FEDERAL COURT OF AUSTRALIA
Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568
MIGRATION – visa applicant found not to be of good character – discretion to refuse to grant visa – whether proper consideration given by Administrative Appeals Tribunal to the best interests of the applicant’s children in reviewing the decision to refuse visa – requirement that the best interests of the children be a primary consideration – nature of “a primary consideration” – need to make finding as to the decision that would be in the best interests of the children – requirement for proper, genuine and realistic consideration of interests of the children
Migration Act 1958 (Cth) ss 499, 501
Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B)Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, followed
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, appliedLEI WAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1369 of 2000BRANSON, NORTH and STONE JJ
SYDNEY
18 MAY 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1369 of 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LEI WAN
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGES:
BRANSON, NORTH and STONE JJ
DATE OF ORDER:
18 MAY 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed and the orders made at first instance be set aside.
2.In lieu of the orders set aside, the decision of the Administrative Appeals Tribunal made on 10 August 2000 be set aside; the respondent Minister pay the appellant’s costs of the application; and the matter be remitted to the Tribunal differently constituted to be heard and determined again.
3.The respondent Minister pay the appellant’s costs of the appeal.
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
N 1369 of 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
LEI WAN
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGES:
BRANSON, NORTH and STONE JJ
DATE:
18 MAY 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT
INTRODUCTION
The appellant (“Mr Wan”) is married to an Australian citizen. He and his wife have two children, one aged 8 years and the other aged 20 months. Both of the children are Australian citizens.
On 13 June 1995 Mr Wan applied for a permanent residence (general-spouse) visa. On 6 May 1999 a delegate of the respondent (“the Minister”), being satisfied that Mr Wan was a person who was not of good character, decided to refuse to grant Mr Wan the visa for which he had applied.
On 24 May 1999 Mr Wan applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision of the Minister’s delegate. On 10 August 2000 the Tribunal, constituted by Deputy President McMahon, affirmed the decision of the…
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- AGLC
- Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
- Case
- [2001] FCA 568
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to address included whether the AAT had correctly applied the principle that the best interests of the children should be a primary consideration and whether there was a failure on the part of the AAT to sufficiently detail their reasoning. This case drew on the precedent set by Teoh and Vaitaiki, which had established the obligation on administrative decision-makers to prioritise the best interests of children in relevant decisions.
The court found that the AAT had indeed considered the best interests of the children, albeit not in great detail. The judge concluded that the AAT had assumed it would be in the best interests of the children to remain in Australia, and that the possibility of the children travelling to China with their father was within the realm of possibility. The court acknowledged that more detailed reasoning would have been preferable but did not find that the AAT's failure to elaborate on this point constituted a significant error. Therefore, the appeal was dismissed, and the decision of the AAT was upheld.
The final orders were that the appeal be allowed and the orders made at first instance be set aside. The decision of the AAT made on 10 August 2000 was set aside, with the Minister paying the appellant's costs of the application. The matter was remitted to the AAT differently constituted to be heard and determined again. Additionally, the Minister was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed and the orders made at first instance be set aside.
2. In lieu of the orders set aside, the decision of the Administrative Appeals Tribunal made on 10 August 2000 be set aside; the respondent Minister pay the appellant’s costs of the application; and the matter be remitted to the Tribunal differently constituted to be heard and determined again.
3. The respondent Minister pay the appellant’s costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
His Honour, in considering whether the Tribunal did treat the best interests of the children as a primary consideration, set out par 34 from the Tribunal’s written reasons for decision (see [17] above). Having done so, his Honour said:“That passage indicates, in my view, that the Tribunal had concluded that it would be in the best interests of the children that Mr Wan should not be refused a visa. The Tribunal was considering the possibilities in which the children might be permitted to remain with their father. They might travel to China with him and the express reference to that possibility indicates that the Tribunal considered that that was not beyond the realms of possibility. The clear assumption, however, it seems to me from the Tribunal’s reasons, is that the Tribunal was assuming that it would be in the best interests of the children generally to remain in Australia, and that there was no real detriment from their father returning to China, apart from the financial hardship. I am not suggesting that that was in any way minimised.It is clear that the Tribunal found that the matters summarised in the passage that I have just set out did not outweigh the strength of community expectations, in the light of the finding that was made in relation to the character of Mr Wan. I do not consider that Mr Wan had made out his complaint based on any failure on the part of the Tribunal to treat the best interests of children as a primary consideration. It would, of course, have been preferable for the Tribunal to set out in some more detail the reasoning that led to the conclusion that the subsidiary matters did not outweigh the strength of community expectations. I did not understand Mr Wan to rely on the Tribunal’s characterisation of the matters as ‘subsidiary’ as an indication that the Tribunal had not treated the interest of children as primary.”His Honour dismissed Mr Wan’s appeal.CONSIDERATION The Full Court of this Court gave consideration in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 (“Vaitaiki”) to the substance of the obligation (should it arise) on an administrative decision-maker, in making a decision affecting a child, to treat the best interests of the child as a primary consideration. The appellant in Vaitaiki was a citizen of Tonga. He had six children, all of whom were Australian citizens. A deportation order was made against him as a non-citizen who had been convicted of serious offences. Mr Vaitaiki applied to the Tribunal for review of the deportation order. Coincidentally the application for review was heard and determined by the same Deputy President whose decision was the subject of the appeal to the Court in this case. Mr Vaitaiki’s application to the Tribunal resulted initially in a decision that the decision to issue the deportation order be affirmed. The decision of the High Court in Teoh was published after the date of the Tribunal’s reasons, although the decision of the Full Court of this Court in Teoh, which was upheld by the High Court, was available at the time of the Tribunal’s decision. An appeal from the decision of the Tribunal was instituted in the Court and by consent the appeal was allowed and the matter remitted to the Tribunal for reconsideration according to law. Unusually the matter was heard and determined on the remittal by the Deputy President who had made the decision which had been set aside by consent. The Deputy President incorporated by reference his earlier reasons for decision in his reasons for decision following his reconsideration of the matter on the remittal. An appeal to the Court from the second decision of the Tribunal was dismissed by a judge of the Court and an appeal from that judgment was made to the Full Court. By majority (Burchett and Branson JJ) the appeal was upheld and the matter again remitted to the Tribunal for hearing according to law by a tribunal different constituted. Whitlam J would have dismissed the appeal.