Kaur v Minister for Immigration and Multicultural and Indigenous Affairs

the court: 1 The appellant is the wife of Charnjit Singh ('the visa applicant') who unsuccessfully applied for a class UF subclass 309 spouse (provisional) visa under the Migration Act 1958 (Cth) ('the Act'). The appellant was the visa applicant's sponsor. The first respondent's delegate refused the application on 25 May 2004. That decision was affirmed by the Administrative Appeals Tribunal ('the Tribunal') on 12 May 2005. An appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against the Tribunal's determination to uphold the delegate's decision was dismissed by a single judge of the Court (North J) on 18 November 2005. 2 At the hearing of the appeal, the first respondent submitted that the correct title of the Minister should be 'Minister for Immigration and Multicultural Affairs' that is, deleting reference to 'Indigenous'. This is a result of changes to her portfolio coming into effect on 27 January 2006. However, at all relevant times to this proceeding, the first respondent's title has included the reference to 'Indigenous' and therefore these reasons will maintain the reference. 3 The sole ground of appeal is that the learned primary judge erred in failing to hold that the Tribunal had committed jurisdictional error on one or all of three sub-grounds. The first is that it had not 'given proper genuine and realistic consideration' to the best interests of the appellant's children, who are Australian citizens. Secondly, it is contended that in so doing it failed to take into account a relevant consideration and/or thirdly, that it asked itself a wrong question. As pressed on the hearing of the appeal the ground is directed to the issue of whether the Tribunal gave proper consideration to the best interests of the children of the appellant and the visa applicant because it failed to weigh the competing considerations involving the best interests of the children. 4 The relevant circumstances were set out in the reasoning of the Tribunal and summarised in the reasons for judgment of North J as follows: '3 The critical factual elements are that, in March 1993, the visa applicant was convicted of rape and assault occasioning actual bodily harm and sentenced to eight years jail by the Supreme Court of South Australia. Then, in June 1994, he was convicted of assault occasioning actual bodily harm and sentenced to 12 months imprisonment. He served just over 3 years of these terms, was released on parole and voluntarily returned to India, the country of which he is a national. As a result of being sentenced to more than 12 months imprisonment, the visa applicant did not pass the character test required for the grant of a visa: s 501 Migration Act 1958 (the Act). …' Additionally, there are circumstances pertaining to the visa applicant's family which are also of critical relevance. The visa applicant married the appellant in India on 22 March 1998. He had served just over three years of his prison sentences and was released and immediately departed from Australia on 15 August 1997. On 18 November 1998, the appellant's and visa applicant's daughter, Shireen, was born in Melbourne. On 26 June 2001, their son, Inderveer, was born in India. Inderveer suffers from cerebral palsy and has been severely disabled since birth. He was registered as an Australian citizen by descent on 22 February 2002. The application for the spouse (provisional) visa was lodged by the visa applicant on 5 February 2003. 5 The Tribunal commenced its reasoning by stating that the only proper decision on the facts of the case relating to the visa applicant's criminal record was that he was a person who was not of good character and did not pass the character test within the meaning of s 501 of the Act. The Tribunal noted that, consequently, what was required of it in accordance with s 499 of the Act was to decide the issue of whether or not to relieve the visa applicant from the consequences of the adverse character determination. The exercise of that discretion is a matter addressed in Ministerial Direction No. 21 ('the Direction') containing comprehensive policy directions. 6 The Direction, which was made on 23 August 2001, requires decision-makers to have due regard to the importance placed by the Government on three primary considerations and also to 'adopt a balancing process which takes into account all relevant considerations'. The primary considerations are identified as follows: 'PRIMARY CONSIDERATIONS 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) 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.' 7 In relation to the first 'primary consideration', namely, the protection of the Australian community, and members of the community, [2.4] of the Direction provides: '2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.' Paragraph 2.5 requires consideration of the seriousness and nature of the conduct; the likelihood that the conduct may be repeated (recidivism); and whether visa refusal may prevent or discourage similar conduct (general deterrence). 8 In relation to the first primary consideration, the Tribunal considered the visa applicant's convictions for rape and assault on 30 December 1991 and for assault on 26 February 1993. It found each criminal incident to be 'extremely serious'. It found it impossible to say, if confronted with similar situations in the future, the visa applicant would not offend again. Further it was found that visa refusal may well 'prevent or discourage' similar behaviour by prospective offenders. 9 The Tribunal then turned to consideration of the third primary consideration, the best interests of the children. In that regard, the Direction relevantly provides: '2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17. 2.14 Where there are two or more relevant children, 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 the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation. 2.15 In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to: (a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or (b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 2.16 When considering the best interests of the child, decision-makers should have regard to the following: (a) the nature of the relationship between the child and the non-citizen; (b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct; (c) the age of the child; (d) whether the child is an Australian citizen or permanent resident; (e) the likely effect that any separation from the non-citizen would have on the child; (f) the impact of the non-citizen's prior conduct on the child; (g) the time (if any) that the child has spent in Australia; (h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia; (i) any language barriers for the child in the probable country of future resident, but taking into account the relative ease with which younger children acquire new languages; and (j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.' 10 The Tribunal commenced this aspect of its reasoning by finding that the appellant and both children are Australian citizens who have been living with a friend and his wife in Victoria for three and a half years. The friend gives considerable assistance to the appellant in caring for her two children. 11 The Tribunal then turned to a report from Yooralla Society of Victoria dated 18 October 2004 and oral evidence from an occupational therapist and co-author of the report Denise Kasperczyk in relation to the condition of cerebral palsy suffered by Inderveer. It set out excerpts from the report which made apparent that Inderveer could not sit without support, was immobile and had little use of his upper limbs. It outlined the assistance which he obtained in Melbourne. Further it stated that such level of assistance would not be available to Inderveer should he return to India. 12 The Tribunal then turned to the evidence of other health professionals who had also provided written reports. 13 In relation to these matters, the first respondent made concessions. She accepted that the standard of medical and educational facilities in Australia would be a higher standard than in India. She also accepted that the best interests of the children would be met by having both parents available to them during their upbringing and that the best environment for this would be Australia. 14 Reference was also made to a spinal condition suffered by the appellant which made it difficult for her to handle Inderveer on her own. 15 The Tribunal did not accept that the appellant had believed that the visa applicant's offending conduct, convictions and imprisonment would not provide an impediment to his return to Australia. It found that both the appellant and the visa applicant took a calculated risk on this issue which in the event, as a consequence of Inderveer's congenital disabilities, has turned into 'something of a disaster'. It said that if the visa applicant's visa is refused, the appellant has a difficult choice, having to choose whether to risk Inderveer's future health and her current financial security by returning to India to resume cohabitation with the visa applicant or accepting that her relationship with him will be severely curtailed by her continuing to reside and care for her children in Australia. The Tribunal stated it had no doubt she would choose to continue living in Australia. 16 The Tribunal then turned to the second of the primary considerations, 'the expectations of the Australian community'. It said that '[O]n the one hand we have a serious criminal offender who has committed an abhorrent sexual attack upon a young woman, still a child in the eyes of the law, and has made a vicious premeditated joint attack with others upon another man'. The Tribunal said that the visa applicant was an unsatisfactory and evasive witness and that it was far from satisfied he generally accepted full moral responsibility and culpability for his conduct. 17 The Tribunal then said that on the other hand he has fathered two children, one of whom is severely disabled. Additionally, his wife (the appellant) suffers a back condition. The Tribunal said that the appellant's essential need for the visa applicant's presence was to have an extra pair of hands and to have his general support in assisting with the hardship that the son's disability imposed upon her physically and also emotionally. Nonetheless, the Tribunal concluded that on balance the Australian community would expect that the visa application should not succeed. 18 The Tribunal then turned to 'other considerations'. It referred to the 'obvious hardship to the visa applicant' which 'would appear to be his deprivation of continuous companionship and wifely support from his wife and the society of his two children'. However, there was no evidence that he provided his family with financial support. It was accepted he had trade qualifications of a kind currently in demand in Australia so that if he were admitted to Australia he could obtain employment and contribute to the costs of his family's needs. It regarded this as 'a fairly neutral fact'. In conclusion the Tribunal, after stating that it had considered the matter at some length, and that natural inclination and sympathies lay with Inderveer's condition and its impact upon his mother, said it remained unpersuaded that the discretion properly and fairly exercised should be in favour of the visa applicant. Therefore, it decided to affirm the decision under review. 19 It is the course of this reasoning which the appellant contends was devoid of the requisite weighing of the considerations relating to the best interests of the children. It is contended that not only is the weighing not articulated expressly but that it cannot be inferred from the reasons of the Tribunal. What is absent, it is contended, is an analysis of the primary considerations as competing considerations. 20 The appellant supports the submissions by reference to analysis of the kind which is described by Full Courts in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 and Long v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 610 and by a single judge in Nguyen v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 757. In Wan, the Full Court at [26] found error in the Tribunal's failure to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. At [31], the Full Court concluded that the Tribunal there did not treat the best interests of the children as 'a primary consideration' in its determination having, in particular, not described them as such anywhere in its written reasons for decision. In Long, at [53], Carr J (with whom Merkel and Hely JJ agreed) said that the respondent there did not get to the first step of the process of balancing the best interests of the appellant's children against other relevant considerations. In Nguyen, at [55], Lee J found that the Minister had been informed that it was open to her to find that a decision to cancel the visa held by the applicant there would have a detrimental effect upon the children and that such information may have distracted the Minister from the actual task which was to give primary consideration to what was in the best interests of the children. The respondents contend and we agree that the Tribunal's unambiguous consideration and finding that the best interests of the children weighed in favour of granting the visa to the visa applicant at issue in this present proceeding, sets this case apart from the decision under review in either Wan, Long or Nguyen. 21 The respondents rely upon the decision of the Full Court in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31. There it was held by Tamberlin, Kiefel and Emmett JJ that the Tribunal had accepted the proposition that the best interests of the child there would be to remain with her parents and that although that may have been a conclusion reached without analysis (such as that given to the issue in Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454) the Tribunal was entitled to approach the matter in that way. In the present proceeding, the Minister's concessions provided the same starting point. Of that, the Full Court in Sebastian said: '14. The starting point adopted by the Tribunal is one which reflects an assumption generally held by members of the Australian community, namely that in most cases a child's interests are best served by remaining with their parents. That view is a reflection of the various matters to which Allsop J referred to in Perez, relating to the various aspects of a child's development. It seems to us that there would be no rational basis for denying the Tribunal the adoption of that assumption, at least initially. As the community would recognise, there may be factors which are to be weighed against that assumption. This is such a case. That does not however mean that the interests of the child has not been regarded as a primary consideration.' Further, the Full Court accepted that in relation to all subsequent considerations, the Tribunal had considered matters, including those arising from [2.16] of the Direction, which operated to negative, to an extent, the conclusion that the best interests of the child would be served by being, in that case, with her father. The Full Court in Sebastian was of the view that the matters adverted to by the Tribunal also showed that it had in mind the requirements of the Direction which might apply to the circumstances of that case. It found that it was plain that the Tribunal was aware that the consideration of the best interests of the child was one of three primary considerations. 22 In accordance with the reasoning of the Full Court in Sebastian we are of the opinion that the reasoning of the Tribunal raised on this appeal is not devoid of the requisite weighing of the primary considerations in issue. It is quite apparent from the Tribunal's conclusion that the primary consideration of the best interests of the children was ultimately weighed in the manner required. The consideration by the Tribunal of 'the expectations of the Australian community' involved the weighing of the criminal record of the visa applicant and the distressing circumstances of his family situation because of the child Inderveer's severe disablement. The reference to the position of the appellant in the event the visa applicant's visa was refused, likewise, showed an advertence to the weighing which was required. The whole course of the reasons can only be accounted for by the progress of the exercise of weighing the primary considerations in issue. 23 We reject the contention that all the Tribunal member did was to tick off a series of separate boxes being the subjects dictated by the requisite paragraphs of the Direction and not relate one to the other. In our view the reasons of the Tribunal are simply not open to be understood in that way. 24 Section 501 of the Act empowers the first respondent to refuse to grant a visa to a person if the person does not satisfy her that they pass the character test. Once the Tribunal found that the visa applicant did not pass the character test it became the task of the Tribunal, as it correctly perceived, to consider whether its residual discretion could be exercised to relieve the visa applicant from the consequences of the adverse determination. Its conclusion that it was unpersuaded to do so was one which was reached after balancing the primary considerations with other issues raised by the Direction. In that process there was no jurisdictional error constituted by a failure to weigh those considerations. The appeal must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson, Jacobson and Lander.