Kalm v Administrative Appeals Tribunal

REASONS FOR JUDGMENT 1 This is an application for mandamus and certiorari, pursuant to s 39B of the Judiciary Act 1903 (Cth), in respect of a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 21 February 2013. In that decision, the Tribunal affirmed a decision made on 14 March 2012 by a delegate of the respondent Minister, in which the applicant was refused a working holiday visa. That refusal was done, and the Tribunal's decision was made, under s 501(1) of the Migration Act 1958 (Cth) ("the Act"). The decision of the Tribunal was a "privative clause decision" within the meaning of Part 8 of the Act, the presently relevant aspect of the Court's jurisdiction being preserved by s 476A(1)(b) of the Act. 2 The applicant is a citizen of Estonia, who was aged 32 years at the time of the Tribunal's decision. He arrived in Australia on 21 October 2009, and was granted a 12-month working holiday visa. On the expiry of that visa, the applicant applied for a further working holiday visa, and was granted a bridging visa pending the determination of that application. The application was refused on 14 March 2012 because, in the words of the Tribunal, "it had come to the Minister's attention that [the applicant] had been convicted in Estonia for a number of offences for which he was sentenced to a total of [seven] years imprisonment". The view was taken that the applicant did not pass the "character test" within the meaning of s 501(6) of the Act, and there was in the Tribunal, and there remains here, no challenge to that conclusion. The Tribunal had to consider the matter afresh, of course, but it did so in the context in which the applicant accepted that he did not pass the character test. The issue before the Tribunal, therefore, related to the discretionary refusal of the applicant's visa application under s 501(1) of the Act, given that he did not pass the character test. 3 In the present proceeding, there is one respect only in which the Tribunal's decision is challenged. Otherwise, it is not suggested that the grounds and circumstances by reference to which the Tribunal acted, and the conclusions which it reached in relevant respects, were not properly available to it as a matter of jurisdiction. 4 In order to understand the applicant's point in the present proceeding, I should develop further the obligations which fell upon the Tribunal when exercising the power for which s 501 of the Act provides. Subsection (1) of that section provides as follows: (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Subsections (1) and (2A) of s 499 of the Act lie at the centre of the applicant's case, and provide as follows: (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. …. (2A) A person or body must comply with a direction under subsection (1). 5 On 25 July 2012, the responsible Minister gave "Direction No. 55" ("the Direction") under s 499(1) of the Act. Provisions of the Direction which are relevant to the present case include the following: 6.1 Objectives (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. (2) Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case. (3) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499. …. 6.3 Principles …. (6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused. …. 7. How to exercise the discretion (1) Informed by the principles in paragraph 6.3 above, a decision-maker: a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. 8. Taking the relevant considerations into account (1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved. (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations. …. 11. Primary considerations - visa applicants (1) In deciding whether to refuse a person's visa, the following are primary considerations: a) Protection of the Australian community from criminal or other serious conduct; b) The best interests of minor children in Australia; c) Whether Australia has international non-refoulement obligations to the person. …. 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; c) The impact of the person's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child; d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the child; f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct. …. ANNEX B - Interpretation …. Minor is defined in section 5 of the Act as a person is who [sic] less than 18 years old. 6 At the time of the Tribunal's decision, the applicant's wife was about eight and a half months' pregnant. It had been submitted to the Tribunal on behalf of the applicant that his unborn child came within the meaning of "minor children in Australia" in cl 11(1)(b) of the Direction, and that the best interests of that unborn child were, therefore, "primary considerations" for the purposes of the Direction. 7 In rejecting that submission, the Tribunal referred to cl 11.2(4) of the Direction and continued: It should be immediately apparent that all of the considerations referred to in subparagraph (4) refer to a child that has a separate existence from its mother. I dealt with similar considerations in Schuster-McFadyen and Minister for Immigration and Citizenship [2011] AATA 547 at [53] - [62] when dealing with the Convention on the Rights of the Child. I have not altered my opinion about that. To attempt to apply the above factors where the child is yet to be born would be purely speculative. That cannot be correct. Furthermore, as I said in Schuster-McFadyen, it does not mean that consideration ought not be given to a pregnant spouse. However this fact should not be considered under the primary considerations in the Ministerial Direction. It properly falls within other considerations. In the submissions now made on behalf of the applicant, it is contended that this paragraph involved jurisdictional error, in the sense that, once it be held (as it was submitted it should be) that the interests of the unborn child were primary considerations within the meaning of the Direction, the Tribunal failed to comply with its obligation arising under s 499 of the Act, thereby providing a basis for the grant of mandamus. 8 As appears from the extract set out above, the Direction picks up the definition of "minor" in s 5 of the Act, namely, "a person who is less than 18 years old". As used in the Act (both in s 5 and elsewhere), the word "minor" is a noun. As used in cl 11(1)(b) of the Direction, the word is an adjective. However, the sense of the expression "minor children" in the Direction is clear: it means children less than 18 years of age. The word "child" is not defined in the Direction. Neither, at least relevantly to the present question, is it defined in the Act. But it must also be said that none of the many occasions upon which that word is used in the Act could include within its connotation an unborn baby. In my view, on a natural reading of cl 11(1)(b) of the Direction, the expression "minor children" does not encompass an unborn baby in its mother's womb, both in the sense that such a biological entity is not a "child" in normal parlance and, to pick up the definition of "minor" in the Act and the Direction, in the sense that it is not a "person". 9 It is submitted on behalf of the applicant, however, that the court should take account of the Convention on the Rights of the Child ("the Convention") to which Australia is a party. In the Convention "a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is obtained earlier". Although there is no presently relevant distinction between this statement of what it means to be a "child" and the definition of "minor" in the Act, the preamble to the Convention contains the following passage: BEARING in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth" …. It is submitted on behalf of the applicant that the qualifier "before as well as after birth" informs the meaning of "child" in the Convention, and, from there, likewise informs the scope of the "minor children" provisions of the Direction. 10 Counsel for the Minister accepted that cl 11.2 of the Direction should be interpreted consistently with the Convention. He drew attention to Art 3.1 of the Convention, which provides: 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 expression "the best interests of the child" finds substantial reflection in cl 11(1)(b) of the Direction but, in the present context, recourse to this formula only begs the question. It assumes that there is a child in the relevant factual setting whose best interests arise for consideration. The correctness of that assumption is, of course, the very question which arises on the present application. 11 Thus the debate, as reflected most obviously in the written outline filed on behalf of the Minister, shifted to the question of the meaning of "child" in the Convention. For his part, the applicant made the submission to which I have referred at the end of para 9 above. To resolve whatever ambiguity there might be in the Convention, I was invited by counsel for the Minister to have recourse to a publication by Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (3rd ed 2007). Counsel for the applicant resisted that suggestion, invoking in that regard Art 31 of the Vienna Convention on the Law of Treaties. I was, therefore, being led from what was an uncomplicated legal question - that arising under cl 11(1)(b) of the Direction - into the complexities and sensitivities of international law. I am not persuaded that such a journey is either necessary or desirable on the present occasion. 12 Unlike an earlier direction under s 499 of the Act, the Direction does not refer to, or purport to give effect to, the Convention. As mentioned above, the Minister accepted that cl 11.2 of the Direction should be interpreted consistently with Art 3.1 of the Convention, but the present case is, nonetheless, an unsatisfactory vehicle for the determination of the much larger, and more difficult, question of whether the Convention itself applies to unborn children. Because of the clarity with which the answer to the question of construction arising under the Direction presents itself to me, I see no need to enter upon the issue of the scope of the Convention. 13 While I note that the judgment of Griffiths J in SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459, to which I was referred by counsel for the Minister, is consistent with the view I expressed in para 8 above, that judgment was, relevantly, concerned with the meaning of the Convention: see [2012] FCA 1459 at [28]. As I have explained, I would prefer to decide the present case without recourse to the Convention. 14 For the above reasons, the applicant has not made good his case that the decision of the Tribunal involved any such error as would entitle him to mandamus or certiorari. The application will be dismissed. Following the conventional course, I shall require the applicant to pay the Minister's costs, but, lest there be some circumstance of which I am unaware that bears upon the appropriateness of such a requirement, I shall stay the operation of that order for 14 days, during which time the parties will have liberty to apply. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.