Department of Immigration & Ethnic Affairs v Yad Ram

[1996] FCA 581

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
QUEENSLAND DISTRICT REGISTRY      )     No QG5 of 1996
  )
GENERAL DIVISION                  )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS

Applicant

AND:YAD RAM

Respondent

CORAM:    HILL J
PLACE:    BRISBANE
DATED:    20 JUNE 1996

REASONS FOR JUDGMENT

The Department of Immigration and Ethnic Affairs appeals to the Court from a decision of the Administrative Appeals Tribunal constituted by a Deputy President, directing that a spouse visa be issued to permit the return to Australia of Ms Sunil Lata ("Ms Lata").  Ms Lata is the spouse of Mr Yad Ram ("Mr Ram"), the respondent to the present appeal.  The appeal is by way of an application in the original jurisdiction of the Court and it is an appeal on and thus limited to a question of law.

It is conceded on behalf of Mr Ram that the Deputy President did not have the power to direct the issue of a visa, because the only matter before him for review was the decision of the Minister to refuse to grant to Ms Lata a visa on the basis that s 501(2) of the Migration Act 1958 (Cth)
("the Act") applied to her.  If that decision is overruled, Ms Lata would still not be entitled to a visa, unless it was determined that she satisfied other criteria, including those specified in paras 4002, 4003, 4004, 4007 and 4009 in Schedule 4 of the Migration Regulations.

In any view of the matter, the Tribunal was thus required to remit the application to the Minister to determine whether these criteria were, in fact, satisfied, rather than to do as it did, namely, to direct the issue of a visa.

THE RELEVANT STATUTORY PROVISIONS
         Section 501 of the Act provides relevantly:

"501(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a)subsection (2) applies to the person;  ... 

(2) This subsection applies to a person if the Minister:

(a) having regard to:

(i) the person's past criminal conduct; or

(ii) the person's general conduct;

is satisfied that the person is not of good character ... ".

It was not suggested in the Tribunal that Ms Lata had been guilty of past criminal conduct.  It will be observed
that s 501 throws up two distinct issues for consideration.  The first is the question whether the Minister (or in a review to the Tribunal, the Tribunal) is satisfied that Ms Lata, having regard to her general conduct, was not of good character.  The second issue, which only requires to be answered if the first issue is answered unfavourably to the applicant, is whether in the circumstances the Minister should refuse to grant the visa, there being no discretion to go ahead and issue a visa, notwithstanding an adverse determination as to character.

I turn now to summarise the facts as found by the Tribunal.  In so doing, I would emphasise that I have not sought to set out these facts in any detail, for there is little relevance in them to the issue before the Tribunal.  I have refrained from repeating some of the colourful language used by the Tribunal, which had rather the effect of trivialising the issues.

Mr Ram and Ms Lata had lived together in Fiji in 1983 and had a daughter in 1984.  They appear to have reached an agreement with two Fijians of Indian ethnic origin who have become Australian citizens by nationalisation.  For ease of reference, these two Indians are referred to as "William" and "Suraj".  Pursuant to this arrangement, the following was apparently to occur.  The marriage of William and Suraj was to
be dissolved and while Mr Ram came to Australia to marry Suraj, Ms Lata would come to Australia to marry William.

Mr Ram, in fact, did marry Suraj and had a child with her.  That child is of no relevance to the present proceedings.  Ms Lata never had any intention of marrying William; in fact, from the time she arrived in Australia, she and Mr Ram lived together as husband and wife.  On 9 February 1991, Ms Lata gave birth to a daughter Suzanne, of whom Mr Ram was the father.  On 21 August 1992, Mr Ram became an Australian citizen by naturalisation.  On 22 November 1993, the marriage between Ram and Suraj was dissolved.  On 5 January 1994, Ram married Ms Lata in Fiji.  Subsequently, on 30 November 1994, Ms Lata lodged an application for a visa which was refused under s 501 of the Act.  It is this refusal which Mr Ram sought to review in the Tribunal.

THE TRIBUNAL'S REASONS
         Setting out in a little more detail the above facts, the Tribunal in a critical paragraph said:

"(8)Ms Lata gave evidence by phone hook-up.  She impressed me as a witness of truth, doing her best to tell the events as they occurred.  She is a person of humble origin with a low level of education, albeit she has a good command of English and will experience no problems of communication were she to be granted permanent residence in this country.  She frankly admitted that she was aware that her coming to Australia for the stated purpose of marrying William was fraudulent
and was intended to deceive our immigration authorities.  In her evidence, she stated:  `Mr Prasad had told me to get married to [him], and then I would be able to come to Australia ... If that is not done, I will kill myself.'  She added that she was aware that Ram had married Sarojani before she came to Australia.  In other words, she is particeps criminis and, were it not for Suzanne, I would have no difficulty in affirming the delegate's decision.  However, in mitigation of her `bad character', I am mindful of the cultural component to this fraud, in the sense that Lata comes from a vastly different background, a background where `feminisim' has not yet begun to emerge, and the Women's `Movement' is between church, kitchen and childbirth.  Above all, they do what their husbands tell them.  In other words, I am satisfied that Lata was more sinned against than sinning.  It must also be said in her favour that several of her erstwhile Australian neighbours testified as to her good character, her pleasant personality and her willingness to help out.  Thus one lady deposed that when she came out of hospital after cancer treatment, Lata would come over and help, adding that she was an excellent mother and devoted to her children.  Another neighbour, whose wife suffers from heart disease, testified that Lata would come to `cook and clean for her.  She would do anything.  Michael [Ram] was the same.'  On this evidence, I find that Lata's `general conduct' is exemplary."

The Tribunal under the heading "The Law", discussed the decision of the High Court in Minister for Immigration Ethnic Affairs v Teoh (1995) 183 CLR 273 noting that, subsequent to that decision of 10 May 1995, a joint statement dated 10 May 1995 had been issued by the Minister for External Affairs and the Attorney-General. That joint statement is in the following relevant terms:

"This statement is to clarify the government's position following the High Court's recent decision in the Teoh case ...

... the government is taking action to restore the position to what it was understood to be prior to the Teoh case.

This action is of the kind foreshadowed by the High Court itself.  In its judgment, the court acknowledged that the expectation in question can be displaced by `statutory or executive indications to the contrary': there can be no legitimate expectation if the actions of the Parliament or the Executive are not consistent with that expectation.  So far as the Executive is concerned, the court made it clear that it was open for Government to make a statement about the effect that the obligations undertaken in international law by reason of treaty ratification are intended to have in the domestic law of Australia.

We now make such a clear and express statement.  We state, on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law.  It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision-makers.  Any expectation that may arise does not provide a ground for review of a decision.  This is so both for existing treaties and for future treaties that Australia may join .... The government intends to legislate to reinforce this statement...".

Although a bill was introduced subsequent to that statement, it was not enacted as Parliament was prorogued.  The Tribunal considered that its decision-making was unaffected by the Ministerial Statement, but then examined what it said was the common law position, and concluded that the Tribunal was bound to give Suzanne's future "a primary consideration", both because of the common law position and the view that Teoh was unaffected by the Ministerial Statement.

The Tribunal then concluded its reasons by saying:

"32. Reviewing all of the above, I am satisfied that, whilst not ignoring the fact that Lata was an active participant in a blatant immigration fraud, nevertheless a mature and civilised country will recognise redemption, the more so where there are mitigating circumstances, as in this case.  It follows that the term 'bad character' within the meaning of the Act, when applied to Lata, will not cause litmus paper to change violently from red to blue.  I have therefore concluded that the decision under review should be set aside."

The primary submission for the Department is that the Tribunal misconceived the issue before it.  So it is submitted that the Tribunal considered the question of Suzanne's future in the context of the first issue it had to decide, namely the issue of whether it was satisfied that Ms Lata was not a person of good character.  To the consideration of the question of Ms Lata's character, Suzanne's future was irrelevant, and in so taking it into account it was submitted that the Tribunal had erred in law.

The question of Suzanne's future only arose if the Tribunal formed the view that Ms Lata was not of good character.  Then, but only then, could it arise for decision as part of the general discretion conferred upon the Minister and in a review upon the Tribunal.

As an alternative it was submitted that the Tribunal erred both in disregarding the joint Ministerial Statement and by determining that the common law required that Suzanne's future was a primary consideration in the exercise of discretion.  It should be said that, it was conceded by the Department that Suzanne's future was a relevant matter to be taken into account in the exercise of the discretion, although it was submitted that it was neither conclusive nor a matter of primary consideration.

It must be said that it is unclear from the Tribunal's reasons whether it decided only one question, namely its view of Ms Lata's character to which question Suzanne's future was irrelevant, or two separate questions, the second being, as it were, alternative to the first and to be taken into account only if the Tribunal had erred in its view of Ms Lata's character.  To the second and alternative questions I have said Suzanne's future was undoubtedly relevant, as the Department's counsel properly conceded.  It is hard to read paras 8 and 32 of the reasons as if the issues of Suzanne's future are dependent upon an adverse conclusion
as to her character.  It was submitted by counsel for Ms Lata that the reference in para 8 of the reasons to Suzanne was a "throw-away line" and should be disregarded.  Presumably the first sentence of para 32 and the words, "It follows ..." in the second sentence of that paragraph, are likewise to be assumed as throw-away words or lines.

I am acutely conscious of the need for the Court to exercise restraint in hearing appeals from the Administrative Appeals Tribunal: cf Blackwood Hodge (Australia) Pty Limited v Collector of Customs (NSW) (1980) 47 FLR 131 at 145. This is a matter recently emphasised by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (unreported, 27 May 1996), where their Honours refer with approval to the decision of a Full Court of this Court in Collector of Customs v Pozzollanic Enterprises Pty Ltd (1993) 43 FCR 280, where it is said, inter alia, (at 287):

"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

I am conscious too of the need emphasised in Wu Shan Liang to recognise that (at 12):

"... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned
from the way in which the reasons are expressed."

This having been said, the reasons must nevertheless be read (albeit with restraint) and if an error of law is identified the Court is under an obligation to intervene to correct the error.

May I say that I have great respect for the learned Deputy President.  He is a man of considerable experience and given to precision of language.  For that reason, I have difficulty in accepting that the references to which mention has been made were but throw-away lines.  Rather, I think on balance the Tribunal did take into account Suzanne's future in reaching a view as to her mother's character.  In so doing, the Tribunal took into account a wholly irrelevant matter and in so doing, its decision-making miscarried.

If it be said that I have taken a too pedantic or unrestrained view in construing the reasons for decision of the Tribunal, and that what the Tribunal did was to consider alternatively (on the unstated hypothesis that Ms Lata was not of good character), whether as a matter of discretion the visa should have been refused, I think, in any event, its discretion miscarried in the exercise of its residual discretion.

It is common ground between the parties that at the very least Suzanne's future was a matter that it was relevant for the Tribunal to consider.  But what the Tribunal did was to conclude that it was required, both by the decision of the High Court in Teoh and by the common law to make it a primary consideration.  In my view, neither Teoh nor the common law as at present enunciated support this proposition.

In Teoh, the High Court considered the relevance of the United Nations Convention on the Rights of the Child to Administrative Decision Making.  Article 3(1) of that Convention provided:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

The leading judgment in the case is that of the Chief Justice and Deane J.  Their Honours accepted that a treaty not incorporated into Australian municipal law by statute could not operate as a direct source of individual rights, although the existence of a treaty could influence the interpretation of other municipal law in the event of ambiguity and play a role in the development of the common law.  However, their Honours held that the existence of a treaty gave rise to a legitimate expectation that administrative decision-makers
would act in accordance with the it.  Their Honours said (at 291-2):

"Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act ... particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children.  Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.  That positive statement is an adequate foundation for legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the Convention ... and treat the best interests of the children as `a primary consideration'.  It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it ... The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way.  That is the difference between a legitimate expectation and a binding rule of law.  To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law.  It incorporates the provisions of the unincorporated convention into our municipal law by the back door.  And that, as we have already said, is what Lee and Carr JJ seem to have done because the obligation to initiate inquiries and reports appears to stem from a view that the minister's delegate was bound to apply Art 3.1."

But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the person affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course ..." [Emphasis added]

It is to be noted that the Court in this passage makes it clear that a decision-maker is not bound to treat the interests of a child as a primary matter.  Rather, all the Court is saying is that before a decision-maker decides to embark upon a contrary course, a person affected must be given notice and an opportunity to be heard.  Thus it would be an error of law for the Tribunal to consider itself bound as a result of Teoh to give Suzanne's future a primary consideration. The judgment of Toohey J, the remaining member of the majority, is to the same effect (at 302).

Gaudron J took a different view.  Her Honour, while agreeing with the Chief Justice and Deane J as to status of the Convention, went further.  Her Honour said (at 304):

"In my view, it is arguable that citizenship carries with it a 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 all discretion decisions by governments and government agencies which directly affect that child's individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case.  And it may be that, if there is a right of that kind, a decision-maker is required, at least in some circumstances,
to initiate appropriate inquiries ... However, it was not argued that there is any such right and, thus, the case falls to be decided by reference to the requirements of natural justice.

Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare."

With respect, her Honour's comments were, at the most, dicta, no matter how appealing they may be.  To the extent that her Honour's view suggested that there may be some common law right, that view is inconsistent with the view of the majority of the Court.  If at common law a decision-maker was bound to take into account as a primary consideration the welfare of the child, there could be no room for the question of natural justice and the application of the treaty to arise and a decision-maker would be bound to take the matter into account.  However, the judgment of the majority makes it clear that it is not; the decision-maker is not so bound.

Thus I feel constrained as a single judge to follow the views expressed by the majority of the High Court rather than the dicta of Gaudron J, whose views were not adopted by the majority.

Although it is quite unnecessary to do is, I would say something as to the joint ministerial statement of Senator Evans and the Attorney-General, Mr Lavarch.  When, in Teoh, Mason CJ and Deane J refer to "executive indications to the contrary", it may well be that their Honours intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force.

When initially referring to executive comments, their Honours do so in the context of the act of ratification, an act that speaks both to the other parties to the Convention and to the people of Australia as well as to the world.  I doubt their Honours contemplated a case where at the time of ratification, Australia had expressed to the world and to its people its intention to be bound by a treaty protecting the rights of children, but subsequently, one or more Ministers made statements suggesting that they at least had decided otherwise.

However, it must be said, it is unquestionably the case that the interests of Suzanne here will be a relevant matter for the decision-maker to take into account.  Although not bound to treat it as a primary matter if Teoh remains the law, the decision-maker is entitled to do so.  Although, if the decision-maker wishes to depart from that course, he or she could do so upon giving notice to the person affected.  It
is, however, doubtful whether Teoh or the ministerial statement will require consideration by the Tribunal when it reviews the matter again upon remission of the matter to it.

I direct that the matter be remitted to a Tribunal differently constituted for a review of the decision referred to in it in accordance with the law with or without the hearing of fresh evidence as the Tribunal itself may determine.  The respondent must pay the applicant's costs of the application.

I certify that this and the
preceding fifteen (15) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:  12 July 1996

Counsel and Solicitors      R Atkinson and R Melville

for Applicant:              instructed by the Australian Government Solicitor

Counsel and Solicitors      L Boccabella instructed by

for Respondent:             Stephens & Tozer

Date of Hearing:     19 June 1996

Date Judgment Delivered:         20 June 1996