The Submissions of the Appellants
21 The appellants submitted that the Tribunal's decisions were each infected with two essential jurisdictional errors:
(1) the first was that the Tribunal had failed to consider the best interests of the appellants' two young children as a primary consideration which might have outweighed the seriousness of the appellants' non-compliance with s. 101 of the Act. This ground relied heavily on the reasons for judgment of Mason C.J. and Deane J. in Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 C.L.R. 273; and
(2) the second was that for the purposes of considering the risk of harm to the appellants if they were to be returned to Iran in preparing the I.T.O.A., the Department failed to ask why the appellants did not, when in Iran, assert their cultural or political rights as ethnic Arabs. The Department should have so asked, and therefore this failure to ask rendered the I.T.O.A. legally invalid. It was thus an error for the Tribunal to have adopted its contents. This ground relied heavily on the reasons for judgment in S395/2002 v. Minister for Immigration and Multicultural Affairs (2003) 216 C.L.R. 473 and in Minister for Immigration and Border Protection v. BBS16 (2017) 257 F.C.R. 111.
22 The first ground concerned the relevance of Art. 3(1) of the United Nations Convention on the Rights of the Child done at New York on 20 November 1989 ("the Convention"), which is in the following form:
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.
The Minister did not dispute that the decisions of the Tribunal were actions concerning children.
23 In Teoh, the appellant had applied for a permanent entry permit. He had a wife and young children in Australia. While the application was pending, the appellant was convicted of certain drug offences. Following review by a panel, it was decided that the needs of the appellant's family did not justify waiver of the character requirement in the Act, as it then was. The panel recommended the deportation of the appellant. The Minister accepted that recommendation and made an order for his deportation.
24 Mason C.J. and Deane J. recognised that Art. 3 of the Convention did not have the force of law for domestic purposes in Australia. However, upon Australia's ratification of the Convention, there arose a "legitimate expectation" that any Australian decision maker in an "action concerning children" would act in accordance with the Convention, including Art. 3(1). This did not oblige such a decision maker to act concordantly with that legitimate expectation. The Convention was not a binding law. As their Honours observed at 291:
The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. And that, as we have already said, is what Lee and Carr JJ seem to have done because the obligation to initiate inquiries and reports appears to stem from a view that the Minister's delegate was bound to apply Art 3.1.
25 However, because of the existence of the legitimate expectation, a decision maker that proposed to make a decision contrary to that expectation was obliged, as a matter of procedural fairness, to disclose that fact to the affected party. Thus, Mason C.J. and Deane J. said at 291-292:
But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.
26 Mason C.J. and Deane J. decided that because the Minister's delegate had failed to make this necessary disclosure, there had been a breach of the rules of procedural fairness. Their Honours considered the reasons of that delegate and decided that whilst the delegate and the panel had considered the interests of the children, neither gave those interests the necessary primacy as contemplated by Art. 3(1). Thus, at 292, their Honours reasoned as follows:
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 recognized 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.
The appellants before me placed great reliance on the foregoing passages and said that similar reasoning was followed in the Tribunal's decisions here.
27 The appellants well understood that the nomenclature of "legitimate expectation" has, since Teoh, fallen out of favour in Australia: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 C.L.R. 1. But they submitted that Teoh remained good law, although the reasoning that led to the result in that case might now be expressed differently. A more "modern" way of expressing the principle to be derived from Teoh could, it was submitted, be found in the judgment in that case of Gaudron J. at 305 as follows:
There is a want of procedural fairness if there is no opportunity to be heard on matters in issue. And there is no opportunity to be heard if the person concerned neither knows nor is in a position to anticipate what the issues are. That is also the case if it is assumed that a particular matter is not in issue and the assumption is reasonable in the circumstances. In my view and for the reasons already given, it is reasonable to assume that, in a case such as the present, the best interests of the children would be taken into account as a primary consideration and as a matter of course. That being so, procedural fairness required that, if the delegate were considering proceeding on some other basis, she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise. It did not, however, require her to initiate inquiries and obtain reports about the future welfare of the children and, in this respect, I agree with the judgment of Mason CJ and Deane J.
28 The appellants cited the more recent decision of Perry J. in Poroa v. Minister for Immigration and Border Protection (2017) 252 F.C.R. 505 for the proposition that Teoh remained good law. There, her Honour observed at 517 [51] as follows:
While the Minister pointed to statements in the authorities casting doubt upon the decision in Teoh, the Minister accepted that the principles in Teoh have not been directly overruled and that, for present purposes, they remain good law: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [81]-[83]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30]. Applying Teoh, I accept that Australia's ratification of the ICCPR gave rise to a legitimate expectation that the right to found a family would be taken into account. That such an expectation arises is confirmed by Article 2 of the ICCPR pursuant to which each State Party to the ICCPR relevantly undertook "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant..." and "to take the necessary steps ... to give effect to the rights recognized in the present Covenant".
29 The appellants also relied upon an earlier decision of the Full Court of the Federal Court in Wan v. Minister for Immigration and Multicultural Affairs (2001) 107 F.C.R. 133. In that case, the applicant had been refused a permanent residence (general-spouse) visa on character grounds pursuant to s. 501(2) of the Act. He was married to an Australian citizen, and was the father of two children who were also Australian citizens. The Tribunal's decision was set aside because it had not identified what were the best interests of the children, nor had it treated this factor as a primary consideration. The Full Court applied Teoh.
30 The Full Court in Wan also applied an earlier Full Federal Court decision in Vaitaiki v. Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 A.L.R. 608. In that case the appellant had been convicted of a series of offences and an order for his deportation had been made. The appellant had three older and three younger children in Australia. The deportation decision was affirmed on review by the Tribunal. This Court set aside that decision by consent because the Tribunal had failed to apply Teoh correctly. It should be noted that the Tribunal only had the benefit of the reasons of the Full Federal Court in Teoh v. Minister for Immigration and Ethnic Affairs (1994) 49 F.C.R. 409 at the time it made that decision. However, the High Court in Teoh expressed similar views to that of the majority in the Full Federal Court when it upheld that Court's decision.
31 At a second hearing before the Tribunal, by which time the High Court had handed down its decision, the Tribunal decided that the procedural fairness mandated by the High Court Teoh decision had been afforded to the appellant by the act of the re-hearing. The Full Court set aside that second Tribunal decision. Burchett J. expressed the test from Teoh in the following way at 612:
In Teoh, the majority of the High Court held, in respect of circumstances not relevantly distinguishable from the present, that if a decision were to be given by an administrator which did not accord with the principle that the best interests of any children concerned were to be a primary consideration, the administrator would first be required to give adequate notice and an opportunity for the presentation of a case against the taking of such a course. This, in the view of Mason CJ and Deane J (at CLR 291-2) was because Australia's ratification of the United Nations Convention on the Rights of the Child created a legitimate expectation, so as to attract the principle of natural justice, that administrators would act in conformity with the Convention …
32 Burchett J. decided that the second Tribunal decision had not correctly applied Teoh because the Tribunal had not given the best interests of the appellant's children primary consideration. His Honour said at 616:
However, the tribunal did proceed to give consideration to the facts, and it is necessary to examine its further reasons to see whether, despite its protestations about the validity of its earlier reasons, and the statements to which I have referred, it did in reality take account of the children's best interests as it was required to do by law. In my opinion, it was certainly required to take them into account, at least as very significant matters, for more than one reason. In the first place, as no notice had been given within the meaning of the majority judgments in Teoh, it was required to take the best interests of the children into account as a primary consideration. That requirement and the legitimate expectation from which it sprang were reinforced, in the circumstances of the second hearing before the tribunal, by the fact that the earlier decision had been set aside, and the matter remitted for determination according to law, on the very basis that the law required, and the parties were agreed, that in the absence of notice to the contrary the best interests of the children must be treated as a primary consideration. There was no foundation for the tribunal's statement, which misunderstands Teoh that procedural fairness had been afforded to the applicant merely by the holding of a hearing. In addition, and for reasons explained by Gaudron J, at the least the substantive law required the interests of young children who were Australian citizens to be taken into account as very significant matters. The view should not be entertained that, when Parliament provided for the assertion of community interests under the former s 55, it excluded from those interests the well-being of the community's weakest and most vulnerable members, who are also its future.
33 Branson J. was also of the view that the Tribunal was required to give consideration to the best interests of the children. Her Honour said at 631:
I conclude, in broad agreement with Burchett J, that although the AAT purported to act on the basis that the best interests of the appellant's children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children's best interests: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 414; 121 ALR 436 per Black CJ; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J; Flentjar v Repatriation Commission (Fed C of A, Full Court, 10 October 1997, unreported) at 5.
In the circumstances of the approach which it adopted having regard to the decision of the High Court in Teoh's case, the AAT was bound to give consideration to the best interests of the children: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; 66 ALR 299 per Mason J. Its failure properly to do so was thus an error of law.
34 The decisions of Wan and Vaitaiki bind me, although there may be a question as to whether Vaitaiki's precedential force is diminished in the event their Honour's reasoning relied upon an expression of principle that was agreed between the parties: Coleman v. Power (2004) 220 C.L.R. 1 at 44-45 [79] per McHugh J. In my very respectful view, on one possible view Vaitaiki misstates the principle to be derived from the judgment of Mason C.J. and Deane J. in Teoh. Their Honours in Teoh specifically did not state that a decision maker is bound to take into account the best interests of any children as a primary consideration. That was because Art. 3(1) did not (and does not) form part of the domestic law of Australia. This is made clear in the passage I have set out above from page 291 of the reasons. Rather, a decision maker is obliged to give notice if she or he intends to act inconsistently with the Convention. The giving of notice affords the applicant with an opportunity to answer it. In this way, the error in Teoh may be characterised as a breach of procedural fairness. Vaitaiki perhaps expresses the principle differently. Burchett J. decided that a decision maker was bound to take into account the best interests of the children, unless she or he had given notice that she or he would not do so. Branson J., perhaps on one view, went even further. Her Honour decided that a decision maker more generally was bound to consider the best interests of the children. Neither expression of the principle ostensibly requires the presence of a finding that a decision maker had first proposed to act inconsistently with the Convention; it was sufficient that she or he in fact had so acted. If that is so, it may be the case that this type of error should not really be characterised as a breach of procedural fairness; rather it appears to have transformed into an error of law arising from a failure to take into account a relevant consideration.
35 A possible consequence of the way the test is expressed in Vaitaiki is that a decision maker who mistakenly fails in her or his reasons to consider the best interests of a child as a primary consideration, or who otherwise by her or his reasons is shown to have misunderstood that obligation, will still be found to have breached the rules of procedural fairness even though, in such a case, there is nothing which such a decision maker could relevantly give notice about. For example, a decision maker might earnestly seek to apply Art. 3(1) of the Convention, but fail to give the best interests of a child the correct degree of primacy. Based on Vaitaiki, such a decision maker may possibly have failed to provide procedural fairness, and will thus have erred at law.
36 The appellants submitted that the Vaitaiki approach was supported by recent decisions of this Court. In Nweke v. Minister for Immigration and Citizenship [2012] FCA 266; (2012) 126 A.L.D. 501, a decision to cancel a visa on character grounds pursuant to s. 501A of the Act was set aside because the Minister had failed to treat the best interests of the applicant's children as a primary consideration. Jagot J. said at 508 [21]:
Applying the reasoning in Vaitaiki and Wan it is apparent that the minister did not in fact treat the best interests of the applicant's children as a primary consideration in the decision whether or not to cancel the applicant's visa. The minister could not do so because he never confronted the central question of what the best interests of the children required him to decide with respect to the proposed deportation of their father. Not having done so as his starting point, the minister also could not then assess whether any other consideration outweighed the best interests of the children understood as a primary consideration. For these reasons the minister departed from the legitimate expectation founded on the Convention and thus denied the applicant procedural fairness. The minister's decision is thus vitiated for jurisdictional error.
37 Nweke was followed by Katzmann J. in Lesianawai v. Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 A.L.D. 27. In that case, another Ministerial decision to cancel a visa pursuant to s. 501A was set aside because of a failure to identify the best interests of the children as a primary consideration: at 35 [43]. More recently, in CFE16 and CFD16 v. Minister for Immigration & Anor [2020] FCCA 1083, Judge Reithmuller well summarised the applicable principle as follows at [21]:
The real question for these proceedings is whether or not the reasons of the Tribunal member, read as a whole, indicate that the decision-maker did, in fact, have regard to [the best interests of the children] as a primary consideration.
In my view, I am clearly bound to follow and apply the expression of the rule in Teoh, as formulated in Vaitaiki and followed by subsequent decisions of this Court.
38 The appellants submitted that here the Tribunal had failed at [49]-[51], as set out above, to have regard to the best interests of the appellants' children as a primary consideration. Indeed, the Tribunal had failed to express what those best interests were. Instead, it had confined itself to an expression of general "genuine empathy" and then had merely identified how the children would be able to cope in Iran. Moreover, the reasoning did not demonstrate that the interests of the children was to be a primary consideration when considering whether the appellants' non-compliance with the Act should result in the cancellation of their visas. It followed, it was said, that the Tribunal had erred in law.
39 The appellants also submitted in the alternative that if Teoh were to be confined to cases where a decision maker proposed to act inconsistently with Art. 3(1) of the Convention, then I should infer that this had taken place here because the reasons had failed to include a consideration of the best interests of the children in the required way.
40 In relation to the second ground, the appellants submitted that the I.T.O.A. decision maker had failed in her or his task in assessing the risk of harm to each appellant if they were to be returned to Iran. In that respect, the appellants pointed out that the 2016 D.F.A.T. country information report concerning Iran made it clear that the threat to Arab Iranians would increase dramatically if such persons were to assert cultural or political rights which were to be perceived as a threat to the constitutional foundations of the Iranian state or its territorial integrity. The threats might include monitoring, summons for questioning, closure of offices or organisations or arrest.
41 In such circumstances, the appellants submitted that the decision maker was obliged to ask why it was that the appellants had not asserted their cultural or political rights as ethnic Arabs in the past. This had never taken place. The appellants referred to S395/2002 v. Minister for Immigration and Multicultural Affairs (2003) 216 C.L.R. 473 where McHugh and Kirby JJ. said the following at 489-490 [41]:
History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention.
42 The appellants submitted that their case was relevantly the same as that considered by the Full Court of this Court in BBS16. In that case, an application for a protection visa made by an Iranian of the Sabean-Mandaean faith had been refused by a delegate of the Minister. That decision was affirmed by the Immigration Assessment Authority (the "I.A.A."). In considering the risk of harm, the Court found that the I.A.A. had reasoned as follows (at 139-140 [81(d)]):
The IAA then turned its attention to the first respondent's claim based upon his association with the Arab community. The IAA accepted that he was an Arab and, having regard to country information (including the DFAT report), that there is a high level of societal discrimination against Arabs which can lead to unfair treatment, in areas such as employment and access to housing and services (see [32]). It also noted DFAT's view that Arab Iranians who do not come to the attention of the authorities are subject to only low levels of adverse attention but that this "risk increases dramatically for Arabs who attempt to publically [sic] assert cultural or political rights". The IAA concluded at [35] that, putting aside the impermissible new information, the first respondent had not otherwise claimed that he had participated in any political protests in the past and that his profile was not one which would attract adverse attention. Accordingly, there was no real chance of him facing serious harm on account of him being an Arab.
The appellants contended that the foregoing reasoning was relevantly identical to the findings of the I.T.O.A. decision maker here.
43 The Full Court decided that the I.A.A. had erred in so reasoning because it had failed to ask why the applicant in that case had not practiced his religion more extensively. It said at 140 [82] as follows:
Having regard to these findings by the IAA (which did not depend on any of the new information which was discarded by the IAA), in the light of S395 the IAA should have asked why the first respondent had not in the past practised his religion more extensively or been more politically active and, moreover, why he would not alter his past behaviour if he were returned to Iran. The IAA needed to inquire, and make relevant findings, as to whether this was because of the very harm which the IAA accepted confronted more prominent and active religious and political proponents. As McHugh and Kirby JJ observed in S395 at [43] (to similar effect, see Gummow and Hayne JJ at [82]):
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
(Emphasis in original.)
44 The Full Court's reasoning, it was said, applied here.