NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187
95 NRFX involved a citizen of the United Kingdom whose visa was subject to mandatory cancellation under s 501(3A) of the Act. The applicant's visa was cancelled, and a delegate of the Minister refused to revoke the cancellation decision. The appellant lodged an application for review in the Tribunal, which set aside the delegate's decision and substituted its own, revoking the cancellation decision.
96 Subsequently, the Minister exercised his power under s 501BA(2) of the Act to set aside the Tribunal's decision and cancel the appellant's visa for the reason that the appellant did not pass the character test and that it was in the national interest to do so. The Minister noted that the appellant's family included the appellant's daughter with his partner and the appellant's daughter from a previous relationship.
97 Two questions were raised before the Full Court (at [34]):
The first is whether the Minister's decision or decision-making process would cause any breach of Australia's obligation under Arts 9 and 12 of the Convention. The second is whether, assuming that it would cause such a breach, it would be unreasonable for the Minister to fail to consider the breach or the prospect of such a breach in his assessment of the national interest for the purpose of s 501BA(2)(b) of the Act.
98 Derrington J held that there was no breach of Australia's obligation under Arts 9 and 12 of the Convention (at [104]) and also went on to consider whether the Convention was at all relevant to the Minister's decision-making process. Derrington J considered the impact of Plaintiff M1/2021 and held (at [156]) that:
The joint majority's statement in Plaintiff M1/2021 at 507 - 508 [20], as extracted above, was as emphatic as it was clear. As a statement of constitutional principle, it both reinforced parliamentary sovereignty and rejected the suggestion that the Executive might have the capacity to create rights or obligations in a domestic setting merely by deciding, of its own accord, to bind Australia to treaties and other international instruments, the rules and normative content of which otherwise find no direct expression in domestic law. As their Honours said, "[i]t is only Parliament that may make and alter domestic law". The necessary concomitant is that the unenacted content of treaties cannot operate "as a source of rights and obligations under domestic law".
99 His Honour concluded (at [169]) that:
The Minister in the present case was under no obligation to consider the terms of the Convention, or the impact of any actual or prospective breach of those terms, in assessing whether it was in the national interest that the appellant's visa be cancelled. It cannot be said that his decision was unreasonable on account of his omission to consider such matters.
100 As a matter of procedural fairness, the majority in Teoh decided that, if a decision-maker intends to make a decision inconsistent with the Convention, notice should be given to the persons affected, who should be given adequate opportunity to respond.
101 Plaintiff M1/2021 did not involve consideration of the Convention, but related to Australia's international non-refoulement obligations. The principles laid down in Plaintiff M1/2021 are not, of course, limited to non-refoulement obligations. As it was said (at [20]):
In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament. It is only Parliament that may make and alter the domestic law. The distinction also has significant consequences for discretionary decision-making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations: such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.
(footnotes omitted)
102 It is clear from Plaintiff M1/2021 that considerations which arise under an international treaty (or customary international law obligations of a similar nature) are not mandatory relevant considerations unless they are prescribed to have that nature under domestic legislation. As was said by Derrington J in NRFX (at [156]):
In the administrative law context, it was expressly identified that unenacted international obligations cannot amount to mandatory relevant considerations in the exercise of discretionary decision-making powers under statute in the absence of express specification or incorporation.
103 Plaintiff M1/2021 is clear in deciding that the decision-maker is under no obligation to consider the requirements set out under international conventions or treaties which are not the subject of domestic legislation because such unenacted conventions or treaties cannot give rise to "rights and obligations under domestic law".
104 NRFX was a case concerning the Convention and applied Plaintiff M1/2021 in those circumstances.
105 As Derrington J observed in NRFX, the decision in that case was whether the Convention "was at all relevant to the Minister's decision-making process", describing the fundamental issue as "whether a treaty, which has not been enacted into Australian domestic law, can have any bearing on the Minister's assessment".
106 As Derrington J described in NRFX (at [157]):
[I]t seems apparent that the majority of the High Court drew a bright line between the effect of those treaty rules and standards that have been incorporated by enactment into Australia's domestic law, and the effect of those that have not. The latter cannot function, either directly or indirectly, as a source of rights and obligations under domestic law. The majority did not seem to suggest that the issue lay only with such treaty obligations being treated as a "direct" source of rights and obligations: cf BNGP [130]. The cardinal constitutional principle to be observed is that it is for the Parliament and not the Executive to make and alter the domestic law. The majority's reasons eschew the suggestion that the Executive can do so indirectly. It would be somewhat unusual for the norms contained in an unenacted treaty to be ineffective to create rights and obligations directly in domestic law, but then to be recognised as having that effect indirectly by functioning as mandatory relevant considerations in the exercise of statutory powers.
(italics in original)
107 The notion that the provisions of an international convention or treaty are in force domestically only after the passing of domestic legislation is well-established and was so at the time of the decision in Teoh.
108 Decided against that background, the majority decision in Teoh was that procedural fairness required that, if a decision-maker proposed to make a decision inconsistent with the Convention, notice should be given to the persons affected, who should be given adequate opportunity to respond.
109 The status of the decision in Teoh is uncertain.
110 There has been a consistent move away from the principles of Teoh, but the decision has not been overturned. For example, in Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 89; [2021] FCAFC 141 (Ratu), Farrell, Rangiah and Anderson JJ said:
42 The doctrine of legitimate expectations has since been rejected by obiter dicta statements of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [25], [61]-[63], [81]-[83], [116]-[121] and [140]-[148], Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [65] and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [28]-[30].
43 In addition, to the extent that Teoh suggests as a general principle that the ratification of an international treaty gives rise to a presumption or expectation that the executive government will act consistently with the treaty, even in the absence of legislation adopting the treaty as part of domestic law, that reasoning was strongly doubted by a majority of the High Court in Lam at [95]-[96], [98], [120]-[121] and [147].
44 The High Court has not directly overturned Teoh. An earlier ratio of the High Court is not overturned by later dicta of the High Court: cf Viro v The Queen (1978) 141 CLR 88 at 151. Further, in Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200 at 207, 217 and Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1 at [3]-[4], the High Court firmly rejected the capacity of lower courts to adjudge its decisions to have been impliedly overruled.
Their Honours considered that the application of Teoh was limited to the Convention and did not apply to the International Covenant on Civil and Political Rights (at [47]).
111 The authorities referred to in Plaintiff M1/2021 as being overruled did not include the line of authorities outlined in these reasons.
112 The question of whether obligations of procedural fairness require that the decision-maker inform the affected party if the decision-maker intends not to make a decision in accordance with the Convention was not directly the subject of the decision in either Plaintiff M1/2021 or NRFX. However, the principle does not sit easily with the decision of the majority in Plaintiff M1/2021. As Derrington J correctly (in my opinion) said in NRFX, treaty rules and standards that have not been incorporated by enactment into Australian domestic law cannot, as described by the High Court, function directly or indirectly as a source of rights or obligations under domestic law. Again, as Derrington J described, the cardinal constitutional principle to be observed is that it is for the Parliament, and not the Executive, to make and alter the domestic law.
113 When this matter was raised at the hearing, counsel for the appellant, when observing that "Teoh has waxed and waned", indicated that he was not pressing any argument based on procedural fairness. He also observed that legitimate expectation was no longer a consideration.
114 However, counsel for the appellant referred to the decision of Mason CJ and Deane J in Teoh (at 291):
[R]atification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.
and submitted that, against the passage quoted, 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 and asking whether the force of any other consideration might outweigh it". Based upon the current authorities, that submission must be rejected. Considerations which arise under unenacted international conventions are not mandatory considerations.
115 Of course, there is no suggestion that the Tribunal gave notice to the applicant of the intention not to take account of the best interests of the child.
116 The focus of reg 2.03A of the Regulations is to identify compelling and compassionate circumstances for the grant of the visa. Given the wide range of circumstances which might be taken into account, the role of the Tribunal necessarily involves the exercise of a discretion.
117 The decision of the Tribunal involved the consideration of a relationship where the child was accepted to be the product of that relationship. When considering "compelling and compassionate circumstances" associated with the relationship, it seems clear that the interests of a child of the relationship are relevant and potentially the subject of consideration by the decision-maker.
118 As was said in Plaintiff M1/2021, the decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before the decision-maker.
119 That must be considered in light of the circumstances of the hearing. For example, a litigant in person may not be able to articulate a position with the same degree of accuracy as might an experienced lawyer.
120 The Minister submitted that the daughter was only raised by the appellant in the context of legitimacy of the de facto relationship and was not raised as a compelling and compassionate ground. I do not accept that proposition. The appellant represented herself before the Tribunal. The father of the child also took part in the hearing. The context of the hearing was a review of the decision of the delegate who was considering whether the appellant was in a genuine spousal relationship with her sponsor.
121 The Tribunal asked whether the appellant had anything else that she wanted to raise, as follows:
[MEMBER]: Yes, okay, is there anything else you want to tell me?
[THE APPELLANT]: I have a daughter to my husband.
[MEMBER]: Yes, I know that.
122 The Tribunal subsequently heard from Mr Ali, during the course of which Mr Ali was asked whether there was anything else he wanted to add:
[MEMBER]: Is there anything else you want to tell me?
[MR ALI]: … I don't want to send my daughter back to Fiji. Very poor place there they live in a village with no water there. Hardly electricity there and how my daughter going to suffer there mosquitoes and things there and having to live without my daughter and my wife …
[MEMBER]: Alright.
123 Particularly in the case of a self-represented litigant, I am satisfied that the effect of what was said was to raise the best interests of the daughter in all matters, including when considering any compelling and compassionate circumstances. This is clear from a fair reading of the above exchanges.
124 The decision-maker must "read, identify, understand and evaluate" the representations made (Plaintiff M1/2021 at [24]). The decision-maker must bring their mind to bear upon the facts, and the weight to be afforded is a matter for the decision-maker. The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness (Plaintiff M1/2021 at [25]).
125 If review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error (Plaintiff M1/2021 at [27]).
126 The Minister argued that the Tribunal did give adequate consideration to the best interests of the child.
127 "[C]ompelling and compassionate circumstances for the grant of the visa" is not defined in the Act and, as such, one must look to the ordinary meaning of the words "compelling" and "compassionate". They were defined by the Tribunal as follows: "'compassionate' suggests 'circumstances that invoke sympathy or pity'. 'Compelling' in its wide, ordinary meaning means 'forceful' and, therefore, convincing". Regulation 2.03A of the Regulations requires the appellant to establish "compelling and compassionate circumstances for the grant of the visa", otherwise the decision-maker is required to consider whether the appellant has been in a de facto relationship for 12 months. While the 12 month period is an objective fact and does not involve any exercise of discretion, the consideration of the factors and of whether "compelling and compassionate circumstances" exist does involve the exercise of a discretion. The decision-maker exercises a discretion and weighs the circumstances of the appellant's case and determines whether they are compelling and compassionate.
128 Did the Tribunal properly turn its mind to the best interests of the child in considering the "compelling and compassionate circumstances for the grant of the visa"?
129 The reasoning in Vaitaiki and Wan was summarised by Jagot J in Nweke v Minister for Immigration and Citizenship [2012] FCA 266 (at [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.
See also Promsopa at [54].
130 As Allsop J (as his Honour then was) said in Perez (at [118]) and reiterated in Promsopa (at [55]):
The interests of the children are considerations in respect of their human development - their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol, save for visits, or whether to release him, on appropriate conditions if thought necessary, so that he may be close to them … or freely available to spend time with them.
131 The Tribunal referred to the existence of the daughter three times throughout the decision under the heading "Are the parties in a de facto relationship". While one should not look at the Tribunal's decision with an "eye keenly attuned to the perception of error" (Liang at 272), an intellectual balancing was required by the Tribunal, and no such balancing occurred.
132 When considering whether there were any "compelling and compassionate circumstances for the grant of the visa", the Tribunal's reasons simply stated:
No compelling or compassionate circumstances have been identified to the Tribunal by either the Applicant or by Mr Ali as to why the 12 month requirement should be overlooked in their case, and none are discernible on the evidence. Accordingly, the Tribunal is not satisfied that there are compelling and compassionate circumstances for the grant of the visa.
133 The Tribunal did not turn its mind to, nor am I willing to infer that it turned its mind to, the best interests of the daughter as a "compelling and compassionate circumstance". The Tribunal did not identify what the best interests of the child were.
134 In relation to the question of "compelling and compassionate circumstances", the Minister has pointed to the numerous unfavourable findings regarding the de facto relationship of the appellant, including the existence of the appellant's other child, who was presently living with an aunt in Fiji, and the financial convergence of the appellant and her sponsor.
135 As is obvious from the words and format used in the regulation, those matters which are listed in reg 1.09A of the Regulations are said to be relevant to the existence of the de facto relationship for the purpose of s 5CB of the Act. They are not relevant to the consideration of "compelling and compassionate circumstances" under reg 2.03A(3).
136 As outlined in reg 2.03A(3), the Tribunal should first have considered if compelling and compassionate circumstances existed. It was necessary for the decision-maker to consider the matters as follows:
(a) whether the application has been made;
(b) whether the applicant can establish compelling and compassionate circumstances for the grant of a visa; and
(c) if compelling and compassionate circumstances are not established, whether the Minister can be satisfied that the applicant had been in the de facto relationship for at least a period of 12 months immediately before the date of the application.
137 The approach taken by the Tribunal did not follow the requirements of reg 2.03A(3).
138 The consideration of "compelling and compassionate circumstances for the grant of a visa" is not dependent of the factors which must be taken into account when considering whether the de facto relationship has existed. Examples of those factors appear in reg 1.09A.
139 When considering "compelling and compassionate circumstances", the Tribunal should have engaged in an intellectual balancing of the best interests of the daughter. No such balancing, nor even identification of best interests, took place.
140 Having regard to the contents of the reasons, it is clear (and I conclude) that the Tribunal did not give proper, genuine or realistic consideration to the factor raised by the appellant, namely the best interests of her daughter. This amounts to a jurisdictional error.
141 I am also satisfied that the Tribunal did not properly apply the requirements of reg 2.03A of the Regulations.
142 I am satisfied that the Tribunal engaged in jurisdictional error.
143 It follows that the orders of the FCCA made on 5 August 2021 should be set aside and the matter be remitted to the Tribunal.
144 In view of those conclusions, it is not necessary for me to come to any conclusion in relation to appeal ground 1(f).