FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Appeal from: Kaur & Ors v Minister for Immigration & Anor [2017] FCCA 844 File number: VID 406 of 2017 Judges: DOWSETT, PAGONE, BURLEY JJ Date of judgment: 27 November 2017 Catchwords: MIGRATION – application for skilled visa – public interest criterion 4020 – evidence of provision of “bogus document” to assessing authority – whether the Tribunal misconceived its function or misapplied public interest criterion 4020(4) – whether Tribunal erred by failing to undertake inquiries – whether Tribunal should have exercised power to summons witness – appeal dismissed Legislation: Migration Act 1958 (Cth) s 363
Migration Regulations 1994 (Cth)
Cases cited: AB v Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53
Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875
Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Singh v Minister for Immigration and Border Protection [2017] FCA 1285
Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
Date of hearing: 9 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellants: Mr L Howard (Pro Bono) Solicitor for the Appellants: ASA Law (Pro Bono) Counsel for the First Respondent: Mr R Knowles Solicitor for the First Respondent: The Australian Government Solicitor Counsel for the Second Respondent The Second Respondent filed a submitting appearance, save as to costs. ORDERS
VID 406 of 2017 BETWEEN: BALIHAR KAUR
First Appellant
KAMALJIT SINGH
Second Appellant
YUVRAJ SINGH
Third AppellantJAZZVEER SINGH BRAR
Fourth AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
DOWSETT, PAGONE, BURLEY JJ
DATE OF ORDER:
27 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first and second appellants pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
1. INTRODUCTION
The appellants are Ms Balihar Kaur, her husband Kamaljit Singh and their two sons, Yuvraj Singh (who is now over 18 years of age) and Jazzveer Singh Brar (who is now aged 9). All are citizens of the Republic of India. On 13 December 2009 Ms Kaur applied for a Skilled (Provisional) (Class VC) visa (Visa) pursuant to the Migration…
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CaseChat Overview and Summary
The legal issues in this case centred on the application of the public interest criterion 4020(4) and whether the Tribunal was required to consider the best interests of the child in accordance with the Convention on the Rights of the Child. The appellants argued that the Tribunal should have taken into account the best interests of their son as a primary consideration and weighed these factors against other factors. However, the court held that unenacted international obligations, such as the Convention, are not mandatory relevant considerations attracting judicial review for jurisdictional error unless incorporated by Parliament into domestic legislation. The court also noted that the Convention does not give rise to a corresponding substantive obligation which conditions the exercise of statutory powers.
The court rejected the appellants' arguments, holding that the Tribunal was not under an obligation to apply the Convention and did not fall into jurisdictional error in failing to consider the best interests of the child. The court held that the best interests of the child do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers. The court also noted that the Tribunal had exercised its discretion to consider the best interests of the child and had given proper consideration to the relevant factors.
The appeal was dismissed, and the appellants were ordered to pay the respondents' costs. The Federal Circuit Court held that the Tribunal was not obliged to apply the Convention and did not fall into jurisdictional error in failing to consider the best interests of the child. The court also held that unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error unless incorporated by Parliament into domestic legislation.
Orders
Orders of the court
1. The appeal be dismissed.
2. The first and second appellants pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appellants applied to the FCCA to review the decision of the MRT. It is unnecessary to discuss the primary judge’s reasons, save to note that he was not satisfied that the decision of the Tribunal was affected by jurisdictional error, and dismissed the application.5. CONSIDERATION OF THE GROUNDS OF APPEAL5.1 Ground 1 of the appeal Public interest criterion 4020(4)(a) provides that the Minister may waive the requirements of any or all of (1)(a) or (b) and subclause (2) if satisfied that compelling circumstances that affect the interests of Australia justify the granting of the visa. The appellants contend that the purpose of sub-paragraph (4) is to protect against the potentially capricious operation of (1) and that by the Executive ratifying the Convention, Australia has given a solemn undertaking to the world at large that it will “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” make “the best interests of the child a primary consideration”, citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 301 (Toohey J) and at 285, 287 (Mason CJ and Deane J). They further contend that the Tribunal correctly satisfied itself that compliance with the Convention constituted compelling circumstances that affect the interests of Australia within PIC4020(4)(a). As a consequence, the appellants contend that the Tribunal was obliged to take into account the best interests of Jazzveer in accordance with the Convention, and in particular by considering what is best for his health, social, linguistic and educational development, his identity, culture and citizenship prospects, and weigh these factors in the balance against other factors. In failing to take these steps, the appellants contend that the Tribunal fell into jurisdictional error. We reject these submissions for the following reasons. First, the incorrect premise underlying the appellants’ arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act. In the present context, the observations of French J (as he then was) in Le at [59] are particularly apposite:There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration ‘in all cases concerning children’. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions – Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the ‘... established doctrine’ that obligations under international treaties ‘... are not mandatory relevant considerations attracting judicial review for jurisdictional error’. The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law – Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.