Cockrell v Minister for Immigration and Citizenship

The best interests of the child 7 By s 499 of the Migration Act, the Minister is empowered to give written directions to a person or body having functions or powers under the Migration Act, if the directions are about the performance of those functions or the exercise of the powers, and are not inconsistent with the Migration Act or regulations made under it. A person or body is obliged to comply with a direction. In the exercise of that power, the Minister's predecessor issued a direction to decision-makers making decisions to refuse or cancel visas under s 501 of the Migration Act. Its title is DIRECTION - VISA REFUSAL AND CANCELLATION UNDER SECTION 501 - No. 21 ("Direction No. 21"). Clause 2.3 of Direction No. 21 sets out three "PRIMARY CONSIDERATIONS". The third, designated (c), is "in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children." Clauses 2.13 to 2.16 contain detailed provisions for the application of this consideration, which it is unnecessary to set out for present purposes. 8 There is no question that the senior member constituting the Tribunal understood his obligation to take into account this primary consideration, in relation to the appellant's son Jedi, who was 16 months old at the time of the Tribunal's hearing. Paragraphs [59]-[62] of the Tribunal's reasons for decision were devoted to a discussion of the effect of considering the best interests of Jedi. The Tribunal concluded at [62] that the prospects of the appellant developing a close relationship with Jedi in the future were doubtful. It also concluded that there was a significant risk that the appellant would offend again and, if he did, that it would be harmful to Jedi's upbringing. The Tribunal found that, for the reasons it had given, and in the best interests of Jedi, the appellant's visa should be cancelled. 9 Before the learned primary judge, and again on appeal, the appellant took issue with the following passage in [61] of the Tribunal's reasons for decision: The applicant referred to the fact that Ms Fraser had consented to the contact orders for Jedi made in the Federal Magistrates Court. The Tribunal draws no adverse inferences from the fact that Ms Fraser so consented. Nor does the Tribunal accept the applicant's submission that, by granting the contact orders by consent, the Court was articulating that the best interests of the child would be served by allowing him to have contact with his father. 10 Also in [61], the Tribunal made reference to the fact that the appellant had referred to amendments to the Family Law Act 1975 (Cth) ("the Family Law Act") which, he argued, were relevant to his case. The Tribunal did not accept that those amendments assisted the appellant. 11 The appellant's argument at first instance and on appeal was that the Tribunal failed to understand the order made by the Federal Magistrates Court in the light of the obligation cast on the court by the relevant provisions of the Family Law Act to regard the best interests of the child as the paramount consideration. 12 At first instance, counsel for the Minister conceded that the Tribunal had made an error in not accepting that the Federal Magistrates Court would only have made the orders it made if satisfied that they were in the best interests of Jedi. The question was whether there was an error going to the jurisdiction of the Tribunal. At [42] of his reasons for judgment, the primary judge rejected the contention that there was an error of law going to jurisdiction because the Tribunal must have misinterpreted the provisions of the Family Law Act. His Honour held that, even if there had been a misinterpretation of those provisions, it did not amount to an error going to the jurisdiction the Tribunal was exercising under s 501(2) of the Migration Act. His Honour was of the view that there was no basis upon which to conclude that the senior member misunderstood the scope or ambit of the statutory jurisdiction or power, or misunderstood any of the statements or directives in Direction No. 21. In particular, there was nothing to suggest that the senior member misunderstood that part of Direction No. 21 that required him to take into account the best interests of the child as a primary consideration. At [43], his Honour also rejected a submission based on the characterisation of the error as a failure to take into account a relevant consideration, namely the Federal Magistrates Court's view as to the best interests of Jedi. His Honour held that the Tribunal member was in no way bound by the views of the Federal Magistrates Court; the relevant consideration was the best interests of the child, not the view of the Federal Magistrates Court as to the best interests of the child. Even if the implicit view of the Federal Magistrates Court was a relevant consideration, it was a consideration that the Tribunal was permitted, but not bound, to take into account. The Tribunal was bound to make up its own mind about the best interests of Jedi, having regard to the matters specified in Direction No. 21. The Tribunal's inquiry involved an examination of the range of matters referred to in that direction. 13 On appeal, counsel for the appellant argued that, although the Tribunal was not bound by the view of the Federal Magistrates Court, it was required accurately to consider the material before it and the significance of that material. It was necessary for the Tribunal to consider the nature of the relationship between the appellant and Jedi. This required an accurate understanding of the legal relationship established by the order of the Federal Magistrates Court and its implications for the future development of a relationship between the two. The error about the basis of the orders of the Federal Magistrates Court was therefore relevant to the Tribunal's review, because it affected the Tribunal's formulation of the task it had, and of the questions it had to decide. Critically, it may have affected the decision, because it affected the determination on a primary consideration under Direction No. 21. For this reason, counsel for the appellant argued, the error was a jurisdictional error. 14 The Tribunal was clearly of the opinion that, notwithstanding the orders of the Federal Magistrates Court (which provided only for 52 hours of contact per year between the appellant and Jedi), the prospects of the appellant and Jedi developing a close relationship in the future were doubtful. This was a conclusion clearly open to it. In the context of the Tribunal's task, any view that the Federal Magistrates Court may have had that this low level of contact was in the best interests of Jedi was at best peripheral. The primary judge was correct in focusing on the task of the Tribunal, which involved determining for itself what the best interests of Jedi were, and how those interests bore upon the exercise of the Tribunal's discretion in relation to the cancellation of the appellant's visa. There is nothing to indicate that the Tribunal misunderstood its task, or made an error of any significance in the way in which it approached the task. Any error it made in not appreciating fully the task of the Federal Magistrates Court was insignificant. 15 In relation to this ground, the appellant has failed to establish jurisdictional error on the part of the Tribunal, and has failed to establish error on the part of the primary judge in failing to find such jurisdictional error.

The nature of the discretion 16 In dealing with what it called "OTHER CONSIDERATIONS", at [63] of its reasons for decision, the Tribunal said: The Tribunal has considered the factors set out in paragraphs 2.17 to 2.24 of the Direction. The relevant factors in those paragraphs are largely not relevant to the applicant's situation and, in the Tribunal's view, none of the factors would constitute a significant ground for exercising the Tribunal's discretion in the applicant's favour. 17 Counsel for the appellant contended that this passage demonstrates that the Tribunal failed to characterise correctly the nature of the discretion given to it by s 501(2) of the Migration Act. That discretion is a discretion to cancel a visa. The argument is that, by characterising it as a discretion to be exercised in the appellant's favour, the Tribunal was viewing it as a discretion not to cancel a visa. A failure to understand the nature of the discretion to be exercised amounted to an error of law, and therefore to jurisdictional error. 18 In dealing with this contention, at [47]-[48] of his reasons for judgment, the primary judge said: The applicant's submission that the Tribunal member misunderstood the nature of the discretion in s 501(2) of the Act must be rejected. It is true that he did appear to misstate the nature of the discretion in that part of his reasons which I have summarised above ([29]) but his reasons must be read as a whole and not with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The Tribunal member was clearly alert to the nature of the discretion he was called upon to exercise. At the beginning of his reasons he said the only issue before him was whether the discretion to cancel the visa should be exercised and he concluded his reasons by saying that he had decided that it was appropriate to exercise the discretion under s 501(2) of the Act to cancel the applicant's visa. Furthermore, throughout his reasons, and, in particular when addressing the three primary considerations, the Tribunal member referred to a particular factor as one favouring a decision to cancel the applicant's visa. I do not think that the Tribunal member misunderstood the nature of the discretion. 19 The particular passages in which the senior member referred to the nature of the discretion in terms that demonstrated that he understood them clearly are found in his reasons for decision at: [5] "the discretion conferred by s 501(2) of the Act to cancel the applicant's visa"; [35] "the discretion to cancel the applicant's visa"; [54] "the visa should be cancelled"; [58] "favour the cancellation of the visa"; [62] "the applicant's visa should be cancelled"; and [65] "to exercise the discretion under s 501(2) of the Act to cancel the applicant's visa." 20 In the light of these passages, it is impossible to conclude from the reference to the possibility of the exercise of the discretion in the appellant's favour in [63] that the Tribunal misunderstood the nature of the discretion it was exercising, or was uncertain as to the task it was required to perform. At most, what the Tribunal said in [63] was a clumsy attempt to state its view of the significance of the other considerations to its task. The primary judge was correct in the conclusion that he reached on this ground.

The other considerations 21 Clause 2.17 of Direction No. 21 provides relevantly as follows: When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include: (a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community; · "Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:: "The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State." ... (c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere; (d) family composition of the non-citizen's family, both in Australia and overseas; ... (j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and (k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501. 22 Under the heading "OTHER INTERNATIONAL OBLIGATIONS", cl 2.18 of Direction No. 21 provides: Where relevant, decision-makers are required to consider the international obligations contained in this section. 23 In cl 2.19, there is reference to the International Covenant on Civil and Political Rights ("ICCPR"), particularly to Art 6 (right to life), Art 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) and to the Second Optional Protocol to the International Covenant on Civil and Political Rights, which concerns the death penalty. Clause 2.20 refers to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In cl 2.22, there is reference to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees. Clause 2.24 provides: Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister. 24 What the Tribunal said in [63] of its reasons for decision, in relation to the factors set out in cll 2.17 to 2.24 of Direction No. 21, has been set out in part in [15] above. The Tribunal then discussed the specific issue of hardship to the appellant's immediate family members, referring to possible hardship to Jedi, "already canvassed above". It also discussed other specific factors. 25 Counsel for the appellant argued that there were three other considerations that were relevant, and were therefore required by Direction No. 21 to be taken into account by the Tribunal, but were ignored. The first of these was international obligations under Arts 23 and 24 of the ICCPR and Arts 5, 9 and 10 of the Convention on the Rights of the Child. The argument was that the Tribunal should have considered obligations concerning the unity of the family under the ICCPR and the rights of Jedi under the Convention on the Rights of the Child, either under cl 2.17(a) or 2.18 of Direction No. 21. The second matter that counsel for the appellant argued the Tribunal was required to take into account was hardship to the appellant himself by loss of contact with his son Jedi. This was said to be relevant under cl 2.17(a). The third consideration was that the appellant had not been formally advised prior to his offences by an officer of the relevant department that particular conduct may bring him within the cancellation provisions of s 501 of the Migration Act. 26 The primary judge's reasoning on these issues is found in [50]-[53] of his Honour's reasons for judgment: The direction lists a number of matters under the heading "Other Considerations". The direction states that these are matters which "may be relevant". The list of matters is not exhaustive. It seems to me that the terms of the direction are such that it is primarily up to the decision-maker to determine if any of the listed matters or, indeed, any other matter is relevant in a particular case. The Tribunal member said that the matters in paragraphs 2.17 to 2.24 inclusive of the direction were largely not relevant to the applicant's situation. The Tribunal member considered the effect on the applicant's family noting that other than Jedi who he had already considered, the applicant's immediate family resided in the United States. He considered the applicant's business ties to the Australian community and he said that he was not satisfied that the applicant's association with Mr Courtney would give rise to any serious or ongoing offer of employment. He referred to his previous discussion about the applicant's rehabilitation and his conduct since his incarceration. That is a matter referred to in the direction (paragraph 2.17(h)). It is clear that the Tribunal member has considered the matters in clause 2.17. The Tribunal member also considered the matters appearing in the direction under the heading "Other International Obligations". His conclusion was that there was no suggestion that if the applicant was returned to the United States "he would be placed in a situation where relevant rights under international obligations would be violated". I do not think the Tribunal member was obliged to consider the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child either at all, or in the case of the Covenant, any further than he did. It must be remembered that he gave careful consideration to the interests of Jedi and he considered the position of the applicant's immediate family. I do not think the Tribunal member was bound to consider hardship to the applicant himself. It is possible that in any event he did so when considering the best interests of Jedi, but even if he did not, he did not err in law in not doing so. Nor do I think the Tribunal member erred in not considering the absence of a prior warning. The fact that prior warning has been given may be relevant (paragraph 2.17(k)), but the absence of a prior warning is either irrelevant or, at most, a consideration of only permissive, not mandatory character. 27 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41, Mason J summarised the law relating to a challenge to an administrative decision on the ground that the decision-maker has failed to take into account a relevant consideration, in the following propositions: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision...The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider". (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard...By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision... (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. 28 For the purpose of applying these principles, it is necessary to examine any direction given under s 499 of the Migration Act, in order to determine what are the considerations that the decision-maker is bound to take into account. Such a direction is made with statutory authority, and it is tabled for consideration by both Houses of Parliament, pursuant to s 499(3). There is no doubt from cl 2.1 of Direction No. 21 that the considerations that are specified in Direction No. 21 are considerations that a decision-maker is bound to take into account. The terms of cl 2.1 make that clear, when they say "decision-makers must have regard to the following considerations". Clause 2.17 is in different terms, however. It recognises that other matters "may be relevant." It provides that "where relevant, it is appropriate that these matters be taken into account". It provides a list of possible relevant considerations that is not exhaustive. Mason J's adoption of the statement of Lord Greene MR in proposition (a) makes it clear that, in such a situation, the task of determining what is relevant is left to the person obliged to exercise the discretion. This is what the primary judge meant when he said at [50] that it is primarily up to the decision-maker to determine if any of the listed matters, or any other matter, is relevant to a particular case. The senior member did make such a determination, albeit largely in general terms. 29 In the light of the Tribunal's findings, expressed in [62] of its reasons for decision, that there was no established relationship between Jedi and the appellant at the time of the Tribunal's decision, and that the prospects of the appellant developing a close relationship with Jedi in the future were doubtful, it is hardly surprising that the Tribunal did not consider the provisions of the ICCPR relating to protection of the family to be relevant to the exercise of its discretion. In no sense other than a purely biological one could it have been said that the appellant and Jedi constituted a family. The breakdown of the relationship between the appellant and Ms Fraser, documented in the Tribunal's reasons for decision, could only have led to the conclusion that there was no family of which it could be said that the appellant and Ms Fraser were members. Further, the Tribunal's consideration of the best interests of Jedi had led it to conclude that it was in those best interests that the visa be cancelled, with the result that the appellant would be removed from Australia and there would be no realistic possibility of the development of any true family relationship between him and Jedi. On the basis of these findings, there was no occasion for the Tribunal to consider whether removing the appellant from contact with Jedi would infringe any right that Jedi may have had under the Convention on the Rights of the Child. 30 In relation to hardship to the appellant himself, it is by no means clear that the appellant put to the Tribunal any substantial evidence or argument to the effect that he would suffer hardship if he were to lose contact with Jedi. In the course of a 42-page summary of facts, issues and contentions submitted to the Tribunal, the appellant could only manage to say, at para 470, that he "would suffer tremendous emotional hardship if he were ripped away from his son" and, at para 519, that "the hardship he will endure if ripped away from his child and life here in Australia will be insufferable." The Tribunal referred to this document in general terms at [64] of its reasons for decision. In a statutory declaration, made on 31 August 2006, the appellant told the Tribunal, in the context of dealing with his financial ability to care for Jedi, that he would be forced to take a low-paid job in the United States, after declaring his Australian convictions. A report of a consultant forensic psychologist, considered by the Tribunal, referred to the appellant's concern for his infant son as reinforcing his desire to remain a contributing member of the Australian community, and to his fear that his absence would result in a repeat of history, in terms of his own lack of contact with his father during his formative years. In a letter dated 1 April 2004, prior to the delegate's decision, the appellant referred to his incarceration and deprivation of liberty, and to "an additional punitive judgement of permanent separation from my family, friends, children whose lives I am involved in, community and business interests", describing this punishment as the equivalent of kicking a man while he is down, and pouring salt on wounds. In the same document, he suggested that the mental anguish engendered by the permanent dissolution of his marital and family unit, caused by a deportation order, as of "such significant magnitude as to be defined as torture". In a statutory declaration dated 25 August 2006, addressed to the then Minister for Immigration and Indigenous and Multicultural Affairs, the appellant said that, if he did not get the chance to raise his son, three people would suffer, being his son, himself and his son's mother, who would be forced to raise his son with two other boys on her own. In the same document, he referred to the fact that anti-depressant medicine had been prescribed for him, "as the thought of losing my son can sometimes bee [sic] too much." Finally, in the course of his closing submissions in the Tribunal hearing, the appellant referred to the hurt that would be caused to both himself and his son, if he were to be removed. The senior member invited him to explain the proposition that he would suffer hurt if removed to the United States. The appellant referred to the hurt as "psychological", and began to describe suffering depression while in the detention centre. The minister's representative objected to the submission, on the ground that the matters to which it related were not matters the subject of evidence. 31 Counsel for the appellant did not refer the Court to any other document, or transcript of evidence, in which any evidence or submission of hardship to the appellant was put before the Tribunal. Any evidence and submissions in support of the proposition that the appellant would suffer hardship is therefore vague, and is usually found in the context of assertions of hardship to others, particularly Jedi. It is difficult to see how the Tribunal could come to the conclusion that hardship to the appellant was a relevant factor, appropriate for it to take into account under cl 2.17 of Direction No. 21. The specific mention in cl 2.17(c) of hardship to immediate family members lawfully resident in Australia tends to make it doubtful that hardship to the person cancellation of whose visa is being considered would be regarded as a relevant matter, at least in most cases. It must be assumed that the cancellation of a visa of a person who opposes that cancellation would cause that person hardship in any event. Unless a case of specific hardship were put before the decision-maker, it can hardly be expected that the decision-maker would take into account such a general consideration. To the extent to which hardship to the appellant by separation from Jedi is implicit in the cancellation of the appellant's visa, it is important that Direction No. 21 only makes specific reference (in the circumstances of this case) to hardship to Jedi. It is at least implicit in the Tribunal's finding that the prospects of the appellant and Jedi developing a close relationship were doubtful that the Tribunal's view was that the appellant's removal to the United States would make no significant difference to his relationship with Jedi, and therefore to any detriment he suffered from the absence of a such a relationship. 32 The absence of a warning to the appellant that his conduct, if continued, would be likely to lead to a cancellation of his visa under s 501(2) could not have been a relevant consideration in the circumstances of the present case. It is at least arguable that the absence of a warning would not be a relevant consideration in any case, given the express reference in cl 2.17(k) to the appropriateness of taking into account the fact that a warning had been given. It is unnecessary to decide that question. The present case is not one in which the appellant had accumulated his criminal record by a series of convictions over a period, so that it would have been possible for a warning to be given to him that, if he persisted in engaging in criminal conduct, he would be liable to have his visa cancelled under s 501(2). The appellant was convicted of a number of offences on the one date. There was simply no scope for any official warning of the type contemplated by cl 2.17(k) of Direction No. 21. 33 In any event, it must be said that, if any of the three considerations on which counsel for the appellant relied was a consideration to which the Tribunal ought to have had regard, each was of such slight relevance as to give rise to the application of Mason J's proposition (c). Each was so insignificant that the failure to take it into account could not have materially affected the decision. Bearing in mind the limited role of a court reviewing the exercise of an administrative discretion, as Mason J said in proposition (d), the Court ought not to set aside a carefully considered decision of the Tribunal, such as the one in the present case, on the basis of such abstract factors as the three considerations on which counsel for the appellant relied. 34 The appellant has failed to demonstrate that the primary judge erred in rejecting the proposition that the Tribunal was required to take into account, and had not taken into account, the provisions of the ICCPR relating to the family, the Convention on the Rights of the Child, hardship suffered by the appellant from loss of contact with his son or the absence of any warning to the appellant that if he committed serious offences he may jeopardise his visa.

Conclusion 35 The appellant having failed to make good any of the grounds of appeal, and to establish error on the part of the primary judge, or jurisdictional error on the part of the Tribunal, the appeal must be dismissed. No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. The appellant should therefore be ordered to pay the Minister's costs of the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate: Dated: 5 September 2008 Counsel for the Appellant: A Krohn

Solicitor for the Appellant: Westside Community Lawyers

Solicitor for the Respondents: Australian Government Solicitor