunal was obliged to consider the content of the applicant's written response showing cause why her visa should not be cancelled ("Show Cause Response"); and
(b) the content of the applicant's Show Cause Response raised or ought to have been understood as having raised a submission that the best interests of her children were a primary consideration within the meaning of the Convention on the Rights of the Child 1990; and
(c) further, or alternatively, the Tribunal was obliged to consider the best interests of the applicant's children as a primary consideration by reason of:
i. the common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in the Tribunal's decision, which directly affected the child's individual welfare; or
ii. implication from the subject matter, scope and purpose of the Migration Act 1958 {Cth); and
(d) the Tribunal did not identify or consider the best interests of the applicant's children, as a primary consideration or otherwise, within the meaning of the Convention on the Rights of the Child 1990.
3. The Tribunal erred in that it constructively failed to exercise its jurisdiction.
Particulars
(a) By reason of one or more of:
i. the content of the applicant's Show Cause Response; and
ii. a common law right to have a child's best interests taken into account; and
iii. Art 3.1 of the Convention on the Rights of the Child 1990; and
iv. a matter of implication from the subject matter, scope and purpose of the Migration Act 1958 (Cth)
lawful exercise of the Tribunal’s jurisdiction required it to consider and determine the issue whether or not to the interests of the applicant’s children were to be taking into account as primary consideration; and
(b) The Tribunal did not consider or determine the issue whether or not to the interests of the applicant's children were to be taken into account as a primary consideration.
4. Alternatively, in purporting to give primary consideration to the best interests of the applicant's children, the Tribunal misdirected itself or asked itself the wrong question.
Particulars
(a) If the Tribunal did purport to give primary consideration to the best interests of the applicant's children, it did so in a way that involved misdirection to itself in that it:
i. failed to identify the decision that would be in the best interests of the children; and
ii. failed to treat the best interests of the children as a "primary consideration".
In this case, the applicants argue that the decision-maker failed to take into account the best interests of the children as a “primary consideration”. The term “primary consideration” comes from the United Nations Convention on the Rights of the Child (‘the Convention’) which was ratified by the Commonwealth executive in 1990 and entered into force for Australia on 16 January 1991. Importantly, Article 3 of the convention 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.
In this case, it therefore appears that at least a consideration in exercising the general discretion under the Act in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the children. In the Minister for Immigration and Ethnic Affairs v Teoh [ 1995] HCA 20 at [39]; (1995) 183 CLR 273 at 292, the High Court (per Mason CJ and Dean J) noted that:
A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.
In Teoh’s case, there was in force a ministerial instruction that required consideration of the Convention, as there was in Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 when the Full Court of the Federal Court considered a similar issue. Whether the Convention must be considered in circumstances where the ministerial instruction does not apply (as in this case) does not need to be addressed in this judgment as the delegate applied the Convention in the way contemplated by Teoh and Wan, and the Tribunal did not identify to the applicant that it intended to approach the case any differently. Thus, even if the Tribunal was not required to approach the case on the basis described in Teoh’s case or Wan’s case, it would not have afforded the applicants procedural fairness if it approached the case differently.
The real question for these proceedings is whether or not the reasons of the Tribunal member, read as a whole, indicate that the decision-maker did, in fact, have regard to the relevant consideration in the Convention as a primary consideration.
Importantly, the considerations other than a primary consideration concerning the best interests of the children may amount to sufficient matters to outweigh the primary consideration concerning the children’s best interests, and indeed, some of those other considerations may also be primary considerations in the sense described by the Court. The Federal Court helpfully explained the approach required in Wan (at the end of [32] of its reasons), saying:
32. …However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
The specific order in which the Tribunal dealt with the various considerations does not, of itself, indicate that it has demoted one consideration in comparison to others. However, the format of the reasons and discussion therein is indicative of each of the large variety of considerations being treated as equally relevant considerations, all being placed in the “melting pot” in order to form an ultimate conclusion. This approach does not accord with the requirements as set out by the Federal Court in Wan (at [32]), which is to identify the best interests of the children and then to assess the strengths of the other considerations to determine whether they outweigh the best interests of the children, which must be understood as a primary consideration.
Whilst the Tribunal member identifies that the children’s interests are being taken into account, the member only describes this factor, in the context of this case, as being given ‘some weight… as a factor not to cancel the visa’: see [47] of the decision. This does not appear to be the approach contemplated by Wan’s case, where one would identify the children’s best interests, and then consider whether the other matters were such as to outweigh the children’s best interests (assuming that the children’s best interests were served by staying in Australia). It appears, on a reading of the decisions as a whole, that the Tribunal member has considered the best interests of the children in a general sense, as part of the many considerations placed into a melting pot in order to reach the final conclusion. The decision-maker has not clearly identified what were considered to be the children’s best interests, and the reasons for that, before going on to weigh the other considerations against those best interests: see Wan at [26] and also Nweke v Minister for Immigration and Citizenship [2012] FCA 266 at [12]; Wilson v Assistant Minister for Immigration and Border Protection [2017] FCA 1337 at [32]
The distinctions in reasoning process may seem subtle until one considers the purpose and effect of the Convention. By adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make a primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures that it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed: see Brown v Minister for Immigration and Border Protection [2015] FCAFC 141 at [28].
When viewed in this light, the reasons given by the Tribunal do not, on a reasonable reading thereof, indicate that the decision-maker has adopted the correct approach as required by the Convention and the cases that have discussed its application in migration decisions.
As a result, it is appropriate that the decision be set aside and the matter remitted for rehearing.
I also note that the youngest child is an Australian citizen and, as a result of that status, is entitled to all of the protections and benefits of the Australian state. The cancellation of her parents’ visas, given her young age, may (on a practical level) mean that she is unable to take advantage of her status as an Australian citizen, which may be a factor that also needs to be considered by the tribunal.
Ultimately, it is a matter for the Tribunal upon the rehearing of this application and not for this Court to determine what is in the child’s best interests and how that affects the overall considerations.
The applications will be allowed and constitutional writs issued
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 7 May 2020
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