Lie v Minister for Immigration
[2018] FCCA 843
•13 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIE v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 843 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to treat the best interests of the applicant’s grandchildren as a primary consideration, contrary to Australia’s obligations under the United Nations Convention on the Rights of the Child. |
| Legislation: Migration Act 1958, ss.99, 101, 107, 109, 474 Migration Regulations 1994, reg.2.41 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 [2005] AATA 142 Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 Poroa v Minister for Immigration and Border Protection [2017] FCA 826 Otene and Minister for Immigration & Multicultural & Indigenous Affairs [2005] AATA 142 Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 |
| Applicant: | PIT MOY LIE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1685 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 12 February 2018 |
| Date of Last Submission: | 12 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Hughes |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the First Respondent: | Ms K. Pham |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1685 of 2017
| PIT MOY LIE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Indonesia who, on 3 January 2008, was granted a Contributory Parent visa (subclass 143) (“Contributory Parent visa”). On 6 March 2013 she was granted a BB-155 Resident Return visa (“Resident Return visa”) which is the subject of this proceeding. On 7 September 2016 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa under s.109 of the Migration Act 1958 (“Act”) on the basis that the applicant had provided incorrect information in her application for the Contributory Parent visa. The applicant applied to the second respondent (“Tribunal”) for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant Legislation
Subdivision C of div.3 of pt.2 of the Act sets out the circumstances in which visas based on incorrect information may be cancelled. Relevantly for this proceeding, at all material times s.101 of the Act provided:
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.
Section 99 also provided that any information given or provided in relation to an application for a visa including to the Tribunal, is taken, for the purposes of s.101(b) of the Act, to be an answer to a question in the application form.
Pursuant to s.109 of the Act, the Minister may cancel a visa if its holder has failed to comply with s.101 of the Act. That section provides:
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.
At all material times the prescribed circumstances referred to in s.109(1)(c), were set out in reg.2.41 of the Migration Regulations 1994 (“Regulations”) in the following terms:
2.41 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;
(j) 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.
Before a visa may be cancelled pursuant to s.109, the Minister must first provide the relevant visa holder with an opportunity to address the Minister’s concerns regarding the visa holder’s compliance with the Act. In that connection s.107 of the Act relevantly provides:
107 Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 … , the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B)shows cause why the visa should not be cancelled; and
…
Background facts
Relevant background facts were summarised by the Tribunal in its decision record as follows:
a)the applicant has four children living in Australia and a husband who continues to live in Indonesia;
b)the applicant applied for a Contributory Parent visa on 14 November 2006. Her youngest daughter (“Aity”), who has a severe intellectual disability and autism, was listed in the application as an adult non-migrating dependent;
c)on 12 September 2007 an officer of what is now the Department of Home Affairs (“Department”) asked that Aity undertake a medical examination;
d)on 13 September 2007 the applicant’s agent contacted the Department and advised that Aity was no longer a dependent as she was working;
e)the Department was provided with a statutory declaration from Aity dated 17 September 2007, witnessed by the applicant and her husband, which stated:
I, Aity Tjahyadi, herby would like to declare to you that I am no longer a dependent in the family.
f)upon receiving confirmation that she was no longer an adult dependent child, the Department did not require Aity to undertake a health clearance and the applicant’s Contributory Parent visa was granted on 3 January 2008;
g)on 13 January 2016 a Child Residence (BT-802) visa application was lodged for Aity which listed the applicant as the parental sponsor. In order to be eligible for this class of visa, Aity, who was over the age of 25 at the time, had to meet the definition of “dependent child”. In support of this application the applicant submitted a statutory declaration in which she declared that Aity had always been dependent on her (the applicant) for her physical, emotional and financial needs and was unable to work, study or live on her own.
Notice of Intention to Consider Cancellation of 29 June 2016
On 29 June 2016 a Notice of Intention to Consider Cancellation (“NOICC”) was issued to the applicant under s.107 of the Act. In the NOICC, the Department alleged that the applicant had not complied with s.101(b) of the Act because the information provided to the Department in 2007, declaring that Aity was not a dependent was incorrect. Specifically:
Based on the information provided by you in the Child visa application, Aity has always been dependent on you; and had she completed a health assessment when you applied for your Contributory Parent (subclass 143) visa she would have been unlikely to have met the health requirement. Therefore it appears that Aity was withdrawn from your 143 visa application to avoid a negative health assessment which in all likelihood would have prevented the grant of your Contributory Parent (subclass 143) visa.
Your answer at Question 54 of Form 47PA declared that your daughter Aity was a dependent non-migrating child of yours. You subsequently provided information to the department which advised that Aity was no longer dependent on you. By operation of s99 of the Act, this information is taken for the purposes of section 100, paragraph 101(b) to be an answer to a question in your application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise. I consider that you have provided incorrect answer to a question in the application form 47PA for your Contributory Parent visa.
The NOICC invited the applicant to respond in writing stating why her Resident Return visa should not be cancelled and to comment on the alleged non-compliance with s.101(b) of the Act.In response the applicant’s representatives provided written submissions and a statutory declaration of the applicant dated 15 July 2016 in which she made the following claims:
a)a migration agent advised her that Aity was dependent on the applicant’s husband rather than the applicant. She agreed to withdraw Aity as a dependent on this advice because Aity was to remain in Indonesia with the applicant’s husband and would be included as a dependent in his future visa application. At the Tribunal hearing the applicant claimed she misunderstood word ‘dependent’ in her signed letter to the Department (dated 3 October 2007) to refer only to financial dependency;
b)she had no knowledge of the telephone call made by her migration agent to the Department on 13 September 2007 and had not authorised the agent to tell the Department that Aity was working;
c)she is Aity’s primary carer and assists in the care of her grandchildren who are Australian citizens; and
d)cancellation of her visa would have devastating physical and psychological consequences for Aity and result in a negative impact on the rest of her family.
The applicant’s written submissions referred to and quoted from a statutory declaration of her daughter Sianty Widjaja declared on 17 June 2016, a copy of which was included with the submissions. Mrs Widjaja relevantly declared:
We are a very close knitted family. My family and I live next door to Aity, my mother and my oldest sister, Siuty. Due to proximity of where we live, my young daughters spend a lot of time with my mother and both my sisters resulting in a very strong bond amongst them. I believe long term separation from my mother and sisters would have adverse effects on my daughters.
It is not possible for myself to consider life outside of Australia. …
On 7 September 2016 the Department wrote to the applicant to advise that her Resident Return visa had been cancelled on the basis of her non-compliance with s.101 of the Act.
Proceedings before the Tribunal
On 28 November 2016, the applicant provided written submissions to the Tribunal that addressed each of the prescribed circumstances set out in reg.2.41 of the Regulations other than reg.2.41(f). The written submissions detailed the applicant’s family situation including her relationship with her grandchildren and the role of a migration agent in the alleged non-compliance with s.101.She also provided a further statutory declaration made by her daughter Sianty Widjaja, this one having been declared on 12 November 2016. Amongst other things, Mrs Widjaja declared in that document that:
Being separated from their grandmother would cause an enormous amount of trauma and emotional distress to my children. They have developed such a strong bond with my mother all of their life. There are days Lara would refuse to go home as she prefers to stay in grandma's house. I am at lost as to how I am meant to explain to my daughters if my mother were to leave Australia after all these years where she has taken such an active role of nurturing them. Without a doubt my children will feel a sense of emotional abandonment.
Referring to that evidence, the applicant’s representatives submitted in her written submissions of 28 November 2016:
As Australian citizen children would be impacted by the removal of their grandmother, Ms Lie, from Australia, we respectfully submit that this situation would bring Australia'[s] obligations as a party to the Convention on the Rights of the Child (CROC) into consideration.
Under Article 3 of the Convention on the Rights of the Child, the best interest of the child is specified as a primary consideration in all actions involving children:
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.
We respectfully submit that Article three does not define or limit which relationships should be considered in determining whether a decision is or is not in the best interest of the child. The CROC simply and unambiguously gives consideration to “all actions concerning children” (emphasis added). We would, therefore, submit that - in determining what is or is not in the best interest of the child - relationships other than between a natural or legal parent and the child should also be considered when making a decision relating to what is or is not in the best interest of a child/children.
…
In the present case, Ms Lie has developed a strong emotional, loving and affectionate relationship with her Australian citizen grandchildren, who have known her to be their grandmother their whole lives. In the eight years that Ms lie has been in Australia, she has taken on an integral role to the children's emotional, psychological, and mental development, teaching them about their heritage, culture, tradition and strong family values. We would submit that nature of the children's relationship with Ms Lie, the duration of their long established relationship, the young age of the children, the children's citizenship status as well as the detrimental effects that the separation from their grandmother would have on the children, needs to be a primary consideration and how a cancellation of Ms Lie's permanent residency would impact on Georgia and Lara’s life.
The applicant appeared before the Tribunal on 6 December 2016. On 20 March 2017 the Tribunal wrote to the applicant inviting her to respond to information contained in the Department’s decision record. A copy of the Department’s decision was attached to the letter.
The applicant’s representatives responded to the Tribunal in a letter dated 3 April 2017. As summarised by the Tribunal, they made the following submissions:
·At no time did the applicant or her family advise their previous agent that Aity was working …
·The applicant had been willing to have Aity submit to a medical examination when requested to by the Department on 12 September 2007;
·The previous agent acted outside of their authority and the applicant should not be attributed with having provided false information;
·The applicant lacked English language skills as evidenced by her statements during the Tribunal hearing;
·The statement in relation to Aity no longer being a dependent in the family should not be given the complex legal interpretation it would carry within the migration law framework;
·As per the representative’s submissions at the Tribunal hearing, the applicant had no control over the information [in relation to Aity] “because the agent clearly intervened and to that extent this family was taken advantage of”;
·The applicant has always been consistent in her evidence regarding her daughter’s dependence;
·The applicant and her family have not had the chance to address the issue of a health waiver for Aity and they are capable of covering her costs for the rest of her life;
·Although agents act on behalf of their clients, this does not extend to fraudulent conduct or conduct that is contrary to the client’s express wishes;
·… her 2005 visa application was withdrawn … because her father was ill and no adverse inference should be drawn from the timing;
·Irreparable harm and severe hardship will occur to Australian citizens and residents including an elderly neighbour, if the visa cancellation is not set aside.
The Tribunal’s decision and reasons
Non-compliance with s.101
The Tribunal was satisfied that there had been non-compliance by the applicant with s.101 of the Act, as described in the NOICC.
Cancellation of the visa
After determining that there had been non-compliance of s.101 of the Act, the Tribunal then considered whether the applicant’s visa should be cancelled under s.109(1) of the Act.Having regard to the applicant’s response to the NOICC and the prescribed circumstances set out in reg.2.41 of the Regulations, the Tribunal assessed the material before it under the following headings;
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 subdiv.C of div.3 of pt.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; and
j)any contributions made by the holder to the community.
The Tribunal relevantly made the following observations and findings in relation to each of those matters:
a)the decision to grant the applicant a Contributory Parent visa was based on incorrect information and would not have been granted if Aity had undertaken a health assessment and failed the medical requirement;
b)the Tribunal agreed with the delegate’s assessment that Aity’s medical condition was not kept from the Department due to a coincidental change to her dependency arrangement from her mother to her father at the time she was requested to undertake a health assessment; and
c)the Tribunal did not accept the applicant’s claim that she understood the word “dependent” as referring to financial dependency alone when she signed the letter verifying Aity’s non-dependence. Rather, the Tribunal considered this claim to be inconsistent with her prior claim that she was not proficient in English.In light of these considerations the Tribunal was not satisfied the applicant had been forthcoming or truthful to the Department or the Tribunal in response to the NOICC.
Having considered the circumstances in which the incorrect information had been provided and the explanations provided to the Tribunal and the Department, the Tribunal made the following further observations in respect of the question whether the applicant’s visa should be cancelled;
a)the Tribunal described the non-compliance on the part of the applicant as “a serious incident with far reaching consequences”;
b)with respect to the applicant’s claim that the prior migration agent had taken advantage of her and her family, the Tribunal noted no evidence had been submitted as to what the agent would have gained by doing so;
c)the Tribunal noted there was no evidence that the applicant or her daughters had ever suffered harm in Indonesia on account of their Chinese ethnicity; and
d)noting the applicant’s contention that Australia’s obligations under the United Nations Convention on the Rights of the Child (“Convention on the Rights of the Child”) were engaged in this matter, the Tribunal acknowledged that numerous factors weighed in favour of not cancelling the applicant’s visa, including the effect of separation on the applicant’s children and grandchildren. The Tribunal also noted that nine years had passed since the relevant non-compliance. The Tribunal found, however, that the matters weighing in favour of not cancelling the visa were outweighed by the following considerations:
i)the applicant had made a choice to withhold information from the Department about Aity by having her declared no longer dependent;
ii)proper disclosure would have probably resulted in the applicant’s visa being refused; and
iii)the applicant’s subsequent untruthful behaviour in claiming that she had been mistaken and was the victim of fraud on the part of her previous migration agent.
The Tribunal also considered the Commonwealth Medical Officer’s finding that Aity did not meet the health requirement and that the cost to the Australian community, if the visa were to be granted, exceeded $2.8 million dollars.
On the basis of those matters, the Tribunal concluded that there had been non-compliance by the applicant as described in the NOICC and that her visa should be cancelled.
The Proceeding in this Court
In her amended application the applicant alleged:
1.The Tribunal failed to afford the applicant procedural fairness.
Particulars
a.The applicant submitted that the interests of her grandchildren were concerned by the Tribunal’s decision and that their best interests should be a primary consideration for the Tribunal (CB292).
b.The Tribunal did not notify the applicant that it would not treat the best interests of the children as a primary consideration.
c.In determining whether to exercise a discretion to cancel the applicant’s visa the Tribunal failed to consider, as a primary consideration or at all, the best interests of the children affected by the decision.
d.By reason of Australia’s accession to the UN Convention on the Rights of the Child, the applicant had a legitimate expectation that the best interests of the children would be a primary consideration for the Tribunal unless notified otherwise.
Consideration
As noted earlier, in written submissions to the Tribunal dated 28 November 2016, the applicant’s representatives argued that Australia’s obligations under the Convention on the Rights of the Child were engaged in this matter. That treaty relevantly defines children as persons below the age of 18 years. The only persons who met that description in this case were the applicant’s grandchildren, the children of her daughter Sianty Widjaja. Further, although the best interests of children are not amongst the matters which reg.2.41 requires a decision-maker to take into account, that list of mandatory considerations is not exhaustive of the matters which a decision-maker may, or even should, take into account: s.109(1)(b) of the Act; Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248 at 273 [68]. As the applicant’s written submissions to the Tribunal had made a substantial, clearly articulated argument based on the Convention on the Rights of the Child that the interests of her grandchildren should be one of the Tribunal’s primary considerations, the Tribunal was required to consider it: Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394 [24] and 408 [95]. The applicant also argued that if the Tribunal decided not to treat her grandchildren’s interests as a primary consideration, she was entitled to be advised of this so she might present a case against the Tribunal taking such a course: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-2; Poroa v Minister for Immigration & Border Protection [2017] FCA 826 at [51]. The applicant submitted that the Tribunal had failed to do either. In that connection, and as a preliminary factual matter, she referred to paras.56-59 of the Tribunal’s reasons saying that, in those paragraphs, the Tribunal essentially rejected the submission that the interest of the children should be one of its primary considerations. In those paragraphs the Tribunal said:
56.Submissions were made in relation to the UN Convention on the Rights of the Child. The Tribunal has considered the representative’s claims in this regard including the case the Tribunal was referred to: Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142. The representative referred to paragraphs 122 and 149 in the decision in Otene to provide support for the requirement to consider the best interests of the child (in this case, the applicant’s Australian citizen grandchildren) as a primary consideration. Paragraph 122 of Otene as quoted by the representative was in fact a submission by Mr Otene’s solicitor that was not accepted in its entirety. It was not a finding by the Deputy President in his decision. The Deputy President did not decide that the interests of Mr Otene’s grandchildren were to be treated as a primary consideration.
57.The Tribunal notes the decision to set aside cancellation of Mr Otene’s visa was made based on a combination of factors, but not his acknowledged close relationship with his grandchildren.
As to whether his [Mr Otene] not being a physical presence in their daily lives would have any lasting negative impact is difficult to judge. I accept that he is a very large presence in their lives. I accept that he is well-loved and that he would be sorely missed. Whether it would go any further than that in the long term is difficult to assess. Children are resilient and have the warmth of their parents but, in a family which has the close ties of the Otene family, Mr Otene’s absence would, I find, be at least in the nature of a constant nagging feeling that something was missing. I cannot take it any higher than that.
…
59.A Psychosocial Assessment Report in relation to the applicant by Social Worker and Psychotherapist Ms Robin Bowles was provided in evidence. The Tribunal accepts what was reported to the social worker, that the cancellation of the applicant's visa will have a significant impact on her and that her daughter Siuty is also very anxious and upset about the situation. However, the Tribunal notes that while Siuty is single and does not have children, she has her sister Sianty and her family nearby to support her. The applicant’s husband is still in Indonesia and they have cared for Aity in the past while their other children have been in Australia. The Tribunal understands there would be concerns about care of Aity in future and that the applicant is likely to be prevented from reapplying for a visa to Australia for a period of time, but this does not outweigh the fact the applicant’s visa was granted because information was withheld from the Department.
The applicant’s submission reads too much into those passages. At no point did the Tribunal express a view that the Convention on the Rights of the Child should not be applied when it came to make its decision. Paragraphs 56 and 57 were concerned with correcting an error in the applicant’s submissions and with noting that the ratio of the decision in Otene and Minister for Immigration & Multicultural & Indigenous Affairs [2005] AATA 142 was not based on the Convention on the Rights of the Child, in that the primary decision was set aside on other grounds. Paragraph 59 cited an expert’s report whose substance, rather than its speculative commentary, concerned the applicant and her daughter Siuty rather than the grandchildren and so was not relevant to the argument based on the Convention on the Rights of the Child.
Contrary to the burden of the applicant’s submissions, the part of the decision record which is materially relevant to whether the Tribunal observed the relevant requirement of the Convention on the Rights of the Child is para.61 where the Tribunal said:
The Tribunal accepts there are a number of factors in the applicant's favour for not cancelling the visa. These are, the age of the applicant and her husband and the effect this will have on the care of Aity; the effect cancellation will have on Aity physically and psychologically, the effect of separation on the applicant's children and grandchildren; the effect on Ms Suity's mental health in light of her closeness to her mother and the harm and hardship to Australian citizens and residents, including an elderly neighbour. The Tribunal has considered these matters carefully in making a decision in this case and given them some weight. (emphasis added)
When considering the best interests of the grandchildren, the Tribunal was required to identify “what the best interests of the children indicated that it should decide” with respect to the applicant’s visa: Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 at 140 [26]. I infer from para.61 of the Tribunal’s reasons that it believed it to be in the best interests of the applicant’s grandchildren that she remain in Australia. That seems the inescapable inference to be drawn from the Tribunal’s statement that a factor in favour of allowing the applicant to remain in Australia was the effect her departure would have on her grandchildren.
The remaining question is whether the best interests of the applicant’s grandchildren were treated by the Tribunal as a primary consideration when it came to weigh the various issues which it had to take into account. Wan’s case discussed in the following terms how a primary consideration is to be treated:
… Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. (at 142 [32])
That is what the Tribunal did in this case. Having referred in para.61 of its reasons to matters which weighed in favour of the applicant retaining her visa, in para.62 the Tribunal moved to consider those matters which weighed in favour of cancellation:
Against the applicant's current and future circumstances and those of her family and others, the Tribunal has weighed the fact that everything that has happened in the last nine years took place because incorrect information was provided. The applicant made the choice to withhold information from the Department about Aity by having her declared no longer a dependent. This information would have likely affected the grant of the Contributory Parent Visa. In addition, as was found by the Commonwealth Medical Officer in relation to a Child visa application, Aity did not meet the health requirements and the cost to the Australian community if the visa were to be granted was greater than $2.8 million dollars, a very significant sum. The Tribunal takes into account that the applicant's family may have the means to provide care of Aity in future, however, in the Tribunal's view this is not a sufficient reason not to cancel the visa.
It then went on in para.63 of its reasons to express its conclusion:
While the Tribunal places weight on the applicant's support for her family and strong ties to her daughters and grandchildren which is commendable, on balance, this is outweighed by the non-compliance with s.101 of the Act, and the assessment of the Commonwealth Medical Officer in relation to Aity because the applicant would have been well aware of the effect her daughter's dependency and condition would be likely to have on her visa application.
The Tribunal then went on also, in substance, to find that the applicant had been less than completely truthful and frank in her dealings with the Department over time.
The Tribunal’s reasons disclose that no one consideration was treated as being more significant than another, in particular none was treated as more significant than the best interests of the applicant’s grandchildren. In her written submissions the applicant criticised the Tribunal’s statement in the final sentence of para.61 of its reasons that it gave “some weight” to the matters favouring non-cancellation of her visa, the implication being that this meant that those matters, and in particular the best interests of her grandchildren, were not primary considerations. However, to express a view as to the weight to be given to any particular principal consideration, based on the evidence adduced in connection with it, amounts to no more than a step in the proper weighing process explained in Wan’s case and so is not erroneous.
If the Tribunal had failed to treat the best interests of the applicant’s grandchildren as a primary consideration then it would have been necessary to consider the consequences of that failure, and specifically whether the Tribunal should have advised the applicant that it would not so treat her grandchildren’s interests, a matter on which the parties were divided. However, in the circumstances it has not been necessary to undertake that consideration.
Conclusion
I conclude that the Tribunal did not err by failing to treat the best interests of the applicant’s grandchildren as a primary consideration when deciding whether to affirm the delegate’s decision to cancel the applicant’s Resident Return visa.
Consequently, the application will be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 13 April 2018
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