AMANDEEP SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL

Did the Tribunal make a determination about the "best interests of the child"? 13 Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act, and s 499(2A) provides that the person or body must comply with any such directions. 14 On 25 July 2012, the Minister made Direction No 55 under s 499, such direction to commence on 1 September 2012. 15 Paragraph 7(1) of Direction No 55 provides that a decision-maker must take into account the considerations in Pt A or Pt B where relevant. 16 Paragraph 8(1) provides that decision-makers "must take into account the primary and other considerations relevant to the individual case". 17 Paragraph 11(1)(b) in Pt B of Direction No 55 provides that in deciding whether to refuse a person's visa, the best interests of minor children in Australia are a primary consideration. 18 Paragraph 11.2 of Direction No 55 provides as follows: 11.2 Best interests of minor children in Australia affected by the decision (1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child. (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made. (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. (4) In considering the best interests of the child, the following factors must be considered where relevant: a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the person is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements; ... f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); 19 The Minister accepts that Direction No 55 is not limited to the biological child or children of an applicant but says that, in the present case, that is the only basis upon which the applicant has advanced a claim that the best interests of the child should have been taken into account by the Tribunal as a primary consideration in its decision-making. That is, he does not claim any other relationship, such as a social relationship. 20 Further, the Minister argues, in all the circumstances there is simply no other basis upon which the Tribunal could have concluded that the child was a "relevant child" in relation to Mr Singh's visa application. Other than his claimed biological relationship, he has not had any relationship with the child in any other capacity. 21 The Minister submits that the requirement in Direction No 55 that a decision-maker should take into account the best interests of minor children in Australia and must make a determination as to what are the best interests of a child or children in deciding whether to refuse a person's visa, only applies to a child who is "affected by the decision", and where this consideration is "relevant to the individual case". See Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28 (Paerau) at [104]-[109] (Perry J). 22 The Minister says that the Tribunal in this case was not satisfied on the evidence before it that the child would be affected by the decision to refuse to grant the visa, as it could not be satisfied on the evidence before it that the child was Mr Singh's. The Minister says this was a finding that was clearly open to the Tribunal on the evidence before it, and accordingly, the Tribunal was not required to make a determination as to what the best interests of the child were. In that regard, the Minister refers to what was found by Buchanan J at [25]-[28] and Perry J at [117]-[118] in Paerau. 23 The Minister thus submits it was open to the Tribunal to conclude, as it did, at [44] of its reasons for decision, that on the evidence before it, it was not satisfied that the child would be "affected" by a decision to refuse to grant a visa to Mr Singh, and therefore the Tribunal was "simply unable to determine whether refusal to grant the visa would, or would not be, in the best interests of [the child]". 24 It follows, the Minister submits, that the Tribunal's conclusion that it was unable to make such a determination did not involve any jurisdictional error. 25 The Minister also refers to the decision in Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86; (2013) 60 AAR 534, where, he submits, it was accepted that the appellant was the father of two further children, but because of limited information available to the Tribunal it was unable to determine whether or not cancellation of the applicant's visa, in that case, would be in the best interests of those children. 26 The Minister submits the Full Court in that case did not find that this failure to make a determination as to whether or not cancellation of the visa would be in the best interests of the two further children involved jurisdictional error. Thus, it is submitted, in this case the information available was simply insufficient to enable it to make a determination as to whether or not to refuse to grant a bridging visa would be in the best interests of the child. 27 On behalf of Mr Singh, counsel draws attention to the expression "minor children in Australia affected by the decision", in para 11.2 of Direction No 55, and the expression "relevant child" found in para 11.2(3). Following further submissions concerning biological parentage and social relationships, counsel for Mr Singh submits that the most appropriate way to construe para 11.2(1) concerning whether refusal "is, or is not, in the best interests of the child", was for the Tribunal to identify which child or children they were required to make a determination in respect of. Counsel then submits that, in the circumstances, if this is the appropriate construction of para 11.2(1), then it may be said the Tribunal failed to identify whether [MFPM], the child, was or was not such a child to which para 11.2(1) applied, and so failed to make any determination under para 11.2(1) and erred in not following Direction No 55. 28 As an alternative to that submission, or perhaps a slightly different way of putting that submission, counsel for Mr Singh submitted that by failing to include or not excluding [MFPM] as an affected child, and then failing to make any determination as required by para 11.2(1), the Tribunal erred in law. 29 On behalf of Mr Singh, counsel also submits that on the particular facts before the Tribunal, a presumption or question was raised, supported by the order of 18 October 2012 for parentage testing, that there is at least a question whether Mr Singh is the father of the child and it is difficult to see, given how broad para 11.2(4) expresses the best interests of the child consideration, that [MFPM] could not be "affected", even if Mr Singh is only suspected of being the biological father of the child. 30 In the result, I consider that the reasons for decision provided by the Tribunal do not reveal any jurisdictional error. 31 While a parentage testing order was made, it was never pursued. The mother of the child apparently expressed doubt as to whether Mr Singh was the father of her child. There was no evidence the mother had herself taken any steps against Mr Singh claiming he was the father. Mr Singh does not present any evidence, apart from the circumstances in which his possible biological fatherhood was earlier raised, to support a claim that he is in fact the father of the child. 32 In the face of this information, it is understandable that the Tribunal expressed, at [41] of its reasons for decision, that it could not be satisfied that the child was Mr Singh's. 33 It was also not surprising, in the light of that information, that the Tribunal also said, at [43], that it could not be satisfied that Mr Singh was likely to play any parental role in relation to the child in the future or that his separation from the child would have any effect on that child. 34 The Tribunal then, at [44], said that having regard to the relevant factors referred to in para 11.2(4) of Direction No 55, "the Tribunal, as presently advised, is not prepared to go so far as to determine that refusal to grant the visa would be in the best interests of [the child]". Here I would understand the Tribunal simply to be expressing the view that there remained some doubt as to parentage but, notwithstanding that doubt, because it could not be satisfied that the child was a child of Mr Singh and because there is nothing to show Mr Singh had a social relationship with the child or that his separation from the child would have any effect on the child, it could not determine that refusal to grant the visa would be in the best interests of the child, as para 11.2(1) of Direction No 55 required it to determine. I do not detect any error, in the circumstances, with the Tribunal coming to that conclusion. 35 It fairly follows, as the Tribunal added, at [44], that it was simply unable to determine whether refusal to grant the visa would, or would not, be in the best interests of the child because of the state of the evidence. 36 For those reasons, again in my view fairly, the Tribunal did not attach any weight to the best interests of the child primary consideration. 37 In those circumstances, ground 1 of the application fails.

Did the Tribunal fail to give notice to the child or his guardian, fail to give the child or his guardian a right to be heard and separately REPRESENTED at the hearing, and/or fail to join the child or his guardian as a party to the hearing prior to the making of the decision? 38 The Minister contends that the issues raised by ground 2 of the application are misconceived in that the Tribunal did not make a determination pursuant to para 11.2(1) of Direction No 55. 39 The Minister says that as no jurisdictional error is established, it must follow that ground 2 cannot be made out. 40 Further, and in any event, the Minister contends there is no jurisdictional error by reason of the alleged failures as in review proceedings of the kind before the Tribunal, it is for the applicant to advance a case as to why the best interests of any child would best be served by his or her visa not being cancelled. The Tribunal has no obligation to notify the other parent or guardian of the child to the application of its consideration. 41 The Minister again refers to Uelese where there was information before the Tribunal that the appellant had two further children and there was no issue as to parentage, and says there was no suggestion that the Tribunal should have notified the mother of those children of the application, or that the Tribunal should otherwise have made inquiries regarding the children. 42 Further, the Minister submits, the Tribunal does not have the power to join another person as a party to a proceeding of its own motion. He says that s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) provides only that the Tribunal may, in its discretion, order that another person be made a party to the proceeding where that person has made an application in writing to be made a party, and then only if they are a person "whose interests are affected by the decision". 43 The Minister submits there was no jurisdictional error on the part of the Tribunal by reason of it not making inquiries or not adjourning the proceeding to give the applicant further time to endeavour to fulfil the Magistrates Court parentage testing order or to seek further direction as to implementing that order. 44 The Minister says that this is not a case where there was a need to make an "obvious inquiry about a critical fact, the existence of which is easily ascertained" which might impose a duty to review. See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) at [25]. 45 The Minister also notes that pursuant to s 500(6L) of the Migration Act, the Tribunal had a limited period of only 84 days after the day on which the applicant was notified of the decision in which to make its decision. It made its decision 79 days after the date on which the applicant applied for review. Thus, any adjournment of the proceeding would have been futile as once the 84 day period had expired, the Tribunal would have been taken to have made a decision affirming the decision on review. 46 On behalf of Mr Singh, counsel principally contends that, because the parentage testing order had been made, the Tribunal needed to make further inquiries, or at the very least adjourn the proceedings so Mr Singh could take steps to satisfy the testing order or seek further directions about that order. Rather, the Tribunal merely noted that Mr Singh had not met the terms of the order and that it had not been positively established that the child was his; and so concluded that it did not need to make a determination for the purposes of para 11.2(1) of Direction No 55. 47 In essence, counsel on behalf of Mr Singh contends that in the light of the information that reasonably did not establish that the child was Mr Singh's child, in circumstances where that issue had apparently been raised in the proceeding in the Family Court and the parentage testing order had been made, the Tribunal should not have proceeded with the determination of the review application before it, but should have warned Mr Singh of the insufficiency of evidence and adjourned the application so that further directions could be sought in relation to the parentage testing order. Indeed, counsel sought leave at the hearing to amend ground 2 of the amended notice of appeal by adding that the Tribunal erred by failing to warn Mr Singh of the insufficiency of the evidence before him in this regard and failing to adjourn the proceedings to enable such directions to be given. 48 The difficulty with the contentions made on behalf of Mr Singh is that the Tribunal is obliged to make a decision in relation to the application before it. Indeed, as the Minister points out, in relation to this category of decision, the Tribunal must make a decision within 84 days after the day on which an applicant was notified of the decision under review: s 500(6L) of the Migration Act. 49 Leaving aside the question whether s 500(6H) or (6J) might apply to any additional evidence that Mr Singh might have wished to adduce following the provision to him by the Tribunal of a further opportunity to lead evidence about paternity (so as to exclude it), I do not consider that the Tribunal was, in the particular circumstances of this case, under any practical obligation in effect to grant Mr Singh an adjournment to further explore his case, or to itself pursue the paternity issue. In SZIAI at [25], the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said that the duty imposed upon the Tribunal by the Migration Act is a duty to review. Their Honours then observed that: It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. 50 In my view, there was no failure here by the Tribunal to make an "obvious inquiry" about a critical fact. No doubt paternity was a foundational issue in the sense that if Mr Singh was the child's parent, the best interests of the child consideration would arise, but I do not consider there was any obvious inquiry that the Tribunal could have made about that issue. Only if testing were carried out would evidence become available bearing on the issue. The question of paternity otherwise remained entirely speculative. 51 Ordinarily, it is for an applicant in the Tribunal to present such information as the applicant wishes to rely on to the Tribunal in pressing his or her case and it is not for the Tribunal to make out a case for an applicant. As the plurality said in SZIAI, at [18], the core function of the Tribunal is to review the decision the subject of the review application before it, and any suggestions that the Tribunal is "inquisitorial" in nature, must be understood in that context. Their Honours added that the word "inquisitorial" does not carry the full meaning of having an official duty to inquire, examine or investigate, when applied to the Tribunal. 52 This is a case where Mr Singh was fully aware of the facts and the limited nature of the evidence suggesting he was the father of the child. Indeed, it was his evidence that indicated that the mother of the child was not certain that he was the father of the child. Mr Singh was fully aware of, indeed the person who had precipitated, the making of the parentage testing order in 2012 when he commenced the proceeding in relation to the child. 53 In all of these circumstances it cannot be said that the Tribunal erred by not taking some action by way of itself making or facilitating further inquiry into factual matters which could readily be determined and which were of a critical significance to the decision under review. 54 It follows that the Tribunal did not err by failing to give notice of the application to the child or guardian, or to give the child or guardian a right to be heard or to join the child as a party to the application in the Tribunal in circumstances where the paternity issues was entirely speculative. 55 I should add that nothing in the Migration Act or Direction No 55 suggests that a child, in circumstances such as those presented in the Tribunal, should independently be given notice of an application such as the bridging visa application or any later review of it. 56 While there may be circumstances in which a child or children whose interests must be considered under Direction No 55 ought to be given notice, an issue that does not require further exploration here, the circumstances raised in this case did not impose any such duty on the Tribunal. 57 In those circumstances, I need not consider other contentions advanced by the Minister. 58 Ground 2 of the application fails. 59 I would also refuse Mr Singh's application for leave to amend ground 2 in the manner indicated above.

conclusion and order 60 For the reasons given above, the application fails. 61 The Court orders: 1. The application be dismissed. 2. The application to amend ground 2 of the amended grounds be refused. 3. The applicant pay the first respondent's costs, to be taxed if not agreed. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.