Hui v Minister for Immigration and

The Tribunal's Reasoning 5 The Tribunal set out in its reasons much of the detail of the applicantÕs criminal record. It noted that the sentences in each of the three major incidents were for the minimum period upon which a deportation order could be based. Nevertheless, it observed that the offences had to be regarded as serious in each case and pointed to a very high risk of recidivism. The Tribunal referred to the warnings which the applicant had received and his disregard of those warnings. The Tribunal expressed the view that there was a high risk that the applicant would re-offend. The Tribunal was not satisfied with the applicantÕs assurances that his behaviour in the future would be markedly different from that in the past. Part of the applicantÕs case before the Tribunal was that his brother would supervise him. The Tribunal decided not to place any reliance upon the influence of the applicantÕs brother as being likely to keep him out of trouble. It gave its reasons for reaching that conclusion. The Tribunal considered other possible sources of rehabilitation. It also had consideration to the following factors: á the applicantÕs future employment prospects; á the applicantÕs contribution to the Australian community; á the fact that the applicantÕs brother would not appear to suffer any particular hardship if the applicant were deported; á the fact that Ms Haffenden would not be caused any hardship by the applicantÕs deportation; and á the fact that the applicant would not suffer any unusual hardship if deported, particularly as he had some family contacts in Auckland. 6 The Tribunal then turned to the factor upon which the applicant principally relied i.e. the interests of his two children. I set out below its findings and reasoning in that regard: Ò30. There is really only one positive factor militating against the execution of the deportation order and it is the matter upon which the applicant principally relies. It is clear from TeohÕs case ((1995) 128 ALR 353) that in all actions concerning children, the best interests of the child are to be a primary consideration. Mr Hui obviously had regular contact with his children when they were born in 1992 and 1994 respectively. In 1995, during the separation, that contact diminished. In 1996, while he was in prison, he would telephone the children and would send Christmas cards and money for gifts at Christmas. Since February 1997, however, he has not seen either Ms Haffenden or the children. It is true that for some of that time he has been in prison. Nevertheless, for a period of six months prior to the commencement of his latest sentence, he did not see the children. The only reason he gave for this was that Ms Haffenden was unable to afford the expense of travelling the short distance from Budgewoi to Wyong. I consider that the applicant was less than frank in putting this gloss on the break in contact. 31. It has to be said that Mr Hui has had little or no contact with his children in the past two years. Ricky is at an age when he now goes to school. Mr Hui does not know which school he attends. He does not even know the familyÕs address. As long ago as September 1996, Ms Haffenden indicated to a departmental officer that she believed the children were quite happy and that they would not miss the applicant in the event of his deportation. 32. This is consistent with the fact that she was not called to give evidence in these proceedings. Mr HuiÕs counsel said that he took responsibility for not calling Ms Haffenden. However, in the light of Mr HuiÕs evidence that he did not wish to see his former partner again, and that she would revive unhappy memories, it is unlikely that he would have instructed his counsel to make arrangements for her to attend. It was suggested that because this matter was brought on relatively early there had been no opportunity to arrange for Ms Haffenden to be called. I do not accept this. I indicated in the course of the hearing that if the applicantÕs counsel felt that the presentation of his case was in any way impaired, then an adjournment could be requested. Counsel for the respondent also indicated that it would consent to an adjournment for this purpose. The offer was not accepted. I consider that I am entitled to infer that if Ms Heffenden had given evidence it would not have been to the benefit of the applicantÕs case. 33. Accordingly, there is no real evidence before me of the attitude of the children, of their present welfare, or indeed of their Òbest interestsÓ. Counsel for the applicant submitted that it was axiomatic that separation of a father from his children was not in the best interests of the child. I do not accept that this is a rule of universal application. Although clearly Mr Hui believes that his presence would be beneficial to his children, his beliefs have not been matched by deeds. To imagine what relationship the applicant would have with his children, or they with him, were he to be released, is extremely speculative. Mr Hui is driven by a desire for his children. This desire may not necessarily reflect the best interests of those children. When he lived with their mother, he repeatedly and seriously assaulted her. What effect this may have had on the attitude of the children towards their father has been left unexplored. It may well be that the present separation which has existed for the past two years might best serve the interests of the children if it were extended permanently. There is no evidence that the welfare of the children is anything other than satisfactory in their present situation. It would be quite arbitrary to decide that their best interests would be served by altering these arrangements. One may well ask, from a practical point of view, how these arrangements could be altered. Mr Hui suggested that the children might come to live with him at his brotherÕs house. In the absence of any other evidence, this would be quite a fanciful suggestion. On the basis of this dream, I would not be prepared to hold that the best interests of the children would be served by such an arrangement. 34. In any event, the best interests of the children must be taken into account along with other primary considerations. Weight has to be given to competing considerations, in determining whether the deportation order should be executed. The possible best interests of the two children are, in my view, the only factor from which the applicant can derive comfort. All other factors set out in the Ministerial deportation policy must lead to a decision adverse to the applicant. On the whole, therefore, and considering the purpose of deportation as set out in that policy, namely 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, there can, in my view, be only one result of this review. The decision under review is affirmed.Ó

Grounds of the Appeal 7 Although the applicant was represented by counsel before the Tribunal he was unrepresented at the hearing of the appeal in this Court, but filed written submissions. Not surprisingly, nearly all of those submissions went to the merits or otherwise of whether he should be deported. This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (Òthe AAT ActÓ) which limits the appeal to a question of law. The merits of the deportation order are for the Tribunal to decide, not this Court. Accordingly I shall disregard so much of the applicantÕs submissions as go to the merits of the TribunalÕs decision. 8 The essence of the applicantÕs legal complaint can be stated in the following terms, namely that: á the Tribunal was required to take into account and give real and effective consideration to the best interests of the applicantÕs children; á in this case the Tribunal should have made further inquiries to obtain information relevant to the interests of the children and, in particular, of the interests of the individual children; and á the Tribunal had only considered the interests of the applicantÕs children in a Ògeneral or abstract fashionÓ.

1. Matters arising other than under the Ministerial Direction of 21 December 1998 (Òthe Ministerial DirectionÓ) 9 The Tribunal may have overstated its obligations in relation to the children in paragraph 30 of its reasons in which it cites Teoh. However, as discussed below, there is a source for such obligations other than Teoh, namely the Ministerial Direction which in turn, so I infer, probably had its genesis in Teoh. I think that the Tribunal read too much into Teoh. Teoh is not authority for the proposition that in all actions concerning children, the best interests of the child are to be a primary consideration. That would be to incorporate the United Nations Convention on the Rights of the Child (Òthe ConventionÓ) into our municipal law. The High Court explained in Teoh that ratification of the Convention was a positive statement by the Executive that it and its agencies would act in accordance with the Convention. That statement founded a legitimate expectation, in the absence of statutory or executive indications to the contrary, that administrative decision-makers would act in conformity with the Convention. The legitimate expectation could be displaced by such statutory or executive indications. In the present matter it can be seen that the Tribunal considered itself obliged to act in conformity with the Convention and to treat the best interests of the applicantÕs children as a primary consideration. If it can be seen to have done so in fact, there can be no basis for a complaint of any lack of procedural fairness of the type principally discussed in Teoh. But if it did not do so, it fell into error of law. If notice must be given of a deliberate decision not to act in conformity with the Convention (as part of the process to displace the legitimate expectation) then, if no such notice has been given, an unintentional failure to act in conformity with the Convention must also, in my view, amount to error of law. There was no suggestion that any such notice had been given. 10 The applicant also complains that the Tribunal erred in law by failing to initiate further inquiries in relation to the best interests of the applicantÕs children. In written submissions filed by the applicant this was expressed as being part of his overall complaint of error of law. My view of the authorities is that a failure to make inquiries, in circumstances where a Tribunal accepts an obligation to make its decision in conformity with the Convention, has the potential to constitute error of law. One basis for such potential error of law would seem to be that it infected the decision to the extent that it became unreasonable in the administrative law sense Ð see Luu v Renevier (1989) 91 ALR 39 at 50 (Full Court). There is Full Court authority in this Court for the proposition that s 44(1) of the AAT Act calls into play the general common law principles of administrative law: Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 134 ALR 51 at 53 (per Sheppard J, with whom Tamberlin and Lehane JJ agreed); Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 199-200 (a case which concerned what was relevantly the analogue in the Act of s 44(1) of the AAT Act). However, I propose, initially, to deal with the question of whether further inquiries should have been initiated as part of the consideration of whether the Tribunal did in fact treat the best interests of the applicantÕs children as a primary consideration. 11 I must acknowledge that I had some difficulty in reaching a decision on this point. I have endeavoured, in accordance with the well-known authorities, not to construe the TribunalÕs reasons minutely and finely with an eye keenly attuned to the perception of error. But I have reached the conclusion that the Tribunal did not really get to grips with the best interests of the children. My distinct impression is that the adversarial aspect of the decision-making process substantially displaced the inquisitorial role of the Tribunal. An example of this was the manner in which it treated the applicantÕs failure to call Ms Haffenden to give evidence. I think that it is important to bear in mind that, in this particular area of concern, it is not the applicantÕs interests which are determinative. It is the best interests of his children which should have been a primary consideration in the context of the proposed deportation. That is, where did the best interests of those children lie? Was it in their best interests (considered collectively at this stage) that the applicant not be deported or was it in their best interests that he be deported? In my view the Tribunal did not really decide, even implicitly, what those interests were. My impression is that the Tribunal took the view that it had not been provided with enough information one way or the other to make that assessment. At the risk of appearing to break the rules against nit-picking, I refer to the following extracts from paragraph 33 of the TribunalÕs reasons: á Ò33. Accordingly, there is no real evidence before me of the attitude of the children, of their present welfare, or indeed of their Òbest interestsÓ.Ó á ÒTo imagine what relationship the applicant would have with his children, or they with him, were he to be released, is extremely speculative.Ó á ÒThis desire [the applicantÕs desire for his children] may not necessarily reflect the best interests of those children.Ó á ÒWhat effect this [repeated and serious assaults by the applicant on Ms Haffenden when he lived with her] may have had on the attitude of the children has been left unexplored. It may well be that the present separation which has existed for the past two years might best serve the interests of the children if it were extended permanently.Ó 12 I would add two further comments in that regard. First, the information to which the Tribunal refers in paragraph 31 (Ms HaffendenÕs indication that the children were quite happy and would not miss the applicant in the event of his deportation) was nearly 2½ years out-of-date. Secondly, in paragraph 34 of its reasons, the Tribunal makes reference to ÒThe possible best interests of the two childrenÓ. 13 The matter can be further tested in this way. In paragraph 33 of its reasons, it can be seen that the Tribunal concerned itself (at the suggestion of the applicant) with a possible change in the living arrangements of his children. It was fully entitled, in all the circumstances, to reject the suggestion, as it did. However, there was no consideration whatsoever of the possibility that it might be in the future interests of the children for them to have the opportunity of renewed access to their father as they grew older. Inquiries might result in the conclusion that such an opportunity would not be in their best interests at all. But the Tribunal simply did not address that possibility. It certainly disbelieved the applicantÕs reasons for the cessation of such access in the past, but the question for consideration, in the context of deportation, was where did their best interests lie in the future? It would be no answer to say that the Tribunal does not have to make the applicantÕs case for him, [Luu v Renevier at 45], particularly as he was represented by counsel who did not ask the Tribunal to initiate any further inquiries and who decided not to call Ms Haffenden. The applicantÕs claims are to be understood as being made on behalf of the children Ð see Mason CJ and Deane J in Teoh at 291. In my opinion, the Tribunal in this matter cannot be said to have treated the best interests of the children as a primary consideration, because it did not make any finding about what those best interests were in the context of the proposed deportation. 14 The course which the applicant chose seems to have led the Tribunal to the conclusion that it did not have sufficient evidence to decide where the best interests of the children lay. In that situation, it had ample statutory powers to obtain the information readily. I do not have to decide whether it was unreasonable in the administrative law sense for the Tribunal not to have initiated inquiries. I say simply that the process has resulted in a situation in which the best interests of the children were not ascertained and were thus not a primary consideration. No notice having been given to displace the legitimate expectation that the Convention would be observed, the Tribunal fell into an error of law. I now turn to the question of the requirements of the Ministerial Direction.

The Ministerial Direction 15 This was not a matter raised by or on behalf of the applicant. Quite properly, the respondentÕs legal advisers drew it to my attention. It can be seen from the TribunalÕs reasons (see paragraph 17 and onwards) that it gave consideration to a Ministerial policy statement published by the respondent in November 1992 with effect from 24 December 1992 (Òthe PolicyÓ). The Policy was not a general direction under s 499(1) of the Act. Section 499(1) of the Act provides as follows: ÒA person or body having functions or powers under this Act shall perform those functions and exercise those powers in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.Ó 16 On 21 December 1998 the respondent gave a direction under s 499 which I have described as the ÒMinisterial DirectionÓ. It was expressed as having been made under that section. As I have mentioned, the Tribunal's decision was given on 28 January 1999. In its reasons for decision, the Tribunal did not refer to the Ministerial Direction. It referred to the Policy. I think it might be reasonable to infer that the Tribunal was unaware of the existence of the Ministerial Direction given, as it was, only about five weeks earlier. It is common ground that the Ministerial Direction applied to the Tribunal when it made its decision. 17 A similar set of circumstances arose in the case of Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 492, a decision of Emmett J. In that case his Honour compared the relevant provisions of the Ministerial Direction on the one hand and the Policy on the other. His Honour rejected the applicantÕs primary contention that the mere failure of the Tribunal to advert to the Ministerial Direction was sufficient ground to set aside the TribunalÕs decision. His Honour held that the decision would not be bad unless it could be demonstrated that it was made otherwise than Òin accordance withÓ the Ministerial Direction (see paragraph 17). I respectfully agree with him on both points. His Honour saw the significant difference between the two documents as being that the Ministerial Direction imposed an obligation on a person performing a function or exercising a power to which s 499 applies, whereas the Policy, at best, was a matter which should have been taken into account by the Tribunal (see paragraph 27). His Honour then analysed the Tribunal's decision and reasons in that matter to determine whether it had exercised its functions or powers in accordance with the Ministerial Direction. He found that it had. As his Honour noted (at paragraph 22 of his reasons) the terms of the Ministerial Direction contemplate a balancing exercise between the primary considerations (referred to in paragraphs 5 and 6 and considered in detail in paragraphs 7 to 20 of the Ministerial Direction), on the one hand, and the other considerations which are relevant in any particular case (including the degree of hardship which may be suffered by the potential deportee or other Australian citizens or permanent residents), on the other hand. In Rokobatini the applicant argued that the Tribunal, having failed to have regard to an alleged detrimental effect (loss of an opportunity of rehabilitation) which deportation to Fiji would have had on him, had ignored any hardship which might have been reasonably expected to be suffered by the applicant as a deportee. His Honour found, on the facts, that the Tribunal had taken into account the degree of hardship which might reasonably be expected to be suffered by the applicant. It had not had regard specifically to the lack of opportunity for rehabilitation in Fiji, and nor was it under any obligation to do so. His Honour found that in that regard there was no relevant substantial difference between the Policy and the Ministerial Direction. Each contained reference to taking into account the degree of hardship which might reasonably be expected to be suffered by the potential deportee. It is in that aspect, that I consider Rokobatini is to be distinguished from the present matter. In the present matter, the focus is on how the question of the best interests of the applicantÕs two children was dealt with by the Tribunal. The Policy was nowhere near as specific on this point as the Ministerial Direction. In fact, one searches in vain in the Policy for specific mention of how the best interests of the potential deporteeÕs children are to be considered. That may not be so surprising when one remembers that the statement containing the Policy was issued nearly two years before Teoh was decided. Paragraph 6 of the Ministerial Direction makes it clear that in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children are one of two primary considerations. It was not suggested that, on the facts of the present matter, there was no parental relationship between the applicant and his children. Paragraphs 16 to 20 of the Ministerial Direction instruct the Tribunal about the GovernmentÕs view as to how the Tribunal is to perform its functions and exercise its powers when considering the best interests of children. I set out below some relevant extracts from those paragraphs: Ò16. It is the GovernmentÕs view that the decision maker must determine the best interests of any children aged less than 18 years who are in a parent-child or other close relationship with the potential deportee. . . . Decision makers should have due regard to the GovernmentÕs view in this respect. 17. It is the GovernmentÕs view that where there are two or more relevant children the best interests of each child should be considered separately and also together with each other and with other members of the family. It should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate that the potential deportee should not be deported, but that the best interests of another child may point towards deportation. Decision makers should have due regard to the GovernmentÕs view in this respect.Ó 18 Mr R Beech-Jones, counsel for the respondent, submitted that even though the Tribunal had assessed the matter against the (former) Policy, nevertheless it had acted Òin accordance withÓ the Ministerial Direction. Mr Beech-Jones referred me to the reasoning process shown in paragraphs 30 to 34 of the Tribunal's reasons, which I have set out above. I agree with him so far as the other main primary consideration (expectations of the Australian community) and the other considerations referred to in the Ministerial Direction are concerned, but not in respect of the specifics of what it was required to do in relation to the best interests of the children. 19 The interaction of s 144(1) of the Act and the paragraphs of the Ministerial Direction, extracts from which I have set out above, required the Tribunal to make its decision in accordance with the directions so expressed. The relevant directions are that the Tribunal is Òto have due regard to the GovernmentÕs viewÓ that: á the decision maker must determine the best interests of any children in the category described; á the best interests of each child should be considered separately and also together with each other and with other members of the family; and á it should not be assumed that the interests of each child will coincide. 20 There is nothing in the TribunalÕs reasons to indicate that it considered taking such an approach but chose not to do so. That is, there is nothing to show whether the Tribunal considered that this was a case where it was inappropriate for it to embark on and make a determination of what were the best interests of the applicantÕs children, or that it was one where it was appropriate not to consider their interests separately but to assume that the interests of each child would coincide. 21 Can it be said, however, that the Tribunal (unwittingly) Òhad due regard to the GovernmentÕs viewÓ in relation to the three matters which I have set out above? I think that the answer is no. I have already found that the Tribunal neither expressly nor implicitly determined where the best interests of the children lay. In summary, it took the view that it did not have sufficient evidence on that question and that too much speculation would be involved. It can be seen to have had no regard to the GovernmentÕs view that, there being two children, it should consider the best interests of each child separately and should not assume that the interests of each child would coincide. It gave no consideration to that view or those matters. In so conducting itself, I consider that the Tribunal fell into error of law. This was doubtless due to it being unaware of the Ministerial Direction. 22 I have considered whether it would be futile to set aside the decision and remit the matter to be heard and decided again. In that context, it is to be noted that in paragraph 34 of its reasons the Tribunal quite firmly expressed the view that competing considerations outweighed the best interests of the children. The respondent submitted that in that paragraph of its reasons the Tribunal had assumed, for the purposes of analysis, that the childrenÕs best interests were served by setting aside the deportation order. That may be to read too much into the sentence which reads: ÒThe possible best interests of the two children are, in my view, the only factor from which the applicant can derive comfort.Ó 23 But even if the respondent is correct in that assessment, the reference to Òpossible best interestsÓ simply underscores the fact that the best interests of the children were not identified one way or the other. On balance, I have come to the conclusion that it is not sufficiently obvious that setting aside the decision and remitting the matter to be heard and decided again would be an exercise in futility.

Conclusion 24 For the foregoing reasons, the appeal will be allowed, the decision of the Tribunal will be set aside and the application to it will be remitted for further hearing and determination according to law. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate: Dated: 21 July 1999 The Applicant was not represented

Counsel for the Respondent: Mr R Beech-Jones

Solicitor for the Respondent: Australian Government Solicitor