Vaitaiki, Tevita Musie v Minister for Immigration and Multicultural Affairs
[1997] FCA 651
•20 June 1997
FEDERAL COURT OF AUSTRALIA
Treaties - Convention ratified by Executive but not incorporated by statute in Australian municipal law - status in domestic law - whether capable of giving rise to a legitimate expectation that application would be dealt with in accordance with the Convention.
Immigration - deportation where applicant had a considerable number of convictions - decision-maker to give a primary consideration to the best interests of a child - meaning of “a primary consideration” - balance of considerations - whether court can undertake merits review in an application for judicial review - procedural fairness - requirement that where a decision-maker proposes to make a decision inconsistent with the legitimate expectation, then the person affected must be afforded procedural fairness - unreasonableness
United Nations Convention on the Rights of the Child - Article 3
Migration Act 1958 - ss 200 and 201
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 - distinguished
R v Secretary of State for the Home Department, Ex parte: Venables [1997] 3 WLR 23 - distinguished
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - applied
Steven Wing-Yuen Sui v Minister for Immigration and Ethnic Affairs, Full Federal Court of Australia (Wilcox, Lindgren and Tamberlin JJ), 27 November 1996, unreported - applied
Patel v The Minister for Immigration [1997] 1 NZLR 252 - considered
TEVITA MUSIE VAITAIKI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NG 930 of 1995
JUDGE: BEAUMONT J
PLACE: SYDNEY
DATED: 20 JUNE 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 930 of 1995 ) GENERAL DIVISION )
BETWEEN: TEVITA MUSIE VAITAIKI
ApplicantAND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 20 JUNE 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed, with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 930 of 1995 ) GENERAL DIVISION )
BETWEEN: TEVITA MUSIE VAITAIKI
ApplicantAND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 20 JUNE 1997
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”), affirming a deportation decision made under the former s 55 of the Migration Act 1958 (“the Act”). Section 55 is now enacted as ss 200 and 201 of the Act. By s 200 it is provided as follows:
“Deportation of certain non-citizens
200. The Minister may order the deportation of a non-citizen to whom this Division applies.”
By s 201 it is provided as follows:
“Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes
201. Where:
(a)a person who is a non-citizen has either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
(ii)was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A)for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B)for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.”
BACKGROUND
In order to understand the questions that arise in the appeal, it will be necessary to describe the background of the matter. In particular, it will be necessary to refer in some detail to the relevant Government Policy Statement at the time, namely the “Policy Statement by the Minister for Immigration, Local Government and Ethnic Affairs : Australia’s Criminal Deportation Policy” (“the Statement”), and to the reasons for decision of two decisions of the Tribunal in the matter.
The deportation order made by the Minister's delegate was in these terms:
“DEPORTATION ORDER
WHEREAS TEVITA MUSIE VAITAIKI is a non-citizen
AND WHEREAS the said TEVITA MUSIE VAITAIKI was convicted at Sydney District Court on the twenty ninth day of April 1992 of offences, namely Sexual Intercourse without Consent and Threaten to Inflict Actual Bodily Harm with Intent to have Sexual Intercourse for which he was sentenced to a fixed term of two years imprisonment on the first charge and a minimum term of three years and three months imprisonment with an additional twelve months on the second charge and which offences he committed on the third day of December 1988
AND WHEREAS at the time of the commission of the said offences the said TEVITA MUSIE VAITAIKI was not an Australian citizen and had been present in Australia as a permanent resident for less than 10 years
NOW I, DENNIS JAMES RICHARDSON, a Delegate of the Minister of State responsible for administering the Migration Act 1958, DO HEREBY ORDER, in pursuance of the power conferred in me by Section 55 of the Migration Act 1958, that the said TEVITA MUSIE VAITAIKI be deported from Australia.”
In the Statement the following, inter alia, was stated:
“6.It should be recognised that the decision to deport stems from the Minister’s responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour or to expel from Australia those non-citizens who have seriously abused the privilege of residence accorded to them by the Australian community.
7.Consistent with Government policy, most weight should be given to the need to protect Australian society. Conversely, less weight should be given to the views of the offender and that person’s family and associates, and to the possibility of adverse consequences for them of deportation.
8.The Government recognises Australia’s obligations under international law, particularly to the International Covenant on Civil and Political Rights. However, the Government is mindful of the need to balance a number of very important factors, especially:
· the need for community protection against criminal behaviour;
· the requirement to take into consideration the legitimate human rights of an individual;
· the need to protect the rights of other persons, including the family of the person concerned; and
· the need to avoid discrimination when making deportation decisions.”
In the Statement's Guidelines for deportation, the following, inter alia, appears:
“Guidelines for deportation
9.The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family.
10.The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences.
11.Deportation of a person convicted of crime may be appropriate when a person:
·constitutes a threat because there is a risk that he/she will commit further offences if allowed to remain; or
·has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or
·has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia.
12.Examples of serious offences which may render non-Australian citizens liable to deportation include:
· ....
· serious sexual assaults whether or not accompanied by other violence (especially where there has been more than one sexual offence);
· ....”.
Reference should also be made to para 13 of the Statement as follows:
“13.Social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, can be discounted according to circumstances (e.g. marriage or the immigration to Australia of further family members).”
Paragraph 19 of the Statement is in these terms:
“19.The most important broad criteria on which judgments will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:
· the nature of the offence as outlined in paragraph 12 and the length of sentence imposed by the court;
· the person’s previous general record of conduct. The total criminal history of a person should be given significant weight in making a decision to deport. A person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning will be given serious weight in consideration of his case. A person with several previous convictions against Australian society should usually be judged in the light of that past behaviour;
· the risk of further offences;
· the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably [be] expected to make;
· the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia.
· the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected;
· any unreasonable hardship the offender would suffer;
· ties with other countries;
· the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government;
· the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons.
This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.”
THE FIRST TRIBUNAL DECISION
The applicant applied to the Tribunal in February 1994 to review the deportation decision. In its first decision, on 30 September 1994, the Tribunal, constituted by Deputy President Mr B. J. McMahon, decided to affirm the deportation decision.
In its reasons for decision the Tribunal referred to the applicant's immigration history to the following effect:
“2.The applicant was born on 20 September 1955 in Tonga. [He] remains a citizen of that country. His mother and 4 of his sisters live in Sydney, and are permanent residents.... The applicant [has] made many attempts to enter and re-enter Australia....
3.He first arrived in [Australia] on 15 December 1976 as a visitor with a temporary entry permit for one month, but over stayed. [He] was deported on 1 April 1978. Subsequently, he re-entered the country in June 1978 via New Zealand, using an assumed name. In 1980 he applied under the Regularisation of Status Program (ROSP). In 1981, he married Pauline Lange, who had been born in Tonga but was then (and is now) an Australian citizen. [The applicant] was granted a re-entry visa pending the outcome of his ROSP application. This was refused in August 1983. At the time, the applicant was told of his eligibility for what was then referred to as ‘change of status’ but which has since been referred to as ‘permanent residency’.
4.The applicant applied for change of status in September 1983 and a further re-entry permit was issued, valid until 15 August 1984. The change of status was approved on 24 October 1984. In the meantime [the applicant had] made numerous trips outside Australia to Fiji and Tonga in connection with the business he was then engaged in as a travel agent.
5.On 14 June 1986 he arrived [in Australia] without a resident return visa. He untruthfully told [immigration officials] that he intended to travel to the United States of America 2 days later. On the basis of that statement he was granted a 2-day temporary entry permit. He did not depart for the United States of America as he had said he would and became, therefore, an illegal entrant on 16 June 1986. His whereabouts did not become known to the Department until 24 March 1987 when he was again advised of his illegal status and of the necessity to regularise it.
6.[The applicant] re-applied for change of status on 17 July 1987. [This] application was approved on 23 March 1988.
On 3 December 1988 [the applicant] committed the crimes for which he was sentenced to terms of imprisonment exceeding 12 months, thus leading to the [making of the deportation order]. Prior to the commission of these crimes [the applicant] had had only one year and 11 months of lawful permanent residence, although he had illegally lived in the country for much longer.”
The Tribunal then described the applicant's criminal record in this country as follows:
“8.While he has lived in Australia, he has accumulated a considerable number of convictions. Most of these can be related to his alcohol abuse to which reference will later be made but other convictions, in retrospect, appear to stand independently and appear to be relevant in the present context. Many of the offences related to driving with a higher range of prescribed concentration of alcohol. His driving licence has been suspended on a number of occasions. A number of the convictions relate to driving without a licence. Although in his affidavit the applicant said that the first time he went to gaol was in 1991, this is not correct if one has regard to the number of times he has been sentenced to periodic detentions. For example on 2 June 1980, at Burwood Court, he was sentenced to 6 months weekend detention at Silverwater gaol. On 27 October 1986, he was sentenced to 9 months periodic detention at Silverwater and on 14 October 1986 on assault charges, he was sentenced to periodic detention for 14 months.
9.In addition to the assault charges to which I have just referred, he was also convicted of malicious wounding on 28 May 1987. Both of these convictions appear to relate to serious assaults on his then wife.
10.In relation to his attitude to authority, offences for which he has been convicted include failing to stop after an accident, resisting arrest, failing to appear, stating a false name and place of abode on several occasions and fraudulently using a licence.
11.On the whole, he appears to have received relatively lenient sentences either at first instance or on appeal. Bonds were given on a number of occasions notwithstanding apparent breaches of previous bonds.
12.On 3 December 1988 he had sexual intercourse with a woman against her consent, consequent upon threatening her with a knife. He was not arrested for this offence until 1990 when he was apprehended for some other reason and it became known from the police computer that he was wanted in connection with the sexual offence. Although the applicant said in his affidavit that he had never actively ‘hid from police or tried to avoid them’, he was aware that the police were seeking him. He had received advice from a solicitor that he was under no obligation to give himself up to the police. Rather than attend at a police station with the solicitor, he chose not to approach the police until his contact with them was inevitable.
13.He was charged with having sexual intercourse without consent and with having threatened to inflict actual bodily harm with intent to have sexual intercourse and pleaded not guilty. He said again that this was based on legal advice. The jury clearly did not accept the absence of guilt and returned verdicts of guilty in respect of both charges.”
Having next described the remarks of Kinchington J on sentence made on 29 May 1992, and a statement from the victim, the Tribunal said:
“18.In a review of this nature, it is necessary to consider the nature of the crime the sentence for which gives rise to the jurisdiction. This is required by paragraph 19 of the Minister’s policy statement. In my view it is legitimate to consider the effect of the crime on the victim, as an element in considering the nature of the offence. Serious sexual assaults are identified in paragraph 12 of the Minister’s policy statement as being serious offences which may render non Australian citizens liable to deportation. The effect of the applicant’s sexual assault and the possibility (which I will discuss) of its repetition, both contribute to make the 2 crimes with which the applicant was charged, serious sexual assaults of a high order. From the point of view of protection of the Australian community from the possibility of further criminal behaviour, and from the point of view of expelling from Australia those non citizens who have seriously abused the privilege of residence accorded them by the Australian community (paragraph 6 of the Minister’s policy statement) the gravity of both crimes should be put at [an] even higher level than that referred to by Judge Kinchington above. His Honour was concerned with the seriousness of the offences for sentencing purposes. I am concerned with their seriousness for different purposes.”
In his remarks on sentence, Kinchington J had said that, since about 1984, the applicant had experienced a problem with alcohol. The Tribunal said that the applicant's case before the Tribunal was that he had “given up” alcohol and that he had attended Bible study groups in prison on a regular basis. The Tribunal said:
“20.He began attending the Tokaikolo Christian Fellowship Church regularly in 1980. He had recently met Pauline Lange through church meetings held by his sister. They subsequently married on 25 August 1981 and have 3 children born respectively in 1982, 1983 and 1985.
21.The applicant acknowledges that he began drinking alcohol heavily around 1983 after his father’s death ‘placed pressure and responsibility on me to provide for and take care of my mother and sisters in additional to my responsibilities towards Pauline, our children and my business responsibilities’. By 1985 he acknowledges that he was a heavy drinker and that he ‘had an alcohol problem’. He was drinking almost everyday and the alcohol was beginning to affect his behaviour. He agreed in his affidavit that when he was drunk he was aggressive to Ms Lange but said that he was not ever aggressive to his children.
22.There were a number of separations between the applicant and Ms Lange until they went their separate ways in 1986. They were subsequently divorced. In 1985 the applicant began seeing Janette Katoa, a woman who had been born in Tonga but was then (and is now) an Australian citizen. The relationship developed and they began living together. Three children have been born of this union in 1987, 1989 and 1992. The applicant had been sentenced to 4 months imprisonment for assault in 1991. After he was released from prison until he went back to gaol in 1992 on the present charges, Ms Lange’s children lived with the applicant and Ms Katoa. The 6 children have always got on well together, even though the applicant continued to abuse alcohol and was separated on a number of occasions from Ms Katoa.”
The Tribunal was prepared to accept that the applicant had stopped drinking by 1991 at the latest.
The Tribunal then described the relationship between the applicant and Ms Lange and their children as follows:
“28.Evidence was given by way of affidavit by his former wife, Pauline Lange, and by his present de facto wife, Janette Katoa. Ms Lange described the problems with their marriage and the effect of the applicant’s heavy drinking on that relationship. She said that when he was sober he was a good father and a good husband but when he was drunk he could be aggressive toward her. They finally separated in 1985. Between that time and when he went to prison in 1992 she continued to see him mainly because of the children who she said have always liked him. Ms Lange has custody of the 3 children of that marriage and the applicant is entitled to access.
29.Since the applicant has been in gaol, Ms Lange has visited him regularly with the children, first at Long Bay gaol and then at Broken Hill, Silverwater and John Moroney Correctional Centre at Windsor. When the applicant was moved to Broken Hill, Ms Lange and the children went there for a 2-week period so that they could see him every day. Their visits to him at the John Moroney Correctional Centre are far less frequent because of transport difficulties. They converse regularly on the telephone and the applicant is involved in the daily lives of his children. Ms Lange said that if the deportation order is carried out, she and the children would stay because she has a good job here and all of her family are settled in Australia. She believes however that it would be hard on the children. She would not be able to afford to go to Tonga for visits very often or to send them across. Ms Lange affirmed what the applicant had told her, and affirmed her belief that the changes in Mr Vaitaiki are real.”
The applicant’s relationship with Ms Katoa and her children was described by the Tribunal as follows:
“30.Ms Katoa told of their relationship and of the temporary separations she has endured because of the applicant’s drinking. She too was under the impression that the beginning of his period of abstinence was after he was released from gaol in May 1991. She told of their life between that time and when he was again sentenced on 29 May 1992 and the opportunities for alcohol that were resisted during that period. She also confirmed his attempts at rehabilitation with the William Booth Institute. In her opinion there has been ‘a very positive change in David’s character’. In her view, the cause of that change has been his abstinence from alcohol and the positive influence of the church.
31.She too moved to Broken Hill when he was transferred there so that the other 3 children could see their father regularly. When he was at Silverwater gaol they visited him once a week. They too found it difficult to see him at John Moroney Correctional Centre because of transport problems. The children, she said, become excited about going to visit the applicant and when they are with him they always enjoy themselves. Ms Katoa also observed changes in the demeanour of the applicant. She has found him quieter and more reflective.
32.If the deportation order is carried out, Ms Katoa said that she would return to Tonga with the 3 children because she believes it is important for them to be near the applicant. She said that it is difficult to obtain a job in Tonga and that educational facilities are probably not as good as they are in Australia but in her view those factors are outweighed by the need of the children to be near their father. If she did return to Tonga, however, she would miss her own family who live in and around Sydney. She and the applicant propose to be married when he is released from prison.”
The Tribunal then referred to the evidence of Mr Taylor, a psychologist. His evidence was that the applicant had made very significant steps towards his own rehabilitation with regard to alcohol abuse and that, in Mr Taylor's opinion, his potential for recidivism was very low. However, the Tribunal went on to refer to what it described as "some disturbing aspects" of Mr Taylor's evidence. In particular, Mr Taylor confirmed that the applicant had "a moderate to high pre-disposition towards alcohol abuse".
The Tribunal thus expressed (at para 34) a feeling that there was a real risk of a lapse if the applicant's emotions and stresses "are not kept within tight controls in the future".
The Tribunal proceeded to address the four principal criteria on which deportation decisions are based under the Statement, being a consideration of the nature of the crimes, the possibility of recidivism, the strength of the applicant's family or social ties in Australia and any question of hardship to the applicant or other people.
The Tribunal concluded that the crimes in question were "so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence". The Tribunal said that this would certainly make deportation appropriate unless this conclusion with respect to the crimes were countervailed by other weightier factors.
Turning to the possibility of recidivism, the Tribunal said that it was also bound to consider the potential effect on the community or potential damage to the community of potential re-offending. The Tribunal noted (at para 37) that, in fact, the applicant had “shown little remorse for the victim, although clearly he feels sorry for himself and for his family".
The Tribunal then referred to the “sincere evidence” of several religious persons who had come forward and offered evidence to support the view that the applicant had reformed, but the Tribunal said (at para 39): "I cannot however dismiss the evidence of Mr Taylor, that the applicant will be an alcoholic for the remainder of his life". The Tribunal said that, in its view, the risk of a lapse may be small but the consequences were such that the existence of such a risk was not, having regard to the other factors already mentioned, acceptable to the community. The Tribunal also noted that the applicant had made a contribution to the Australian community in running Bible study groups within the prison system. However, the Tribunal was of the view that this contribution was also outweighed by the other factors mentioned.
Turning to the family, the Tribunal said:
“41.[The applicant] obviously has strong family ties in Australia. He has 6 children a former wife and a present de facto wife. It is relevant to consider any hardship any or all of them may suffer.
42.Ms Lange has stated that she would not allow the children of the marriage to accompany Mr Vaitaiki to Tonga. Although she herself personally would not suffer hardship if the order were carried out, the children would be deprived of the society and guidance of their father. The 3 youngest children and Ms Katoa would return to Tonga if the deportation order were carried out. The 3 younger children would therefore not be deprived of the society and guidance of their father, nor would Ms Katoa be deprived of his company. The only hardship in that event would be the disparity in economic opportunities for all concerned between those available in Tonga and those available in this country.
43.Although the applicant, his former wife and his present de facto wife have relatives in Australia, there was no evidence that any of them would suffer any hardship if the deportation order were carried out.”
The Tribunal next expressed the opinion that since the applicant had visited Tonga on many occasions since he had first come to Australia, he was familiar with Tonga and, for this reason, the Tribunal did not consider that the applicant would himself suffer any hardship if the deportation order were carried out.
The Tribunal then expressed its conclusions in these terms:
“45.Balancing these factors one against the other, I have come to the conclusion that the very serious nature of his crimes, the consequent unacceptability of even a small risk of re-offending and the short length of lawful permanent residence in this country up to the date of commission of his crimes, outweigh the hardship that I have discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community.
46.The purpose of s 55 deportations is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by the removal of the applicant outweighs the hardship to the person concerned and his family. In the present case, I have concluded that the objects of the deportation policy would be served by the order being carried out and that there are no countervailing reasons on balance, why it should not be carried out. The decision under review is therefore affirmed.”
THE APPEAL FROM THE TRIBUNAL’S FIRST DECISION
The applicant filed in this Court a notice of appeal from the Tribunal's decision. On 10 May 1995 Sackville J made an order by consent that the Tribunal's decision be set aside and that the matter be remitted to the Tribunal for reconsideration according to law. No reasons were given and it appears that no hearing was held to consider the matter. The view having been taken, it seems, by the representatives of the parties that, by reason of the decision in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, given on 7 April 1995, some six months after the Tribunal's decision, a consent order should be made setting aside the Tribunal's decision and remitting the matter to the Tribunal for reconsideration.
THE TRIBUNAL'S SECOND DECISION
By its second decision, given on 14 November 1995, the Tribunal, again constituted by Deputy President Mr B. J. McMahon, re-affirmed the deportation decision. In its reasons, the Tribunal, having explained the circumstances surrounding the making of the consent order by Sackville J on 10 May 1995, said:
“4.That decision was given after a full hearing, extending over 3 days, and was intended by me to be comprehensive in its coverage of all relevant considerations. No judge has pointed to any error of law contained in my reasons for decision, nor (with one exception) have the findings of fact been challenged.
5.The present proceedings, although a rehearing following His Honour’s order, were confined to exploring the one challenged finding of fact and to areas now said to be relevant following the decision in Teoh. As my original reasons for decision can still be regarded as legally intact, I intend to rely upon them, except where they are modified in these reasons and I will not repeat their terms.”
Referring to the provisions of the United Nations Convention on the Rights of the Child (“the Convention”) and to the reasoning of the majority in Teoh, the Tribunal said (at para 6) that the ratification of the Convention by Australia was an adequate foundation for a legitimate expectation, in the absence of statutory or executive indications to the contrary, that administrative decision makers, including the Minister's delegate, would act in conformity with the Convention and treat the best interests of the child as a primary consideration. The Tribunal noted that this legitimate expectation was relevant only to the requirement that where a decision-maker proposes to make a decision inconsistent with the legitimate expectation, then the person affected must be afforded procedural fairness.
The Tribunal went on to say that, in its opinion, such procedural fairness as is contemplated by this legitimate expectation had now been afforded to the applicant and to his children by the re-hearing. It said:
“8..... The principal areas of the Convention giving rise to the legitimate expectation that are relevant in the present circumstances are to be found in paragraphs 1 and 2 of Article 3 in these terms -
‘(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.’
9.The High Court adopted a broad view of the meaning of the phrase ‘actions concerning children’. The reasoning of their Honours would extend the meaning of that phrase to the present proceedings. I am therefore to have regard to the best interests of the applicant’s children and to deal with those interests as a primary consideration for procedural purposes.” (Emphasis added).
The Tribunal then referred to the following passage in the joint judgment of Mason CJ and Deane J in Teoh (at 289):
“One other aspect of Art 3 merits attention. The concluding words of Art 3.1 are ‘the best interests of the child shall be a primary consideration’ (our emphasis). The article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.”
Turning to the position of the children, the Tribunal said:
“14.As I pointed out in my original reasons, the applicant has 6 children. Three of them, aged 13, 12 and 10, are from his marriage to Ms Lange which has since been dissolved. The other 3 children, aged 7, 6 and 3 respectively, are from his present relationship with Ms Katoa. Evidence was given at the previous hearing, and was repeated at this hearing, that if the deportation order were carried out, Ms Katoa would return to Tonga with the applicant and the 3 youngest children. If the best interests of these 3 children, viewed as a primary consideration, are to be served by a continuing close and daily relationship with their father, then the carrying out of the deportation order will best serve those interests. No other competing interests of these 3 children were demonstrated.
15.The 3 older children live with their mother, Ms Lange, and a man with whom she is presently living and who is referred to by the eldest child as uncle. Evidence was given by that child, Mary, who is aged 13. Her evidence was that she had a good relationship with her mother and with uncle. She is attending Macarthur High School where she is doing well. She has friends at school and plays sports. She said in evidence that she would not go to Tonga if the deportation order were carried out. Her preference would be for her father to live in Australia. She said that she would like to see him every day but as she does not live with him she has no firm plans for that eventuality.
16.The 3 older children in fact lived with the applicant and Ms Katoa for some time before he went to prison on the second occasion in 1992. The exact period of time was left in some doubt. According to Ms Katoa, the period was for more than a week. It could have been 3 months or 6 months. She agreed that it was certainly not 2 years or one year, as had been alleged by the applicant and by Mary.
17.The only contact between the 3 older children and their father for the last 3 years has been through visits to various prisons, detailed in my earlier reasons. The applicant was released from prison some 2 weeks before the present hearing. On the 2 intervening weekends, the 3 older children have stayed the weekend with Ms Katoa and her 3 children. Otherwise there has not been a great deal of contact over the years between the 2 families. The balance of reliable evidence suggests that over the past 3 years, the 6 children have had contact only on 4 occasions."
The Tribunal then considered the evidence of the psychologist, Mr Taylor, and said:
“24.In my view, the concerns that I expressed in paragraph 34 of my earlier reasons have not been addressed. As I have previously said I do not question the applicant’s sincerity, his belief in his present improvement, his hope and aspirations for the future, and his general motivation. Nevertheless, the situation has not changed. The emotional lability to which I referred in my earlier reasons is still there. The risk of a lapse is still there. Mr Taylor considered that the applicant had learned to cope with his emotions and to control them. I would simply point out that at the time of the hearing the applicant had been out of prison for only 2 weeks and for the previous 3 years had been in a highly regulated and disciplined environment."
The Tribunal went on to say that, in other respects, its views on the question of hardship had not changed. It noted that no claim had been made that deportation would inflict undue hardship on Ms Lange or on the applicant and that Ms Katoa and her three children would accompany the applicant to Tonga. The Tribunal said that it had already dealt with the possible hardship that might be suffered by the three older children. The Tribunal then said:
“28.None of the material put before me on the rehearing has seriously disturbed the balance of considerations which I arrived at on the previous occasion. Considering all these factors one against the other, I then came to the conclusion that the very serious nature of his crime, the consequent unacceptability of even a small risk of reoffending and the short length of lawful permanent residence in this country up to the date of the commission of his crime, outweighed the hardship that I had discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community. I am still of that view."
THE APPLICANT'S GROUNDS OF APPEAL
The applicant relies on three grounds of appeal stated as follows:
“(1)The decision of the Tribunal was unreasonable in the following respects:
(a)making a finding that the best interests of the three younger children would best be served by returning to Tonga (the first finding), which finding was contrary to the evidence;
(b)the first finding failed to recognise the fundamental human rights of the three younger children to grow up in Australia, their native land;
(c)the first finding lacked reasonable proportion in weighing the impact of deportation (with consequent assumed removal of the three younger children from Australia) against the policy of criminal deportation;
(d)making a finding that the best interests of the three older children would be served by their remaining with their mother while their father, the applicant, was deported to Tonga (the second finding), which finding ignored the evidence as to the value of the father to the three older children; and
(e)making a finding that various factors outweighed the hardship to the six children (the final finding), which finding failed to reflect the requirement of the decision in... Teoh that pursuant to the United Nations Convention on the Rights of the Child (CROC), a decision-maker should give primacy to the best interests of the children, and not bundle up all factors, when weighing up the factors relevant to a decision to deport.
(2)The Tribunal failed to take into account relevant considerations, namely:
(a)in the making of the first finding, that growing up in the land of one’s birth and citizenship is a ‘competing interest’ when ordering deportation on the basis of children accompanying the deportee;
(b)that the ‘competing interest’ of the three younger children to remain in Australia (with their father) went to the best interests of the children which was a primary consideration pursuant to the decision in Teoh and CROC;
(c)in the making of the second decision, that the physical presence of the father was a relevant consideration in weighing the best interests of the children;
(d)that the best interests of the three older children, including their involvement with their father, was a primary consideration pursuant to the decision in Teoh and CROC;
(e)that the ‘balance of considerations’ required that the best interests of the children be given primacy of interest.
(3)The Tribunal erred in law in misconstruing the evidence of Mr J Taylor."
CONCLUSIONS ON THE APPEAL
In my opinion, the submissions advanced on behalf of the applicant attempt to trespass into the “forbidden field of review on the merits”. (See Minister for Immigration and Ethnic Affairs v Guo and Minister for Immigration and Ethnic Affairs v Pan, High Court of Australia, 13 June 1997, unreported, at 19). Further, in my view, no legal or logical error in the approach of the Tribunal has been demonstrated. (See Guo at 20). The Tribunal did ask itself and did decide the real question in this case. (See Guo, ibid).
It is clear, as the Tribunal recognised, that the principle laid down in Teoh is a rule of procedural fairness. But, in my view, procedural fairness was provided in the present case. The history of the whole matter, recited above at some length, makes it clear that the applicant was fully aware, at the time of the second hearing before the Tribunal, that he had to persuade the Tribunal that the position of his children was of such overriding concern that it balanced the scales against the making of a deportation order. The applicant fully availed himself of the opportunity to persuade the Tribunal to his point of view. Irrespective of the outcome, the applicant was, in my opinion, afforded natural justice by the Tribunal.
In this regard, the present case may be contrasted with the circumstances in Teoh itself. Mason CJ and Deane J said in this connection (at 292):
“The question which then arises is whether the delegate made her decision without treating the best interests of the child as a primary consideration. There is nothing to indicate that the Panel or the Minister’s delegate had regard to the terms of the Convention. That would not matter if it appears from the delegate’s acceptance of the Panel’s recommendation that the principle enshrined in Art 3.1 was applied. If that were the case, the legitimate expectation was fulfilled and no case of procedural unfairness could arise.
It can be said that the delegate carried out a balancing exercise in which she considered the plight of Mrs Teoh and the children and recognised that they would face a ‘very difficult and bleak future’ if the respondent were deported. On the other hand, she considered that the respondent had been convicted of very serious offences and this factor outweighed the ‘compassionate claims’. However, it does not seem to us that the Panel or the delegate regarded the best interests of the children as a primary consideration. The last sentence in the recommendation of the Panel reveals that, in conformity with the departmental instructions, it was treating the good character requirement as the primary consideration. The Panel said:
‘The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh’s criminal record.’ (Emphasis added.)
The language of that sentence treats the policy requirement as paramount unless it can be displaced by other considerations. There is no indication that the best interests of the children are to be treated as a primary consideration. A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. The decision necessarily reflected the difference between the principle and the instruction.
That view entails the conclusion that there was a want of procedural fairness." (Emphasis added).
Gaudron J agreed (at 305). Toohey J was of the same view, saying (at 303):
“It is apparent that the delegate did not approach the matter on the footing that the interests of the children were a primary consideration. Instead, she appears to have treated the policy requirement that applicants for the grant of resident status be of good character as the primary consideration. It need hardly be said that the decision-maker might treat the best interests of the children as a primary consideration yet, in all the circumstances, refuse the application for resident status.” (Emphasis added).
These circumstances are far removed from those of the present case, as are the circumstances described in R v Secretary of State for the Home Department, Ex parte: Venables [1997] 3 WLR 23.
As has been noted, in his grounds of appeal, the applicant also seeks to challenge the Tribunal's decision on grounds that it was unreasonable, that it failed to take into account relevant considerations and that it erred in law in misconstruing the evidence of the psychologist, Mr Taylor. Significantly, however, as I followed the applicant's argument, it is not suggested by the applicant that the Tribunal erred in having regard, or in failing to have regard, to the guidelines laid down in the Statement. In my opinion, the balancing exercise contemplated by the Statement was a matter properly to be taken into account by the Tribunal (cf. Venables, above, per Lord Browne-Wilkinson at 50). Moreover, it is apparent from the foregoing recitation of both sets of its reasons for decision, that the Tribunal did have regard to those guidelines and did undertake the balancing exercise there contemplated.
Further, in my view, it could not be said that, in coming to its decision, the Tribunal was, on the face of its reasoning, proceeding in a fashion that was unreasonable in the technical sense, that is, legally irrational. Its conclusion was plainly open on the material before it. Again, as I followed the applicant's argument, it really sought, impermissibly, to turn a review of the reasons of the decision-maker into a reconsideration of the merits of the decision. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and Steven Wing-Yuen Sui v Minister for Immigration and Ethnic Affairs, Federal Court of Australia (Wilcox, Lindgren and Tamberlin JJ), 27 November 1996, unreported).
I specifically reject, as without any foundation, the submission advanced on behalf of the applicant in his counsel's written submission that the Tribunal has been “perfunctory to the point of glibness, with a complete lack of realistic weighing of the children's interests against the decision-maker's obvious principal concern of protection to the Australian community”. To the contrary, as the references I have made to both sets of reasons indicate, it is apparent that the Tribunal gave the whole matter the most careful, detailed and anxious consideration. So far as concerns the three younger children, it is clear from paras 14, 21, 27 and 28 that the Tribunal made two findings: (1) That it would not be inconsistent with, or contrary to, their best interests for their father to be required to return to Tonga because their mother was prepared to return with him and the children would go with both of them; it followed that the children would be living as part of their nuclear family in Tonga, maintaining a close and daily relationship with both their father and their mother. (2) Even if his deportation would not be in their best interests, there were other factors which outweighed this primary interest and which justified his deportation.
I agree with the submission put on behalf of the Minister that it is simply not open to characterise these conclusions as manifestly unreasonable.
As has been seen, the applicant also criticises the Tribunal for not taking into account or weighing the children's interests in being uprooted and forced overseas. But as Senior Counsel for the Minister pointed out in his argument, there are several reasons why this criticism should be rejected. In the first place, it was necessarily implicit in the Tribunal's reasons that this factor was taken into account. The issue of the younger children’s best interests was resolved by the Tribunal making its finding that the preferred course was for the younger children to accompany their father and mother to Tonga, even if this meant leaving Australia. That is to say, the conundrum of whether their best interests would be served by depriving them of their father, or providing them with the opportunity of growing up in their native land, should be resolved by deciding that the best interests of the younger children lay in accompanying their father to Tonga. (In the case of the older children who were no longer living with their father, the Tribunal reached the opposite conclusion for reasons which were equally sound. I will return to this later.)
So far as the position of the younger children is concerned, whilst each case in this area, especially in the context of judicial review, must necessarily depend upon its own circumstances (cf. R v Secretary of State for the Home Department, Ex parte: Launder [1997] 1 WLR 839 per Lord Hope at 867), it is of assistance to note the approach taken in a recent decision of the High Court of New Zealand where reliance was placed upon the provisions of the Convention in a migration context. In Patel v The Minister for Immigration [1997] 1 NZLR 252, Greig J said at 256:
“Neither Tavita’s case nor Puli’uvea’s case set out strict principles which are to be applied as a construction or interpretation of the covenant and conventions in every case. Rather they, with caution, pose some questions while underlining the need to pay attention to international instruments to which New Zealand adheres. They are couched in broad terms and in any event there must be a balancing between what may be seen in the particular case as international obligations and those applying internally in the administration of immigration policies and the statute. Clearly the Minister was directed to a consideration of both the covenant and the convention. The fact of the first child’s situation and, in particular, the second child’s status were clearly brought to his attention.
This is not a case where, in some of the cases including Tavita’s case, there is a serious risk of a disruption of the family. The family as a group can return to Fiji and live there together. That will not on its face alter the status of the second child’s rights and entitlement as a New Zealand citizen. It could not possibly be said, as sometimes appeared to be the tenor of the plaintiffs’ submissions, that in the circumstances and in particular having regard to international obligations, the Minister was obliged to grant the special direction in their favour. Clearly it is a discretion which he must exercise on balance, taking account of the whole of the circumstances. It cannot be said that this was a decision which was unreasonable or that it was one which failed to take account of all the relevant circumstances which were put before the Minister. It was, I think, clearly open to the Minister to come to the conclusion that, at the end of the day and given the lengthy and repeated consideration of their case, on balance the various personal circumstances of a humanitarian nature did not outweigh the other factors which he must take into account in maintaining the proper and even administration of immigration policy." (Emphasis added).
I respectfully agree with his Honour's remarks.
Turning then to the best interests of the older children, as has been seen in its first decision, the Tribunal was aware, and made it clear, that it appreciated that the effect of deportation would be that these children would be deprived of the society and guidance of their father (see para 42 of those reasons). The Tribunal, however, also made findings as to the extent of the contact between the applicant and these older children (see paras 28 and 29). Those findings were re-affirmed in the second decision (see para 17).
Earlier, in the second set of reasons (at para 15 to 21), the Tribunal undertook an assessment of the effect on the three older children if deportation were ordered. In particular, the Tribunal noted that these children lived with their mother and her de facto partner whom they referred to as "uncle". The Tribunal noted the evidence that the older child, Mary, appeared to lead a happy, well-settled existence and that there was no evidence that the other children were not similarly situated. In my view, no legal error is disclosed in this connection.
Another argument which is sought to be advanced on behalf of the applicant concerns the Tribunal's treatment of Mr Taylor's evidence. But here, in this area, involving the assessment of the credibility of expert opinion evidence, no error of law warranting the intervention of this Court in judicial review proceedings has been demonstrated by the applicant.
I can deal briefly with the remaining submissions pressed on behalf of the applicant on some legal questions. It is clear that in Teoh the High Court expressly refrained from deciding that the Tribunal was bound to take account of, or to abide by, the Convention in the sense that a failure so to do would constitute an error of law (see Teoh at 292, 302).
I also agree with the submission advanced on behalf of the Minister that, even if, in addressing Article 3 of the Convention, it were to be held that the Tribunal misconstrued it or failed to apply it correctly, this would not amount to an error of law. Even if the Tribunal were so to act, this would constitute no more, in strictness, than an error of fact, since the Convention does not form part of Australian municipal law. In Sui, above, the Full Court said (at 20):
“The Minister and the AAT had to assess, for themselves, the prospects of recidivism and balance these prospects against the interests of the Australian community, in determining whether Mr Sui should remain in Australia. The AAT had to exercise the discretion at the time when it made its decision having regard to the circumstances, policies and relevant considerations prevailing at the time when the decision is made. This is what the AAT did in the present case.”
In my opinion, those comments are equally applicable in the present case.
ORDERS
The application is dismissed, with costs.
I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont
Associate:
Dated: 20 June 1997
Counsel for the Applicant: S Churches Solicitor for the Applicant: Newman & Associates Counsel for the Respondent: J Hilton SC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 March 1997 Date of Judgment: 20 June 1997
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