Cye23 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1436
•2 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYE23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1436
File number(s): BRG 615 of 2023 Judgment of: JUDGE EGAN Date of judgment: 2 September 2025 Catchwords: MIGRATION – Whether the Tribunal failed to make its decision having regard to the best interests of a child being a primary consideration in its decision-making process – where Tribunal duly carried out its decision-making function – where no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), ss. 101, 101(b), 108, 109, 109(1) Cases cited: Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
DXQ16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1184
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of last submission/s: 20 August 2025 Date of hearing: 19 August 2025 Place: Brisbane Counsel for the Applicant: Mr A. Hartnett of Counsel Solicitor for the Applicant: Allens Lawyers Counsel for the Respondents: Mr J. Byrnes of Counsel Solicitor for the Respondents: Australian Government Solicitors ORDERS
BRG 615 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYE23
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
3 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent be amended to “Administrative Review Tribunal.”
3.The Amended Application for Review filed on 31 July 2025 be dismissed.
4.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of Iran who lodged a Protection Visa Application on 27 February 2012.
The applicant was subsequently granted a Subclass 866 (Protection) Visa.
On 31 March 2022, a delegate of the Minister cancelled the visa pursuant to the provisions of s.109(1) of the Migration Act 1958 (Cth) (the Act), because the applicant had not complied with the provisions of s.101(b) of the Act at the time he made his visa application. The delegate found that at the time that the applicant made his visa application, he had provided incorrect information relating to his date of birth. The applicant’s actual date of birth was 23 July 1986, but the applicant declared in his visa application that his date of birth was 23 July 1995. The delegate found that by the provision of an incorrect date of birth, checks by the Department concerning the applicant’s identity, character and security were unable to be comprehensively completed. It was also found that the provision of a false birth date had been partly the reason for the grant to the applicant of the protection visa. Significant weight was given to such factors in the decision by the delegate to cancel the visa.
Sections 101, 108 and 109 of the Act relevantly provided as follows:
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
…
108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
109 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.
The applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal). The applicant subsequently appeared before the Tribunal to present arguments and make submissions in February, March, August and September 2023. At the hearing on 14 September 2023, the applicant conceded that he had provided incorrect information as to his date of birth at the time he made his visa application. It was also conceded that grounds for cancellation of his visa existed.
On 2 November 2023, the Tribunal affirmed the decision of the delegate.
On 5 December 2023, the applicant filed an Originating Application for Review of the decision of the Tribunal to affirm the decision of the delegate.
Grounds of Review
On 31 July 2025, the applicant filed an Amended Application for Review, the grounds of which were as follows:
1. The Tribunal’s decision is affected by jurisdictional error in that the Tribunal:
a. denied the Applicant procedural fairness by expressing to the Applicant that the best interests of the Applicant’s minor child (‘A’) were the paramount consideration in the review but arriving at its decision otherwise than as it expressed to the Applicant; and/or
b. erred in law in construing what the ‘best interests’ of A were and, conducted its discretionary ‘weighing’ exercise otherwise than in accordance with s 109(1) of the Migration Act 1958 (Cth).
Particulars
i. Grounds 1(a) and 1(b) are different ways of conceptualising the same error (DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 at [34]-[35].
ii. It was incumbent upon the Tribunal that if it were proposing to make a decision on a basis other one where the best interests of the ‘A’ was a primary consideration, it should have informed the Applicant of that course so that the Applicant had an opportunity to persuade the Tribunal not to do so.
iii. The Tribunal:
1. did not identify what “A’s” best interests were for the purpose of identifying what decision was in her best interest (TD [48]ff);
2. treated “A’s” best interests as one of several considerations of equal weight (rather than of paramountcy as the Tribunal expressed it would) (TD 48)
3. inconsistently reasoned that it had given weight to “A’s” potential emotional and psychological distress which would be occasioned by the decision to cancel the Applicant’s visa (TD [95]) while expressing that it gave ‘no weight’ to “A’s” best interests ‘against cancellation of [the Applicant’s] visa (cf: TD [63]).
iv. Because of the matters in particulars (i) to (iii):
1. the Applicant was denied procedural fairness; and/or
2. the Tribunal erred in law by failing to take into account a mandatory relevant consideration.
v. Each of the errors in particular (iv) were material in that there is a realistic possibility that the result could have been different had the Tribunal not made the errors.
The grounds of review do not question the correctness of the Tribunal’s decision other than in relation to its decision that the applicant had not established that it was in the best interests of his daughter ‘A’ that his visa shouldn’t be cancelled.
Counsel for the applicant relied upon the judgement of Steward J in DXQ16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1184 at [34] – [37] inclusive where His Honour held:
34.The decisions of Wan and Vaitaiki bind me, although there may be a question as to whether Vaitaiki’s precedential force is diminished in the event their Honour’s reasoning relied upon an expression of principle that was agreed between the parties: Coleman v. Power [2004] HCA 39; (2004) 220 C.L.R. 1 at 44-45 [79] per McHugh J. In my very respectful view, on one possible view Vaitaiki misstates the principle to be derived from the judgment of Mason C.J. and Deane J. in Teoh. Their Honours in Teoh specifically did not state that a decision maker is bound to take into account the best interests of any children as a primary consideration. That was because Art. 3(1) did not (and does not) form part of the domestic law of Australia. This is made clear in the passage I have set out above from page 291 of the reasons. Rather, a decision maker is obliged to give notice if she or he intends to act inconsistently with the Convention. The giving of notice affords the applicant with an opportunity to answer it. In this way, the error in Teoh may be characterised as a breach of procedural fairness. Vaitaiki perhaps expresses the principle differently. Burchett J. decided that a decision maker was bound to take into account the best interests of the children, unless she or he had given notice that she or he would not do so. Branson J., perhaps on one view, went even further. Her Honour decided that a decision maker more generally was bound to consider the best interests of the children. Neither expression of the principle ostensibly requires the presence of a finding that a decision maker had first proposed to act inconsistently with the Convention; it was sufficient that she or he in fact had so acted. If that is so, it may be the case that this type of error should not really be characterised as a breach of procedural fairness; rather it appears to have transformed into an error of law arising from a failure to take into account a relevant consideration.
35. A possible consequence of the way the test is expressed in Vaitaiki is that a decision maker who mistakenly fails in her or his reasons to consider the best interests of a child as a primary consideration, or who otherwise by her or his reasons is shown to have misunderstood that obligation, will still be found to have breached the rules of procedural fairness even though, in such a case, there is nothing which such a decision maker could relevantly give notice about. For example, a decision maker might earnestly seek to apply Art. 3(1) of the Convention, but fail to give the best interests of a child the correct degree of primacy. Based on Vaitaiki, such a decision maker may possibly have failed to provide procedural fairness, and will thus have erred at law.
36. The appellants submitted that the Vaitaiki approach was supported by recent decisions of this Court. In Nweke v. Minister for Immigration and Citizenship [2012] FCA 266; (2012) 126 A.L.D. 501, a decision to cancel a visa on character grounds pursuant to s. 501A of the Act was set aside because the Minister had failed to treat the best interests of the applicant’s children as a primary consideration. Jagot J. said at 508 [21]:
Applying the reasoning in Vaitaiki and Wan it is apparent that the minister did not in fact treat the best interests of the applicant’s children as a primary consideration in the decision whether or not to cancel the applicant’s visa. The minister could not do so because he never confronted the central question of what the best interests of the children required him to decide with respect to the proposed deportation of their father. Not having done so as his starting point, the minister also could not then assess whether any other consideration outweighed the best interests of the children understood as a primary consideration. For these reasons the minister departed from the legitimate expectation founded on the Convention and thus denied the applicant procedural fairness. The minister’s decision is thus vitiated for jurisdictional error.
37. Nweke was followed by Katzmann J. in Lesianawai v. Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 A.L.D. 27. In that case, another Ministerial decision to cancel a visa pursuant to s. 501A was set aside because of a failure to identify the best interests of the children as a primary consideration: at 35 [43]. More recently, in CFE16 and CFD16 v. Minister for Immigration & Anor [2020] FCCA 1083, Judge Reithmuller well summarised the applicable principle as follows at [21]:
The real question for these proceedings is whether or not the reasons of the Tribunal member, read as a whole, indicate that the decision-maker did, in fact, have regard to [the best interests of the children] as a primary consideration.
In my view, I am clearly bound to follow and apply the expression of the rule in Teoh, as formulated in Vaitaiki and followed by subsequent decisions of this Court.
In the light of the submissions made on behalf of the applicant to the effect that the Tribunal failed to identify what A’s best interests were, or that it otherwise treated A’s best interests not as the paramount interest to consider, it is appropriate that the whole of the Tribunal’s reasons under the heading ‘The Best Interests of Children’ be set out as follows:
The best interests of children
48. I have considered the possible effect of the cancellation of the visa in terms of Australia’s obligations under the Convention on the Rights of the Child (CRC), and in particular Article 3 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.
49. The Applicant has an Australian citizen daughter, ‘A’, born 2 February 2018. His statutory declaration of 9 December 2021 relevantly claimed:
[A] is my whole world. I do not want my daughter’s future to be harmed because of my mistake …
I had an informal agreement to pay child support to [the mother]. I gave her money whenever she asked for $50 or $100. When our daughter was born I had spent about $8000 to buy a cot, pram, clothes and anything else we needed for her.
The statutory declaration then narrated the circumstances in which he and the mother separated in 2019 and made a number of allegations against her, including claims that the attendance of ambulance officers and police were required in 2018 and 2019. It continued:
After we broke up in 2019, I used to see my baby in [the grandmother’s] house once a week.
[The mother] again refused to allow me to see our daughter from around January or February 2020 when I went to Canberra for work. Initially the excuse my ex and her mother gave me for preventing me from seeing our daughter was the risk of coronavirus … They have also made a lot of other excuses since then but I do not believe those excuses have any valid basis …
Although I video call with my daughter twice a week, [the mother] still refuses to all me to see my daughter in person. This breaks my heart as I love my daughter very much. I intend to again seek legal advice about how I can be allowed to see my daughter in person.
50. At the hearings in February, March and August 2023, I asked if he would consider providing his bank statements to the Tribunal, so that the screenshots of the payment receipts he had provided could be verified and any additional financial support or purchases for the child’s benefit could be identified. It also asked him to provide any evidence of the twice-weekly video calls.
51. In his statutory declaration of 11 September 2023, the Applicant stated:
I have paid a solicitor from Tang Lawyers to file an application at the Federal Circuit Court of Australia in relation to the matter of how much time [A] spends with each parent. Initially she advised that it was best to wait for the cancellation matter to be finalised but I do not understand how they are related. I have spoken to my lawyer again recently and she has advised that she is still working on the application.
For the past few months [the mother] has been sending me text messages asking to start seeing [A]. She is regularly sending me photos of [A] and herself.
Based on the advice of my psychologist, I have not responded to [the mother’s] text messages. My psychologist has told me that because of what happened to me in the past with [the mother] making allegations about me and to avoid any potential complications, it is best not to respond to her and not to engage with her directly so as keen as I am to start seeing [A], I am waiting for the legal process to take its course so I can start being part of [A’s] life again …
Senior member has requested me to provide evidence of paying child support for my daughter since she was born.
I have requested the bank for itemised statement, but I was told that the records only show the last two years (which I have not claimed that I have paid regular child support). I also went to my representative’s office and asked her for help to download my statements but we faced the same problem. It is only possible to search transactions from the last two years and I have attached a screenshot of this from my bank page.
52. At the hearing on 14 September 2023, the Tribunal asked the Applicant about this screenshot from his Commonwealth Bank app. He said that it showed that details were only available for the last two financial years. The Tribunal put it to him that the screenshot did not support the claims in paragraph 74 of his statutory declaration, rather that he had attempted to search transactions, instead of downloading his bank statements. That is, he had attempted to isolate relevant transactions rather than to provide the statements. He said that he had not claimed to have provided child support in the last two years, because of the Covid situation and his own financial problems owing to his visa situation. The Tribunal suggested that he could provide evidence of his inability to provide child support if he chose, by disclosing the relevant bank statements.
53. The Tribunal took the Applicant to his claim to have paid $8000 to purchase baby and nursery supplies when his daughter was born. The Tribunal asked if there was any record of this: it was not necessary to produce receipts because a pattern of expenditure would be readily discernible from his bank statements. the Applicant undertook to provide his bank statements. However, no bank statements were subsequently produced to the Tribunal.
54. The Tribunal took the Applicant to the text messages from his former partner. It asked why he had not replied to any of these. He said that he had explained to his psychologist his assessment of the mother’s character and the effect on him of interacting with her and, that his psychologist had advised him not to respond to her. He said that, further, the mother’s practice was to invite him to interact with his daughter and then to cancel any arrangement that was made. The Tribunal put it to him that he had provided no such advice from his psychologist and no evidence (such as screenshots of text messages) of any pattern of the mother’s alleged behaviour.
55. The Applicant said that he had made several attempts at mediation, but they had all failed. The Tribunal put it to him that the correspondence he had submitted indicated that mediation did not proceed but did not provide any reason for that. The Tribunal was referred to letters from his lawyer, Ms Tang, of 2 March 2023 and 11 September 2023. The Tribunal suggested that what could be divined from these letters was that nothing had happened. It was submitted on his behalf that there were reasons for this. The Tribunal referred to paragraphs 39 to 62 of the applicant’s first statutory declaration, in which he made serious allegations against the mother, none of which was supported by documentary evidence that he might be expected to be able to produce. For example, it was open to him to request copies of police and ambulance reports naming or relating to him through Right to Information processes.
56. The documentary evidence in support of the Applicant’s claims to have provided financial, material and parental support to his daughter is very slight, despite the Tribunal giving detailed descriptions of the material it would expect to see. He has provided screenshots of 15 electronic receipts he claimed recorded child support payments to the mother. They amount to a total of $1,890 over the period 28 May 2018 to 31 January 2023. This is a very small amount over a period of some five years but, given that the Applicant (according to his tax returns) had a very modest income over this period, this may have represented all he could afford. The Tribunal indicated to the Applicant that, in addition to the capacity of screenshots of receipts to be Photoshopped, the receipts were of little evidentiary value if the payments they were said to represent could not be cross-referenced to his bank statements and considered in the context of his overall financial position. In the absence of the bank statements, which were repeatedly requested by the Tribunal and which were promised but not delivered, the Tribunal cannot be satisfied that the financial welfare of A would be materially affected by the cancellation of the visa.
57. As to the best interests of A being served by the Applicant continuing to live in Australia and being available to play a parental role in her life, the evidence is by no means satisfactory. In his evidence to the Tribunal, the Applicant said that he had not seen A since about late 2019 or early 2020. The reason for this, he said, was the unreasonable behaviour of the mother and the grandmother. However, there was nothing in the documentary material he supplied that allowed his claims in that respect to be accepted with any confidence. There was no independent documentary support for his allegations of the mother’s violence and neglect or the attendances by police ambulance officers, despite him being a named party to the attendances, nor is there any evidence of an attempt to obtain any such material. The evidence in relation to his attempts to obtain parental orders is very sparsely documented. The evidence indicates that he issued instructions to Phoenix Law on 6 February 2018 (i.e., 4 days after the birth of the child) and paid $2000 to the firm the following day. The firm’s email to him of 6 February 2018 indicates that they had drafted an application to have A’s birth register amended to give A his family name and also recommended that he approach Relationships Australia for mediation on parenting arrangements. He claimed in his statutory declarations that the lawyers also wrote to the mother, following which she allowed him to see the child over the next eighteen months. There is nothing in the correspondence to indicate that the lawyers understood this to be their instructions and there is no copy of any letter to the mother.
58. The records the Applicant produced in relation to subsequent attempts to have contact with A comprise the s 60I certificate, which is dated 12 November 2020 and some correspondence from Legal Aid Queensland and two additional solicitors’ firms. The certificate states that neither the Applicant nor the mother attended family dispute resolution because, having regard to the matters mentioned in sub-regulation 25(2), it would not be appropriate to conduct the proposed family dispute resolution. These reasons include a history of family violence, a risk of child abuse, the safety of parties, the emotional, psychological or physical health of the parties, or the ability of people to negotiate freely. It cannot, of course, be inferred from this document whether either or both of the parties have given cause for any of these concerns. The certificate is not signed (there being a discretion for the practitioner not to give a signature), and there is no other means to ensure that it is an authentic document. The proposed dispute resolution is not mentioned in his statutory declaration and there is no surrounding correspondence of any type.
59. The letter from Legal Aid Queensland, dated 8 July 2022, confirms that the Applicant was granted aid to instruct a solicitor to attend a scheduled family dispute resolution conference to be held on 15 July 2022. There is an undated message from Sun & Co Lawyers, which states that a family dispute resolution conference was held on 15 July 2022 and that no agreement was reached between the Applicant and the mother. It also states that they have funding to represent him in the Federal Circuit and Family Court and seeks instructions to commence proceedings. There is no accompanying certificate about the outcome of the family dispute resolution conference and it appears that no instructions were given to proceed with the Court application because there is no other correspondence with Sun & Co Lawyers. This process is not mentioned in the Applicant’s 2023 statutory declaration. It is not at all clear from the correspondence that has been produced who it was that sought resolution of parenting arrangements. The Legal Aid letter indicates that the Applicant had been invited to attend the dispute resolution conference, which may indicate that it had been initiated by the mother. It is also possible that the ‘invitation’ is merely formal and is not intended to indicate who initiated the process.
60. Finally, there are two pieces of correspondence from Tang Lawyers Australia. The first, dated 2 March 2023, is addressed “to whom it may concern”, presumably for the attention of the Tribunal, and confirms that the firm has been engaged by Legal Aid Queensland to represent the Applicant to file an application for parenting orders. This was produced after the Tribunal expressed dissatisfaction at the hearing on 14 February 2023 that there was no evidence of the Applicant’s claim to be seeking parenting orders. The second letter is dated 11 September 2023 and is addressed to the Applicant’s representative in the Tribunal application. The letter states that the Applicant had been assigned to the firm by Legal Aid Queensland and that the firm had been in the process of preparing the application since being contacted by Legal Aid. It continues:
… the preparation process was initially on hold because we received instructions from our client that he was in the process of going through AAT in relation to his visa matter and he did not have time and the mind set to go through court process in the family law court. It is our understanding that our client thought at that time it is better to finish his visa matter first before we started on his behalf the application process at the family court of Australia. Otherwise, our client thought at that time he would have suffered too much pressure if the matters were to be pursued at the same time.
In or about March 2023, we were approached by your office to enquire about the application at the family court. We have notified you on the phone that we were in the process of preparing the materials. However, the application process was put on hold because of my family commitments. We shall return to prepare for our client’s application in a month time.
The Applicant has produced no correspondence of any nature between himself and Tang Lawyers. His own evidence was that it was Tang Lawyers who advised him to delay the application.
61. The material produced by the Applicant to the Tribunal provides, at best, only equivocal support for his claims and leave many unexplained absences in the evidence. The Tribunal stressed at each of the hearings that it was, in many ways, central to his application to establish that the best interests of the child would be adversely affected by the cancellation and that, because he had only very limited contact with the child since she was two years old, the documentary evidence of his attempts to maintain contact and provide support would be very important.
62. The documentary evidence presented to the Tribunal as the relationship with the child exhibits the following deficiencies:
•The (uncaptioned) photographs he has submitted comprise four of him with the child as a newborn and two with child aged apparently about 18 months taken on the one occasion. It cannot be accepted with confidence, and in the lack of any other material, that he visited her weekly through 2019 to 2020 as claimed. It is also not possible to accept with confidence that he maintained twice weekly video calls with the child because he claimed to be unable to produce the relevant telephone records and did not produce any other supporting material that might be expected, for example, text messages with the mother or grandmother to arrange these calls or screenshots taken during video calls.
•The amount of money paid by the Applicant for child support is, prima facie, derisory. He declined the Tribunal’s invitations to permit an assessment of the veracity of the claimed payments, the adequacy of his contributions, or his claimed incapacity to contribute over the past two years.
•He made no response to the child’s mother when sent him photographs and an invitation to mediate for access to the child. His explanation, that she has a history of offering then withdrawing access to the child, and that he was advised by his psychologist not to respond, is not supported by evidence that would, on the basis of the other material submitted, be expected to exist. The report from his psychologist, Ms Burrow, is only that the Applicant had reported very limited contact with his daughter due to an estranged relationship with the mother.
63. While the Tribunal has had regard to the Applicant’s oral and written testimony about his relationship with his daughter, the weight it can give it is undermined by the shortage or non-submission of material that could reasonably be expected to be submitted if it supported his claims. The Tribunal’s assessment is that there has been very little, if any, contact between the Applicant and his daughter since about 2020, and that there had been very limited contact before then. Were he to be removed from Australia, there is no reason to believe that he would not be able to maintain his contact with the child at current levels, or to increase it materially circumstances permit. Accordingly, in view of all the evidence, the Tribunal does not consider that the cancellation of the visa would have any adverse effect on the best interests of the child. Given that the family unit is not intact, and that means for continued contact at or above current levels are feasible, the Tribunal does not consider that cancellation of the visa could amount to an interference with the integrity of the family unit. The Tribunal further notes that cancellation of the visa is not itself a decision to remove a person from Australia and is not, therefore, of itself a decision to separate the Applicant from the child.
64. The Tribunal therefore can give this factor no weight against cancellation of the visa.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations
First, it is well established that it was the responsibility of the applicant to put evidence before the Tribunal which went to what would have been in the best interests of child A. Counsel for the first respondent relied upon the judgment of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ where it was held:
38. As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.
At [48] of its reasons the Tribunal clearly noted that under Article 3 of the Convention on the Rights of the Child, the best interests of a child was a primary consideration for the purpose of its administrative decision making.
It is further clear that during the whole of its reasons from [48] – [64], the Tribunal analysed the best interests of child A in the context of her relationship with the applicant, and the lack of evidence before the Tribunal as to the nature of such relationship. The Tribunal, at [56] of its reasons, pointed to the paucity of evidence concerning the applicant’s provision of financial and other support to A, and at [57] of its reasons, the Tribunal pointed to the lack of evidence concerning what parental role the applicant proposed playing in A’s future life. It was open for the Tribunal to find, as it did at [63] of its reasons, that there had been very little, if any, contact between the applicant and A since 2020, and that there had been very limited contact before then.
The Court accepts the submission made on behalf of the Minister that there was nothing in the reasons which evidenced the Tribunal as treating another consideration, or any other number of considerations, as being treated as primary considerations, or considerations of greater significance than the consideration that the best interests of a child was a primary consideration.
The Court further finds that the applicant’s submissions seek to impose too stringent a fetter upon the Tribunal’s decision-making obligations. The mere existence of a child of a person whose visa has been cancelled can never be determinative on an application to quash a cancellation decision. [1]
[1] Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 per Dowsett J at [16] and
As to the submission that the Tribunal gave no weight to A’s best interests at [64] of its reasons, such finding was made in circumstances where the Tribunal had extensively considered how any removal of the applicant from Australia would affect the interests of child A. The finding should not be looked at in isolation or with an eye too keenly attuned to error.[2] The Tribunal understood that as a consequence of the decision of the delegate being affirmed by it, such decision would necessarily prevent ongoing close physical contact between child A and the applicant. The Tribunal was entitled to weigh up all of the factors recorded by it in its reasons, and then find that the applicant had failed to establish that the quashing of the Tribunal’s decision was in the best interests of child A. It could not be said that in doing so the Tribunal had acted in a way contrary to the obligations set out in the convention.
[2] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
593 at [46] – [47] per French, Sackville and Healy JJ
Further, the Court finds that the application for review effectively seeks an impermissible merits review.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 3 September 2025
[22]-[23].
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