Kaur v MIBP

Kaur v MIBP is a case where the appellants challenged the decision of the Migration Review Tribunal (MRT) to refuse their application for skilled visas. The applicants argued that the Tribunal had misconceived its function and misapplied the public interest criterion 4020(4) in failing to consider the best interests of their son, Jazzveer, in accordance with the Convention on the Rights of the Child. The Federal Circuit Court (FCC) dismissed the applicants' appeal, holding that the Tribunal was not obliged to apply the Convention and therefore did not fall into jurisdictional error.

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.