Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1196
•1 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1196
File number(s): SYG 2610 of 2020 Judgment of: JUDGE EGAN Date of judgment: 1 June 2021 Catchwords: MIGRATION – Whether application to add children to a Contributory Parent visa application was valid – children were not dependents – children were not adopted – failure to satisfy criteria for the grant of visas to the children – no functus officio consideration arose – no jurisdictional error established – applications dismissed. Legislation: Migration Act 1958 (Cth), s 474(3).
Migration Regulations 1994 (Cth) rr 1.03, 1.04(1)(c), 1.04(2), 2.08A(1)(f)(i), 2.08A(1)(f)(ii). 2.08A(1)(f)(iii).
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, Art. 3.Cases cited: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 37 Date of last submission/s: 26 May 2021 Date of hearing: 26 May 2021 Place: Brisbane Counsel for the Applicants: Mr Jones Solicitor for the Applicants: VietAust Lawyers Counsel for the Respondent: Mr Bevan Solicitor for the Respondent: Minter Ellison
Table of Corrections 2 June 2021 In paragraph 16 two references to “the Tribunal” have been corrected to show “the Department”. ORDERS
SYG 2610 of 2020 BETWEEN: THI MOT PHAM
First Applicant
VAN SEN TRUONG
Second Applicant
HOANG BAO LINH TRUONG (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
1 JUNE 2021
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 12 March 2021 be dismissed.
2.The First Applicant pay the Respondent’s costs of and incidental to the Application for Review as agreed, or failing agreement, to be taxed pursuant to the provisions of r. 21.11 of the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
On 28 April 2015, the first applicant made application for a Contributory Parent (Migrant) Visa. She did so on her own behalf as the only applicant. She nominated her daughter, namely one Thi Anh Tuyet Truong, as her sponsor. [1]
[1] Court Book (CB) pp. 14 - 34
In her capacity as an Australian citizen sponsor of the first applicant, [2] the first applicant’s daughter lodged a sponsorship Form 40 indicating her preparedness to act as the first applicant’s sponsor. In answer to question No. 13 on the Form 40 sponsorship form, which enquired as to whether any other dependent family members of the applicant were included in her sponsorship, the sponsor responded with the letters “N/A”. [3]
[2] CB p. 61.
[3] CB p. 36.
The sponsor had originally been included as a party to the proceeding as the sixth applicant. At the hearing before the Court, the sixth applicant sponsor was by consent ordered to be removed as a party to the proceeding.
In answer to question No. 23 of the visa application form which enquired as to whether her partner would be migrating with her, the first applicant responded in the negative. [4]
[4] CB pp. 14 – 34 inclusive.
By a letter dated 1 May 2015 directed to the first applicant, the Department acknowledged that the first applicant had lodged a “valid application” for the visa.[5] The visa application summary enclosed with the letter of 1 May 2015 recorded that the first applicant was the “Primary Applicant”. Incongruously with what the first applicant had recorded on her visa application form, the summary also recorded that the second applicant was the other applicant, and that he was the spouse of the first applicant. The first and second applicants were married. For the reasons given later in this judgment, that reference to the second applicant was of no moment.
[5] CB p. 79.
On 7 January 2016, by order of a court in Vietnam, the second applicant was granted “full custody” of the third, fourth and fifth applicants, those being children of the deceased son of the first and second applicants.
By a letter dated 4 February 2016 directed to the Department, Nguyen & Co Solicitors advised that they had been instructed to act on behalf of “the sponsors and applicants”. That statement was erroneous because there was, at that time, only one sponsor. The “Additional Applicant” referred to in that letter included not only the second applicant, but also the third, fourth and fifth applicants, named as they were at the bottom of such letter. [6] It would also appear that Nguyen & Co sent to the Department a Form 1436 entitled ‘Adding an additional applicant after lodgement’ dated 8 December 2015, together with further documentation going to the identities of the applicants who the first applicant wished to be added to her visa application. [7]
[6] CB p. 86.
[7] CB pp. 90 – 94.
To the extent that the letter of 1 May 2015 had recorded the lodgement of a “valid application”, that application was the one made by the first applicant on 28 April 2015.
On 9 February 2016, the first applicant was sent a letter by the Department. [8] The letter recorded the same “Application ID” details and “File Number” details as were recorded on the 1 May 2015 letter sent by the Department to the first applicant. Under those details in the 9 February 2016 letter there appeared exactly the same heading as was the heading in the 1 May 2015 letter from the Department to the first applicant, namely:
“Acknowledgement of valid application for a CONTRIBUTORY PARENT (MIGRANT) (Class CA) CONTRBUTORY PARENT (Subclass 143) visa.”
[8] CB pp. 134 – 137.
The letter’s next paragraph was exactly the same as the first paragraph, under the same heading, as the letter of 1 May 2015 sent by the Department to the first applicant, and was as follows:
“This letter refers to your application for a CONTRIBUTORY PARENT (MIGRANT) (Class CA) visa, which was validly lodged at Perth Offshore Centre on 28 April 2015. You indicated on your application that you wish to be considered for the grant of a CONTRIBUTORY PARENT (Subclass 143) visa.”
(under lining added)It is significant that to the extent that in the 9 February 2016 letter the Department acknowledged that a visa application which had been lodged was valid, the only application referred to, in that regard, was the visa application made by the first applicant on 28 April 2015. Had the Department wished to acknowledge as valid the lodgement of the application to add additional applicants sent to the Department as an enclosure to the Nguyen & Co letter to the Department of 4 February 2016, one would have expected that the Department would have done so in its 9 February 2016 letter. It did not do so. There is otherwise no documentary material before the Court which suggested that there was any such acknowledgement or concession. The latter is significant because the first applicant has proceeded on the erroneous basis that the letter of 9 February 2016 “…acknowledges the lodgement of a valid application for the visa, now including the Third to Fifth Applicants” when that was not the case.
The fact that the Third, Fourth and Fifth applicants were identified as being “Other Applicants” in the Visa Application Summary attached to the letter of 9 February 2016 was not an acknowledgement that the application for their inclusion as applicants was valid. The Court infers that it was an administrative recognition by the Department that an application for their inclusion as applicants had been lodged. Such recognition was not otherwise determinative of the validity of the application for their inclusion as applicants. The letter, in its terms, made it clear that no decision had been made concerning the application for the visa when it said, under the heading “Processing your Application”, as follows:
“You will be contacted by your case officer about any additional information that may be required in order to make a decision on your application.”
At no time after the sending of the letter of 9 February 2016, did the Department acknowledge or concede that the lodgement of the Form 1436 seeking to add the Third, Fourth and Fifth applicants as additional applicants was a valid visa application. Indeed, email correspondence sent by the Department to the email address for Nguyen & Co Solicitors on 5 December 2017 [9] indicated that the Department was at that time still at an early stage of the processing of the visa application. The letter requested documentation required for assessment by the Department, and relevantly said as follows:
“Your parent visa application is not yet assigned for assessment by a case officer.
…
Applicants should be aware that the requesting of these documents and checks does not imply that the primary criteria have been assessed and are met.
… ”
[9] CB pp. 145 – 147.
Between 5 December 2017 and 7 April 2020, there was considerable correspondence between the Department and Nguyen & Co relating to those primary criteria matters which had to be satisfied as pre-conditions to the grant of the visa. In a letter dated 11 May 2018 sent by the Department to Nguyen & Co, it was indicated by the Department that “there are a number of outstanding requirements to be met before further steps can be taken to decide this application. These outstanding requirements are set out in the attached list.” [10]
[10] CB pp. 207 – 208.
The list attached to the 11 May 2018 letter asked for the completion of a Form 1129 – namely a “Consent to grant an Australian visa to a child under the age of 18 years”, and included the following: [11]
[11] CB pp. 211 and 216 – 217.
“Provide a scanned certified copy of Court document from mother of the three grand-children included in this application, giving them permission to migrate to Australia.
3. Truong, Anh Lam (Born xx xxxx 2008)
4. Truong, Hoang Bao Tran (Born xx xxxx 2011)
5. Truong, Hoang Bao Linh (Born xx xxxx 2011)”
(months and dates of births omitted)
By an email sent to Nguyen & Co Solicitors by the Department on 28 February 2019, when commenting on the requests made in the 11 May 2018 letter, the Department said:
“To date, very little of the documentation has been provided. … To date, the following things still remain outstanding: …” [12] One of the outstanding matters was the provision of a Form 1229 consent signed by the mother of the children. There was evidence before the Department that the mother of the children had consented to the two youngest children migrating to Australia from Vietnam, but the Form 1129, as submitted, did not indicate that consent was given in respect of the older remaining child. [13] There was evidence, however, that the mother of the children had consented in 2016 to the second applicant being granted full custody of such children. [14] An Order of the People’s Court District 1 Ho Chi Minh city dated 7 January 2016 recording such custody order was before the Department. [15] The omission in the Form 1229 of the mother’s consent in respect of the older child did not appear to have been remedied as at 7 April 2020. To that extent, an essential pre-condition for the grant of the visa to the older child had not been met.
[12] CB p. 223.
[13] CB pp. 295 – 296.
[14] Affidavit of Commitment of mother dated 20 May 2020 at CB pp. 418 – 419.
[15] CB pp. 300 – 302.
On 7 April 2020, the Department notified the applicants’ new migration agent by email that the application to include the three (3) children in the first applicant’s visa application was invalid, and therefore unable to be considered. [16] Reference was made by the Department in such email to r. 2.08A of the Migration Regulations 1994 (Cth) (‘the Regulations’) which relevantly provided as follows:
[16] CB pp. 400 – 402.
“R. 2.08A – Addition of certain applicants to certain applications for permanent visas
(1) If:
(a) a person (in this regulation called the original applicant ) applies for a permanent visa of a class for which Schedule 1 , including Schedule 1 as it applies in relation to a particular class of visa, permits combined applications; and
(b) after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have:
(i) the spouse or de facto partner; or
(ii) a dependent child;
of the original applicant (the additional applicant ) added to the original applicant's application; and
(c) the request includes a statement that the original applicant claims that the additional applicant is:
(i) the spouse or de facto partner; or
(ii) a dependent child;
as the case requires, of the original applicant; and
(d) the additional applicant charge (if any) has been paid in relation to the additional applicant; and
(da) at the time when:
(i) the Minister has received the request; and
(ii) the additional applicant charge (if any) has been paid;
the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class;
then:
(e) the additional applicant is taken to have applied for a visa of the same class; and
(f) the application of the additional applicant
(i) is taken to have been made on the later of:
(A) the Minister receiving the request; and
(B) the additional applicant charge (if any) being paid; and
(ii) is taken to be combined with the application of the original applicant; and
(iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant.
(2) Despite any provision in Schedule 2, the additional applicant:
(a) must be, at the time when the application is taken to be made under subparagraph (1)(f)(i), a person who satisfies the applicable secondary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable secondary criteria to be satisfied at the time of decision.
(2A) Subregulations (1) and (2) do not apply to an applicant for a Skilled (Residence) (Class VB) visa.
Note 1: Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.
Note 2: Past amendments of these Regulations may have amended or repealed provisions of Schedule 1 but included transitional provisions by which a former version of Schedule 1 continues to apply in specified cases.”
By r. 2.08A(1)(f)(i) of the Regulations, it is to be noted that the application to add additional applicants is taken to have been made on the later of the date on which the Minister received the request, and the date on which the additional applicant charge was paid. Regulation 2.08A(1)(f)(ii) provided that once made, an application to add an additional applicant “ … is taken to be combined with the application of the original applicant”. Regulation 2.08A(1)(f)(iii) provided that such an application “ … is taken to have been made at the same place as, and on the same form as, the application of the original applicant”. Had the legislature intended that the making of an application for the addition of applicants to a visa application be taken to have been made at the time of the making of the original visa application, it would have so provided. It did not do so.
The definition of “dependent child” in r. 1.03 of the Regulations was as follows:
“R. 103 - Definitions
“dependent child”, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person;
(ii) is incapacitated for work due to the total or partial loss of the child’s step-child’s bodily or mental functions.”
By a further email sent by the Department to the applicants’ migration agent on 20 April 2020, the reasons for the Department deciding that the application for inclusion of the three (3) children as applicants was invalid were set out as follows: [17]
[17] CB pp. 412 - 413
“Dear Dat Ngo
Thank you for your email.
I have read the sponsor’s letter and my response is as follows;
I understand the family’s concern for the welfare of the children and their desire for the children to be re‐united with their Australian family in Australia.
During the processing of the visa application it came to the Department’s attention under Regulation 2.08A to the Migration Regulations, after the valid lodgement of a Parent visa application, the Primary applicant may add certain member of her/his family to the application as migrating dependents.
On 9 February 2016 the Primary applicant, Thi Mot PHAM lodged an application to include her spouse and 3 grandchildren as migrating dependents. The Department deemed this action to be valid and responded in writing that the spouse and 3 grandchildren had lodged valid applications. Unfortunately, this is was an administrative error on the Department’s part because under Regulation 2.08A only a primary applicant’s spouse or dependent children may be added to the application, after a valid application is lodged. In this case, the primary applicant’s spouse lodged a valid application, however the grandchildren did not because they are the primary applicant’s grand children and not dependent children. The children and primary applicant should have been notified at lodgement (9 February 2016), that their request to be included as migrating dependents is invalid.
Regulation 1.03 defines a dependent child of a person as a biological, adopted, or step‐child. Evidence provided with the application demonstrates that the children are the primary applicant’s grandchildren. Whilst the Vietnamese court order gave guardianship to the primary applicant (the grand parent) , ordering that the grandparent has daily living and welfare controls for the children, it is not an adoption order, giving full parental rights to the grand parent and severing ties with the parent (mother in this case).
Under Vietnamese parental rights laws and based on the court order, the grand parent is the guardian of the children, however their mother is still the parent with parental rights. The grand parent is not taken to be a ‘parent’ of the child, and hence does not meet the criteria set under Regulation 2.08A. The grandchildren may be added to the application, if there is an adoption order, issued by the People Courts in Vietnam, giving full parental rights to the primary applicant as the adoptive parent and also giving permission for the primary applicant to remove the children from Vietnam and be granted an Australian permanent residency visa. Without a Vietnamese Formal Adoption order, the grandparent as the primary applicant is prevented under Regulation 2.08A to include the grand children as migrating dependents.
If the primary applicant formally adopts the children, she may include the children as migrating dependents (prior to the finalisation of the Parent visa). Once granted, if the children are not included, the primary applicant may consider either an adoption or child visa for the children (if she has formally adopted the children).
I sincerely hope my response answers the sponsor’s questions.
Kind regards”
(underlining added)Grounds of Review
The applicants filed an Originating Application for Review on 18 November 2020. Before the Court, the applicants relied upon an Amended Application for Review, the grounds of which were as follows:
“1. The Minister made a jurisdictional error in disregarding the earlier determination that the application regarding the Third to Fifth Applicants (application) was valid and in concluding that the application was invalid.
a. The First Applicant applied on 4 February 2016 to add the Third to Fifth Applicants to the application for the visa under reg 2.08A of the Migration Regulations 1994 (Cth) (Regulations);
b. The Minister determined on 9 February 2016 that the Third to Fifth Applicants had been validly added to the application for the visa (first determination):
c.The Minister determined on 7 April and 20 April 2020 that the Third to Fifth Applicants had not been validly added to the application for the visa (second determination);
d. The first determination was binding and required consideration of the Third to Fifth Applicants as applicants for the visa unless it could be disregarded for jurisdictional error: Minister forImmigration v Bhardwai (2002) 209 CLR 597 at [53] per Gaudron and Gummow JJ;
e. The Minister, when making the second determination, did not address whether the first determination could be disregarded for jurisdictional error;
f. Even if the Minister had a basis for concluding that the first determination was invalid when made, the Minister was nonetheless required to consider whether, at the time of the second determination, the Third to Fifth Applicants should be added under reg 2.08A of the Regulations: Minister for Immigration v Chan (2008) 172 FCR 193 at [14] per Marshall J and at [52] per Lander J;
g. For the purpose of addressing the question described at paragraph {f), the Minister was required to ask whether there were arrangements in the nature of adoption under reg 1.04(2) of the Regulations;
h. For the purpose of addressing the question described at paragraph (g), the Minister was required to seek information where it would be legally unreasonable to refrain from doing so, particularly in the sense of there being no evident and intelligible justification for refraining from doing so: ABTJ 7 v Minister for Immigration [2020] HCA 34 at (19]-[20] per Kiefel CJ, Bell, Gageler and Keane JJ).
i. In ascertaining legal unreasonableness in the context of paragraph (h), it was relevant that it would be in the best interests of the child in the context of Art 3 (1) of the Convention on the Rights of the Child for the Third to Fifth Applicants to be added to the application for this visa: Premalal v Minister for Immigration (1993) 41 FCR 117 at 138; R v Ministry of Defence; Ex parte Smith [1996] OB 517.
j. There is evidence that, had the proper questions been asked and relevant inquiries, the Minister might have left the first determination undisturbed or, alternatively, would have made the second determination in favour of the Third to Fifth Applicants.”
The applicants reduced their argument to three (3) propositions, namely:
“(a) The first determination had the effect that the Minister was functus officio with respect to the validity of the combined application including the Third to Fifth Applicants, unless the first determination was infected by jurisdictional error. There was no demonstration of jurisdictional error in the first determination by the officer of the Department who purported to make the second determination (first proposition);
(b) Even if the officer had established jurisdictional error in the first determination, the officer was nonetheless required to consider whether, at the time of the second determination, there was any basis under reg 2.08A of the Regulations for the Third to Fifth Applicants to be added to the original application. In particular, the officer was required to consider whether there were arrangements in the nature of adoption under reg 1.04(2) (second proposition); and
(c) For the purpose of considering arrangements in the nature of adoption under reg 1.04(2) of the Regulations, the officer was required to obtain information where it would be legally unreasonable to refrain from doing so. The legal unreasonableness of refraining from doing so was magnified in the present case by the fact that it would be in the best interests of the child under Art 3(1) of the Convention on the Rights of the Child (CROC) for the Third to Fifth Applicants to be added to the application of the First and Second Applicants for the visa. Had the officer obtained the information now in evidence before the Court, she might have concluded that there were arrangements in the nature of adoption under reg 1.04(2) of the Regulations (third proposition).” [18]
[18] Paragraph 20 of applicants’ submissions filed on 30 March 2021
As to the first proposition, the Court does not accept the premise upon which such proposition was advanced – namely that by letter dated 9 February 2016, the Department had acknowleged the lodgement of a valid application for the visa “now including the Third to Fifth Applicants”. As earlier referred to, the letter of 9 February 2016 merely confirmed that the original visa application made by the first applicant and lodged on 28 April 2015 was a “valid application”. Neither the Migration Act 1958 (Cth) (‘the Act) nor the Regulations provided that the application for additional applicants was taken to have been made on the date on which the original application had been lodged.
The Court finds that the fact that the application for the addition of the three children was combined with the application of the original applicant did not, in the circumstances, mean that the Department had acknowledged or confirmed that such application for their addition as applicants was valid. There was no evidence that it had. The submissions made on behalf of the applicants to the effect that the Department had acknowledged the validity of the applications made in respect of the three children were accordingly misconceived. No question of the Department being functus officio arose.
The concession made by the Departmental officer named ‘Orlanda’ in the letter from the Department to the migration agent dated 20 April 2020 – that there had been an error in the acknowledgement of validity of the children’s applications in the 9 February 2016 letter – was likewise misconceived for the same reasons as last referred to. The person named ‘Orlanda’ had not written the letter of 9 February 2016. There was no ‘first decision’ made in respect of the children’s applications on 9 February 2016. Section 474(3) of the Act did not apply.
This was not a case of the type considered in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. This case did not involve the Department having made a decision involving jurisdictional error or involving the failure to exercise jurisdiction. The Department here had simply engaged in the administrative process of considering whether or not all aspects of the first applicant’s combined visa application was compliant or not. Though the Department ultimately determined that the applications of the first applicant and the second applicant ought to be granted, it determined that because the children were not dependent children, or ‘adopted’ children, for the purposes of the Act, the application for their addition was invalid and unable to be considered. The Department did not err in so finding, for the underlined reasons as set out in its 20 April 2020 letter directed to the applicants’ migration agent, and as set out above. There is no merit to the first proposition.
As to the second proposition, it was submitted that no consideration was given to “arrangements in the nature of adoption” in circumstances where the second applicant had been granted custody of the children, and where the first and second applicants were said to be the guardians of such children. There is no merit to such claim.
Regulation 1.04 of the Regulations relevantly provided as follows:
“R. 1.04 – Adoption
(1) A person (in this regulation called the adoptee ) is taken to have been adopted by a person (in this regulation called the adopter ) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
(a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
(b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or
(c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.
(2) For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b) the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
(c) the Minister is satisfied that:
(i) formal adoption of the kind referred to in paragraph (1)(b):
(A) was not available under the law of the place where the arrangements were made; or
(B) was not reasonably practicable in the circumstances; and
(ii) the arrangements have not been contrived to circumvent Australian migration requirements.”
It was contended on behalf of the applicants that the arrangements entered into outside Australia involving the children ought to be taken to be in the nature of adoption under r. 1.04(1)(c) of the Regulations. That satisfaction could only be established if each of the three requirements of r. 1.04(2) had been satisfied. Even if (a) and (b) had been satisfied, there was no satisfactory evidence before the Department which would have enabled it to be satisfied as to (c). A failure to satisfy each of the conditions imposed under r. 1.04 of the Regulations was fatal to any claim made that the children ought to have been considered as having been adopted.
The third proposition is a claim that it was legally unreasonable for the Department not to have had regard to Article 3 of the Convention on the Rights of the Child which relevantly provided as follows:
“Article 3
1. 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.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”
There is no merit to such claim. In Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 at [20] – [28] it was said by Dowsett, Pagone and Burley JJ as follows:
“[20] The appellants contend that the purpose of subparagraph (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 & 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.
[21] We reject these submissions for the following reasons.
[22] 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) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration & Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.”
[23] 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 & 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 & 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 Commonwealth (1945) 70 CLR60 at 68-69, 77, and 80-81; Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs & 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.
[24] Secondly, the fact that the Tribunal chose to respond to the appellants’ submissions as to the relevance of the Convention, and to consider whether the matters submitted concerning Jazzveer provided “compelling circumstances” did not make the consideration or application of the Convention a mandatory consideration; Snedden at [152].
[25] Thirdly, by taking account of the Convention, the Tribunal would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the obligations. As Tracey J observed in AB v Minister for Immigration & Citizenship at [27]:
Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government & Ethnic Affairs (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.
[26] Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]-[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
[27] Accordingly, in our view the Tribunal did not fall into error on the basis asserted in grounds 1(i) — (vi) of the Notice of Appeal, and the FCCA did not fall into error in concluding that the application should be dismissed.
[28] In ground 1(vii) the appellants contend that if the Convention was not required to be applied, then the Tribunal failed to afford procedural fairness to them by failing to give notice that it proposed to make a decision which did not accord with the principle that the best interests of the children would be a primary consideration. However, it is apparent that it was the appellants, by their legal representatives, who themselves prosecuted the applicability of the Convention, and the appellants who made submissions on the subject. There can hardly be an absence of procedural fairness in those circumstances. Furthermore, at [27] the Tribunal noted that it had indicated to the appellants that in its view their circumstances were excluded from consideration under PIC4020. In any event we have found that there was no obligation arising under the Convention. There is no lack of procedural fairness in these circumstances. Accordingly, this ground is not made out.”
It was not legally unreasonable for the Department not to consider Article 3 of the Convention.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Department. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Department be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicants have failed to establish jurisdictional error on the part of the Minister.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 1 June 2021
SCHEDULE OF PARTIES
SYG 2610 of 2020 Applicants
Fourth Applicant:
HOANG BAO TRAN TRUONG
Fifth Applicant:
ANH LAM TRUONG
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