EEF16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2025] FedCFamC2G 645
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEF16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2025] FedCFamC2G 645
File number(s): ADG 501 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 May 2025 Catchwords: MIGRATION – Class XA visa application – whether the Administrative Appeals Tribunal failed to conduct the review required by the Migration Act1958 (Cth) – whether the Tribunal breached the natural justice requirements – whether the Tribunal’s decision was unreasonable and irrational and failed to take relevant considerations into account – two of the proposed grounds of judicial review have no merit – one ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal Legislation: Migration Act 1958 (Cth) ss 101, 102, 103, 104, 105, 107, 109, 140, 375A, 438
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
CFE16 v Minister for Immigration and Border Protection [2020] FCCA 1083
DXQ16 v Minister for Immigration and Multicultural Affairs [2020] FCA 1184
DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184
EEF16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1020
G v Minister for Immigration and Border Protection [2018] FCA 1229
Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235
Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 17 April 2025 Place: Parramatta Counsel for the Applicant: Mr Kikkert (Acting on a pro bono basis) Solicitor for the Applicant: Ms Cox (Acting on a pro bono basis) Counsel for the First Respondent: Mr Forsaith Solicitor for the First Respondent: Mr Plitsch (Australian Government Solicitor) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 501 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEF16
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The application is upheld.
2.A writ of certiorari shall issue, quashing the decision of the (then) Administrative Appeals Tribunal made on 7 December 2018.
3.The matter is remitted to the Administrative Appeals Tribunal for further consideration.
4.A writ of mandamus shall issue, directed to the Administrative Appeals Tribunal, requiring it to determine the Applicant’s application according to law.
5.The Applicant is to pay the First Respondents costs fixed in the sum of $4,189.38.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This matter has a long and complicated history. The current application before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) (as it was then), dated 7 December 2018 affirming a decision of a delegate of the Minister to cancel the applicant’s (Class XA) (Subclass 866) visa (“the visa”) under s 109 of the Migration Act 1958 (Cth) (“the Act”).
On 11 October 2024, the Court delivered judgment in EEF16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1020 (“EEF16”). That judgment addressed whether certain information provided to the Tribunal pursuant to s 438 of the Act, some of which was provided to the applicant, should or should not be made available to the applicant. The Commonwealth claimed public interest immunity. The Court made orders refusing the applicant’s access to the redacted content contained in the s 438 notifications and upheld the first respondent’s claim for public interest immunity.
For the reasons set out below, the substantive judicial review application is allowed.
BACKGROUND
On 9 January 2010, the applicant arrived at Sydney airport on a Visitor (Class TV) (Subclass 651) visa as the holder of a German passport, with the name of EH (full name not reproduced to maintain the applicant’s anonymity), born in Iraq in July 1978.
On 16 February 2010, the applicant approached a police station in Adelaide, claiming to have arrived in Australia as a stowaway on a ship on 13 February 2010.
On 22 February 2010, the applicant applied for the visa on the basis that:
(a)his identity in fact was AL, born in Iran in March 1973;
(b) his only country of former habitual residence was Iran;
(c) he was not a dual citizen;
(d) he departed Iran on 14 January 2010 without a travel document as a stowaway on a cargo ship and arrived in South Australia by sea on 13 February 2010;
(e) he fled Iran because he feared persecution as a result of his involvement in the Iranian Green Movement from mid-2009; and
(f) he lived in a park in Adelaide in the three days prior to presenting himself to police.
On 25 March 2010, the applicant participated in an interview with a Departmental Officer in connection with visa application. At the time, the applicant made claims consistent with those in his application and as stated above.
Around the same time, a Forensic Document Examiner of the Document Examination Branch of the then Department of Immigration and Border Protection (“the Department”) examined two documents issued by Iranian authorities that the applicant relied on as evidence of his identity. The examiner concluded that the documents were genuine in a file note dated 25 March 2010.
On 14 May 2010, a delegate of the Minister granted the applicant the visa.
In June 2014, the Department commenced an investigation into the applicant’s identity on account of there being no record of his initial entry into Australia. An examination of the Department’s Overstayers Database suggested EH as a potential match, because there was no record of EH leaving Australia after his Visitor visa expired.
On 19 November 2014, Departmental officers interviewed the applicant in relation to his identity, putting it to him, amongst other things, that:
(a) he was EH, born July 1978 in Iraq, was a naturalised German citizen who had previously lived in Münster, Germany;
(b) had entered Australia on 9 July 2010 on a Visitor Visa using his German passport;
(c)German authorities had confirmed the German passport was a genuine document and had not been reported lost or stolen; and
(d) there were photographs of him on a Facebook profile under the name of AL, which included an image the Department alleged was taken in Münster, Germany.
The applicant maintained that he had arrived in Australia by ship, denied the abovementioned allegations, and had never been to Germany. The applicant accepted that there were photographs of him on his Facebook profile, but denied that he was its creator and that the photograph allegedly taken in Germany was of him.
A document titled “National Identity Verification and Advice VIC Identity Confirmation Report”, dated 23 December 2014, was prepared by a Departmental officer in connection with an investigation of the applicant’s identity. This report concluded, with reference to a chronology of events described above, the file note, and various other matters, that the applicant was in fact AL, but that he also held German citizenship in the name of EH.
On 20 April 2016, the Department sent the applicant a Notice of Intention to Consider Cancellation (“NOICC”) pursuant to s 109 of the Act. That NOICC set out the abovementioned matters and particularised the applicant’s alleged incorrect answers and failure to answer questions in the visa application.
In the applicant’s response, the applicant provided a statutory declaration which stated, inter alia, that:
(a)he was not a German citizen also known as EH, and that he had never been to Germany;
(b)contrary to what he had previously told the Department, he did in fact enter Australia on 9 January 2010 on the visitor Visa using the German passport in the name of EH;
(c) stated that the German passport was not his but was purchased by him in Jakarta from a people smuggler;
(d) accepted that the photograph allegedly taken in Germany was of him, but stated in fact it was taken in Armenia; and
(e) claimed that his brother had created the Facebook profile in the name of AL without his knowledge.
On 5 August 2016, a delegate of the Minister decided to cancel the applicant’s Protection visa under s 109(1) of the Act. The decision was based on a finding that the applicant held another identity, EH.
The applicant applied to the Tribunal on 11 August 2016, seeking merits review of the delegate’s decision.
Three documents were sent to the Tribunal, in which it was certified, pursuant to s 375A of the Act, that disclosing the contents of the documents would be contrary to the public interest.
On 21 December 2016, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Protection Visa. The applicant sought judicial review in the then Federal Circuit Court.
On 10 November 2017, consent orders were made quashing the Tribunal's decision on the basis that the Tribunal had failed to disclose the existence of the s 375A notifications to the applicant. The matter was remitted to the Tribunal for further consideration. Some of the information contained within the s 375A notice was subsequently provided to the applicant.
The matter was listed before the Court for final hearing on 3 February 2025. As the applicant sought to rely upon amended grounds of judicial review, adjourning the final hearing to 17 April 2025 was necessary. The issue of costs thrown away by the respondent was reserved.
This judgment addresses the second Tribunal decision made on 7 December 2018, affirming the decision to cancel the applicant’s protection visa.
SECOND TRIBUNAL DECISION
The Tribunal dealt with the s 438 certificates as a preliminary issue. This is addressed in EEF16 from [20]-[26].
The Tribunal instructed itself as to the provisions under s 109(1) of the Act, which govern the Minister's power to cancel a visa if the visa holder fails to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. The exercise of the power under s 109 of the Act is conditional upon the Minister issuing a valid notice to the visa holder under s 107 of the Act.
The Tribunal identified (at [22]) that the issue before it was whether there had been non-compliance in the manner alleged in the NOICC. At [23], the Tribunal summarised the particulars of that non-compliance.
The applicant was presented with the following information by the Department in an interview held in 2015:
•He entered Australia on 9 January 2010 on an international flight, holding a visitor visa traveling on a German passport number C7CT5PGL1 (issued on 22 June 2009, expiry 21 June 2019) in the name of EH.
•His name is *** born on *** 1978 born in Iraq.
•He was a citizen of Germany.
•He lived in Munster, North Rhine-Westphalia, Germany.
•Immigration officers at Sydney Airport conducted a face to passport check and were satisfied that he was in Australia to visit a friend.
•German authorities confirmed that he (EH) is a citizen of Germany and that the passport is a genuinely issued document that has not been reported lost or stolen.
The applicant denied the above information. At the hearing, the applicant confirmed that he had given the incorrect information in the visa application, namely that he did not enter Australia by ship, but instead arrived by plane holding a German passport under another alias. However, the applicant claimed that he did not go by this alias, was not a citizen of, and had never been to Germany.
The Tribunal held that the applicant entered Australia on a German passport that belonged to him and that he was known by this alias. The applicant answered incorrectly in the protection visa application about his alias, citizenship and travel to Australia. Therefore, the discretionary power to cancel the applicant's visa arose.
The Tribunal considered whether the visa should be cancelled pursuant to s 109(1) of the Act. This determination included considering the applicant's response to the s 107 notice and having regard to prescribed circumstances in s 109(1)(b) and (c) of the Act. These circumstances are set out at reg 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) and are not representative of all the circumstances that may be considered in any given case. At reg 2.41 of the Regulations, the circumstances are as follows:
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;
(i)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.
In turn, the Tribunal considered these circumstances.
Regarding circumstance (a), the Tribunal considered the applicant's evidence and made findings at [36]-[60]. The Tribunal found that the applicant's evidence that he had never been to Germany lacked credibility.
As to the Facebook page, which was referred to in the delegate's decision, the Tribunal did not accept that the applicant had no prior knowledge of the page and that it was created by his brother in Iran to meet women. The email address associated with the Facebook page was linked to the visa used by the applicant to enter Australia. Further, the applicant admitted that he was depicted in the photograph, which appeared on the Facebook page, and confirmed by the Tribunal to have been located in Germany. The applicant maintained he had never been to Germany [53].
The Tribunal also found that the German passport issued in Germany used by the applicant to enter Australia was a genuine document.
The applicant's agent submitted that, firstly, the applicant understandably concealed that he arrived in Australia on a false passport as he was a person seeking asylum. The Tribunal found the correct information was that he entered Australia on a genuine passport, travelling by plane, with a valid visa. Second, the agent submitted country information, which indicated that Germany had the power to revoke a person's citizenship if it was obtained by fraud or incorrect information and would do so with the applicant. The Tribunal found the applicant could only reasonably be returned to Iran.
The Tribunal considered the applicant's evidence regarding circumstance (c) from [61]—[66] of the decision and ultimately found that the applicant's concealment of his alias and the time he did spend in Germany created doubts about his political activity in the " Green Movement" in Iran and that he fled the country for that reason. It was most likely that the protection visa would not have been granted if the applicant had provided the correct information.
As to (d), the Tribunal found that the non-compliance occurred because the applicant deliberately concealed his mode of entry to Australia, his alias, past countries of residence, and German citizenship.
The Tribunal had regard to circumstance (e), the applicant's present circumstances: his marriage to an Australian citizen and his daughter, born in 2010. The applicant received Centrelink benefits and had worked for six months as a painter.
As to circumstance (f), the Tribunal found that the applicant provided the information requested after admitting to having provided incorrect information on the protection visa; however, the applicant was still attempting to conceal his German citizenship and residency. These factors were given significant weight.
As to the time that has elapsed since the non-compliance, under circumstance (h), the Tribunal considered that the applicant had been in Australia for eight years at the time of the decision, had settled into the community, sponsored his wife and had a child. The applicant had also undertaken study and completed a certification.
The applicant conceded that he had not made significant contributions to the community since arriving in Australia.
The Tribunal also considered the matters to be taken into account, in line with the Procedures Advice Manual 3 guidelines.
This was, firstly, whether there are persons in Australia whose visas would or may be cancelled under s 140 of the Act. The Tribunal found that upon cancellation of the applicant's protection visa, grounds would exist to cancel the applicant's wife's visa; however, the applicant's wife was not a party to the Federal Circuit Court proceedings and had separate judicial review proceedings.
Second, the Tribunal considered if there are any children whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellations at [80]-[92] and determined the following:
·The applicant has a young son whose interests would be affected; however, if the Tribunal were to cancel the applicant's visa, it would not affect the child's Australian citizenship status.
·The Tribunal had regard to Article 9 of the Convention on the Rights of the Child (CROC), which directs that parties ensure that a child is not separated from his or her parents against their will unless it is determined that the separation is necessary for the child's best interest.
·The Tribunal considered the circumstances and found that the applicant leaving Australia as a result of the visa cancellation would make it difficult for him to have direct physical contact with his son on a regular basis. At [84], the Tribunal considered that it was in the child's best interests for him to remain with both his parents.
·The Tribunal had regard to observations made by the Committee on the Rights of Children about Iran's compliance with the CROC and submissions that it would not be in the best interests of the applicant's child to relocate to Iran.
·At [90], the Tribunal held that the applicant's child can accompany his parents to Iran or Germany if the applicant can apply for a visa for his wife and son to reside there.
·The applicant and his wife's Christian religious beliefs were raised as an additional concern that if their child were to be educated in Iran, he would be taught the Islamic faith. At the hearing, when questioned about his Christian beliefs, the Tribunal found the applicant's evidence vague, inconsistent, and lacking in credibility. The Tribunal also found the wife's evidence about her religious conviction limited and lacking in credibility.
Regarding Australia's non-refoulement obligations, the Tribunal concluded that the applicant had German citizenship and could return to Germany should he choose not to return to Iran ([97]).
The Tribunal did not find that there would be any legal consequences to a cancellation decision, and the applicant's removal from Australia would not be in breach of Australia's international obligations.
After considering the applicant's evidence and weighing their findings at [102]-[104], the Tribunal concluded that the applicant's protection visa should be cancelled [105].
GROUNDS OF JUDICIAL REVIEW
By a Further Amended Application filed on 10 February 2025, the applicant relies on three grounds of judicial review. They are as follows (less particulars):
1. That the Tribunal:
1.1.failed to give primary consideration to how the best interests of the applicant’s child would be affected by the cancellation of his protection visa; and/or
1.2. failed to give the applicant notice that it did not intend to treat the best interests of his child as a primary consideration; and/or
1.3. applied the wrong test,
and thereby did not conduct the review required by the Migration Act which was a jurisdictional error.
2. That the Tribunal breached the natural justice requirements afforded by the Act by failing to have regard to the submissions provided by the applicant in respect of the interests of the applicant’s child that would be affected by the cancellation of his father’s visa and thereby did not conduct the review required by the Migration Act which was a jurisdictional error;
3. That the Tribunal’s decision with respect to the child’s best interests was unreasonable and irrational and failed to take relevant considerations into account. It thereby did not conduct the review required by the Migration Act which was a jurisdictional error.
THE APPLICANT’S SUBMISSIONS
Ground 1 of the applicant’s submissions (AS) is pleaded in the alternative.
Ground 1.1 argues that the Tribunal failed to give primary consideration to how the best interests of the applicant’s child would be affected by the cancellation. The Tribunal had an obligation to treat the best interests of the applicant’s child as a primary consideration. It found that the applicant has a son whose interest could be affected by the cancellation, and it would be in the best interests of the child to remain with both of his parents, however the circumstances of the case outweighed the applicant’s desire to remain in Australia and the disruption caused to his family.
The applicant relies on the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (“Teoh”). The first respondent contends that Teoh is no longer good law and that there are no obligations derived from the Teoh decision. The applicant submits that whilst judges have preferred simpler tests to Teoh based on procedural fairness (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 [30], Kiefel CJ, Bell and Keane JJ), these decisions did not overrule Teoh. Further, there is a plethora of authority to substantiate the argument that Teoh remains good law and binds this Court.
The applicant maintains the argument that it is the Tribunal’s requirement to treat the best interests of the applicant’s child as a primary consideration when deciding whether or not to affirm the cancellation of his visa.
It is not fatal to the applicant’s position that Regulation 2.41 of Migration Regulations 1994 (Cth) does not incorporate an explicit direction for the decision-maker to treat the best interests of any affected child as a primary consideration when making a s 109 decision, unlike decisions made under s 501 of the Act. It should logically follow that once an obligation exists, the reasoning employed in a s 501 decision is applied to decisions made under s 109 of the Act. Justice Katzman in Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897 stated that the principles set out by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (“ Wan”)in relation to a visa refusal decision apply to decisions that impact visa applicants and holders facing the prospect of visa cancellation. There is no indication that Katzman J intended to refer only to s 501 decisions.
The Tribunal did not expressly or implicitly treat the best interests of the child as a primary consideration. In only finding two identified interests of the child as constituting the “best interests”, the Tribunal did not fulfil its obligation. The first respondent’s submission to that effect should be rejected. The applicant insists that the Tribunal did not describe the child’s best interests anywhere in its reasons as a primary consideration in its decision, and the Tribunal did not appreciate the significance of giving those interests primary consideration. Further, the Tribunal failed to articulate the weight given to the child’s interests.
The use of the term “best interests of the child” by the Tribunal and its brief discussion of what it decided those interests were, was insufficient to overcome the flaws in its process.
In the alternative, the applicant pleads in Ground 1.2 that if the Court decides that the Tribunal was not subject to an obligation to treat the best interests of the child as a primary consideration, then the Tribunal fell into jurisdictional error by failing to give the applicant notice that it did not intend to treat the best interests of his child as a primary consideration.
Case law characterises the decision-maker’s obligation to treat the best interests of the child as a primary consideration, as a substantive requirement ( CFE16 v Minister for Immigration and Border Protection [2020] FCCA 1083 (“CFE16”); Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762 (“Nguyen”)) or as an element of the requirement to provide procedural fairness (Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480; Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133) or both. As an element of the requirement to provide procedural fairness, the decision-maker would not be required to treat the best interests of any affected child as a primary consideration, however it would place an obligation to give notice to the affected person if intending not to do so. Failure to comply with this obligation would give rise to jurisdictional error (DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, [53] (Steward J); Nguyen, [49], [56] (Goodchild J).
In this instance however the applicant submits that the Court need not undertake this exercise and form a view about the characterisation of the decision-maker’s obligation, where the Tribunal failed to treat the interests of the applicant’s child as a primary consideration, and did not put him on notice that it intended not to do so.
In failing to put the applicant on notice of this, the Tribunal denied the applicant procedural fairness (Wan 143 [34]).
By Ground 1.3, the applicant pleads in the further alternative that once the Tribunal had decided to consider the best interests of the child, it was required to do so in accordance with the test established in the authorities.
The Tribunal failed to give “proper, genuine and realistic consideration” to all of the child’s interests that would be affected by the cancellation of his father’s visa. The Tribunal made a finding that the child’s best interests were to remain with both of his parents, and this interest trumped any others that may have been affected by the visa cancellation. In doing so, the Tribunal failed to “actively … engage with what is likely to occur to [the] child, and … articulate, with some degree of specificity, how the child's interests are likely to be affected” (G v Minister for Immigration and Border Protection [2018] FCA 1229, [219])
Although the Tribunal made references to the possibility, it dismissed as a real possibility, that the applicant’s wife would remain in Australia with their child, effectively meaning that the applicant’s visa cancellation would separate the family unit.
The Tribunal did not consider submissions raised to the Tribunal that there was a real prospect of the child being separated from the father, and the only way for the family to remain together would be through relocation to Iran. The submissions noted that there was no available evidence before the Tribunal to justify a finding that the applicant would be able to relocate to Germany with his son (CB pg.423-4). Further, the submissions iterated findings by the Committee on the Rights of the Child about various rights of the child that were at risk of being adversely affected if the child was removed to Iran with his parents.
The applicant submits that the Tribunal did not consider how the child’s best interest would be affected by any of the possibilities raised in the submissions. As the Tribunal did not accept that the applicant or his wife would be of any interest to Iranian authorities, they drew an implication that the child’s best interests would not be affected by removal to Iran or Germany. The Tribunal rejected that there was a real chance the applicant’s German citizenship would be cancelled and failed to address the potential implications on the child’s best interests were he to be raised in Germany.
The applicant submits that although different forms of the Tribunal’s error have been articulated, they amount to a single error, which is a failure to comply with the requirements of the Act. The Tribunal’s error as set out in Grounds 1 to 3 was material to its decision such that there existed a realistic possibility that the decision made could have been different absent the error ( LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ)).
The threshold of materiality will be met if there is a realistic possibility that the decision could have been different had an error not been made. The applicant considered that the Tribunal decision would have had a different outcome if the Tribunal had done the following, as required by the Act:
47.1. treated the child’s best interests as a primary consideration in its decision;
47.2.given the applicant notice that it did not intend to treat the best interests of his child as a primary consideration, enabling him to make further specific submissions on the potential effect on his child should he accompany his parents to either Germany or Iran or Iraq, or, alternatively, separated from his father;
47.3. applied the proper test in accordance with the established caselaw, by:
47.3.1.taking into account any interests of the child other than his interest in remaining with both parents, including (but not limited to):
47.3.1.1[his] health, including [his] psychological health and happiness, [his] social and educational development as [a] balanced, nurtured young citizen[ ] of this country;
47.3.1.2. his language development;79
47.3.1.3. his educational opportunities;80
47.3.1.4. any connections to the Australian community;
47.3.1.5. the benefits conferred by Australian citizenship;
47.3.2.properly articulating the potential effects on the child of any of the reasonably open possibilities referred to in para [40],82 such as:
47.3.2.1.the impact on any of the interests identified above were the child to be removed to another country and, in particular, Iran, given various factors including his status as a member of an Arabic-speaking ethnic minority and the applicant’s family’s location in Iran;83 and
47.3.2.2.the impact on the child’s interests were he to be removed to Iraq; and
47.3.2.3.the impact on the child and his relationship with his father were he to stay with his mother in Australia after his father was removed;84
47.3.3. properly assessing the weight to be given to the above matters;85
47.4.properly considered the applicant’s submissions in relation to the above matters, particularly the submissions in relation to the potential effects on the child’s best interests were he be removed to Iran;
47.5.not made a decision that was irrational or unreasonable in any of the ways outlined in paragraphs [40]-[42] above.
(references omitted)
The applicant argues that the Tribunal failed to characterise the affected child’s best interest and treat them as a primary consideration. Had the Tribunal done so, there is a realistic possibility that it may have decided that those considerations outweigh any other considerations supporting the cancellation of the father’s visa. The error made by the Tribunal was material to its decision and therefore constitutes jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
As to the applicant’s proposition in Ground 1.1 that the Tribunal did not treat the best interests of the applicant’s child as a primary consideration, the first respondent argues that the Tribunal in fact did.
In relation to the pleading in the alternative, that the Tribunal denied the applicant procedural fairness by failing to put him on notice that the best interests of the affected child would not be a primary consideration, it is submitted that even if the Tribunal did not do so, there was no denial of procedural fairness. This is in circumstances where the decision of Teoh, which the applicant relies on, was wrongly decided, had been overtaken by the enactment of provisions codifying the requirements of procedural fairness and for the current application, there was no ‘practical unfairness’.
It is observed that, at the time of the Teoh decision, the delegate had regard to the applicable policy guidance in regard to assessing the character requirement for the applicant. In operating under this policy instruction, the delegate in that matter did not give primary consideration to the best interests of the child, however Mason CJ and Deane J observed that article 3 to the CROC does not put the best interests of the child as the primary consideration (Teoh at [239]). Therefore, it is open to a decision-maker to have regard to the affected child’s best interests as a consideration amongst multiple primary considerations. Furthermore, it does not follow, when considering the best interests of the affected child, that any finding should weigh in the applicant’s favour. Branson, North and Stone JJ observed in Wan at [33] that the constituted Tribunal was entitled to conclude after considering all other evidence and material before it that the strength of other considerations outweighed the best interests of the children.
The applicant complains that, firstly, the Tribunal failed to take into account any other interests of the child that would be affected by the visa cancellation, were the child to be removed to Iran or Germany. The applicant’s only submission in relation to Germany was that it was not open for the Tribunal to find that he could go there, and the only way the family unit could remain together would be for them to relocate to Iran. The Tribunal found that the applicant was a German citizen and he could return to Germany and sponsor his wife and child to live with them there.
It is “artificial” for the applicant to suggest that the Tribunal was required to assess the best interests of the applicant’s child by reference to Iran. Further, in the absence of any claims in relation to Germany to suggest an alternative, the Tribunal was required to make further findings that seemingly differentiated German society from Australia. This is in circumstances where the applicant gave evidence that his son was not yet integrated into society.
Secondly, the applicant complains that the Tribunal did not take into account any other interests of the child that would be affected if the child remained in Australia with his mother but without his father. To that point, it is submitted that the applicant did not point to particular other interests that would be affected. The Tribunal unsurprisingly only focused on the loss of direct contact between the father and the child.
To the extent that the applicant relies on Teoh to argue that he was denied procedural fairness, the first respondent maintains that Teoh was wrongly decided, but accepts that, as the High Court has not overruled Teoh, any argument to that point is “foreclosed” by authority.
The operation of Teoh has been curtailed by the addition of ss 422B(1) and 425 of the Act. The first respondent submits that this statutory scheme leaves no room for the obligation in Teoh, however, takes this argument no further for the same reasons as above.
The applicant’s argument that he suffered as a result of procedural unfairness by the Tribunal’s failure to put the applicant on notice of how it proposed to approach its consideration of the child’s best interest is “difficult to see”.
Reliance is placed on Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, where Gleeson CJ expressly stated:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
Counsel for the first respondent submitted that Teoh can be distinguished from the present case in observing that the applicant in Teoh made no submissions to the CROC but may as well have done so, had the Minister’s delegate drawn his attention to it and indicated an intention not to have regard to some aspect of it. In the present case, the applicant’s representative was aware of the CROC and referred to article 3 before proceeding to make submissions as to how the Tribunal should reason with regard to those matters.
The first respondent draws a link to Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 (“Kaur”) and the present case. The applicants in Kaur similarly argued in the alternative that: a) the Tribunal was bound by Teoh to treat the best interests of his child as a primary consideration; or b) that it denied him procedural fairness by failing to put him on notice in advance of its intention not to. The Full Court of the Federal Court disposed of the latter argument and noted that the applicants had raised the applicability of the CROC and presented arguments on this basis.
In the present case, the applicant and his representative had the delegate’s decision, which defined the issues on review. It was open to the applicant, and he had ample opportunity to give evidence in relation to the delegate giving minimal weight to the best interests of the child, as the delegate found that the family could relocate together, including to Germany, if the applicant sponsored his wife and child. The applicant did make submissions in this regard, however, the Tribunal ultimately reasoned in a manner that was not dissimilar to the delegate. The Tribunal afforded greater weight to the best interests of the child, as it considered the possibility that visa cancellation would split the family. Therefore, it is false for the applicant to claim that he was not put on notice that the Tribunal might reason in this manner.
CONSIDERATION
This case exemplifies Sir Walter Scott’s saying of ‘Oh, what a tangled web we weave, when first we practice to deceive’[1].
[1] Sir Walter Scott, poem ‘Marmion” first published 1808
As noted by the Tribunal at [25] – [32], the applicant has conceded that he entered Australia as the holder of a German passport in the name of EH, but has consistently denied that he is in fact EH. At [47], the Tribunal found the applicant had deliberately concealed the German passport as it is a genuine travel document with his photograph in it. At [56] – [58], the Tribunal found the passport to be genuine and that the applicant is a German citizen known as EH.
The Court noted that at [58], the Tribunal records that the applicant’s representative submitted that the only country the applicant could return to is Iran. The Court finds it was on this basis that at the beginning of the Tribunal decision record, the relevant country of residence is Iran. However, any consideration of where the applicant could return to must include Germany, given the Tribunal’s finding that the applicant is a German citizen known as EH.
Having found the grounds existed for the cancellation of the applicant’s visa, the Tribunal then conducted an orthodox consideration of whether the applicant’s visa should be cancelled by reference to s109(1)(c) of the Act, the prescribed circumstances set out in reg 2.41 of the Regulations, and Procedures Advice Manual 3. None of the considerations set out in reg 2.41 of the Regulation is of greater or lesser importance than any other consideration. Whilst not exhaustive, they are simply matters that should be considered in arriving at a final decision as to whether the matters that weigh in favour of cancellation are outweighed by other matters.
It is within this context that the applicant seeks to suggest that the Tribunal miscarried in its consideration of his case.
Ground One
Ground one revolves around the consideration by the Tribunal of the best interests of the applicant’s son, born in 2015, as a factor in considering whether the applicant’s visa should be cancelled.
The ground first complains that the Tribunal did not give this factor ‘primary consideration’ when undertaking its overall consideration of whether the applicant’s visa should be cancelled.
At [80] – [92] the Tribunal considered the impact of the applicant’s visa being cancelled on his son and wife.
At [81], the Tribunal set out Article 9 of the CROC, and in particular that ‘a child should not be separated from its parents against their will, except where competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary in the best interests of the child’. The Tribunal at [82] specifically notes that the cancellation of the applicant’s visa would make ‘direct physical contact with his son on a regular basis difficult and makes for a difficult decision in this case’. (emphasis added). Accordingly, the Court is satisfied that the Tribunal was well aware of the existence of Article 9 of the CROC, and the fact that it was a relevant consideration in any decision to cancel the applicant’s visa. Notwithstanding this, the Tribunal did not at any point say the interests of the child were a ‘primary consideration’.
At [84], the Tribunal gave the issues relating to the possible separation of the child from his father ‘some weight’. It is this expression, in particular, that the applicant takes issue with.
The Tribunal then, in the course of its consideration, noted that the applicant’s wife had voluntarily taken their son to Iran between September 2015 to April 2016. The Tribunal found this to be inconsistent with the claim by the wife that she has concerns about the welfare of herself or their son returning to Iran.
Critically, the Tribunal found that the applicant’s child could accompany his parents to Iran (on the basis that the applicant was removed to Iran and the wife accompanied him) or Germany, if the applicant can apply for a visa for his wife and son to reside there.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19], Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
The applicant submits that the expression ‘some weight’ does not accord with the requirement that the interests of the child be the ‘primary consideration’.
The applicant relies upon the reasoning of Stewart J in DXQ16 v Minister for Immigration and Multicultural Affairs [2020] FCA 1184 at [55], where the following was said in respect of slightly different wording that the Tribunal had not:
appreciated the significance of the need to give those interests “primary” consideration… The reference [in] the Tribunal’s reasons… that ‘[o]n balance’ the appellants circumstances, including the interests of the children, did not mean that the visa should not be cancelled, does not reveal any real balancing of conflicting considerations. Reliance is also placed on Reithmuller J in CFE16 v Minister for Immigration and Border Protection [2020] FCCA 1083 at [26] (citations omitted)
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, is being given “some weight… as a factor not to cancel the visa”. 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 has 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 in the 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.
I adopt the approach of Judge Riethmuller (as he was then) in CFE16 as being the correct manner in which the Tribunal’s decision should be considered. At [84], the Tribunal clearly states what the best interests of the child are: ‘to remain with both his parents’. This consideration is then given ‘some weight’. Then the Tribunal at [90] finds it is possible the child could accompany his parents either to Iran or Germany (if the applicant were able to obtain a visa for them).
At [102] – [103], the Tribunal notes the hardship to the applicant by being separated from his wife and son, if they remain in Australia, and he is returned to Iran (as opposed to Germany, which in the Court’s view is and was always an option). The Tribunal then finds that the circumstances of the case outweigh the applicant’s desire to remain in Australia and the disruption caused to his family.
There is no real discussion of why the best interests of the child are outweighed by the other considerations, noting this was only given ‘some weight’. In the Court’s view, the error identified by Justice Steward and (then) Judge Riethmuller set out above is present in this case, and the decision is affected by jurisdictional error.
The Court does not accept the respondent’s submission that Teoh is wrongly decided. This Court is bound by that decision unless and until it is overturned.
The Court considers the error identified to be material, such that there is a realistic possibility the decision could have been different but for the error.
Given this finding, it is not necessary to deal with the other grounds of judicial review other than to say, at an impressionistic level, the Court finds no great merit in them.
DETERMINATION
The decision of the Tribunal is quashed and the matter remitted to the Tribunal for further consideration. The Court will hear from the parties on the issue of costs.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 May 2025
0
21
2