Was the applicant denied procedural fairness?
32 In 1990 the Executive of the Commonwealth ratified the Convention on the Rights of the Child ("the Convention") and on 16 January 1991 the Convention entered into force for Australia. Article 3(1) of the Convention 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.
33 In Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 the High Court (McHugh J dissenting) held that the refusal of an application for a permanent entry permit to a parent of dependent children living in Australia with the direct result that the parent would be deported and the family broken up was an action concerning children and that ratification of the Convention created a legitimate expectation that, in deciding whether to exercise her discretion to deport the parent, the Minister would act in conformity with it and treat as a primary consideration the best interests of the children. Mason CJ and Deane J said (at 291) that ratification of an international convention is "a positive statement by the executive government of this country to the world and the Australian people that the executive government and its agencies will act in accordance with the Convention". That positive statement, their Honours continued, was sufficient foundation for the legitimate expectation. Consequently, if a decision-maker proposes to make a decision inconsistent with the legitimate expectation, procedural fairness requires that anyone affected by it be given notice and an adequate opportunity to be heard against the taking of such a course. Cf. Toohey J at 302 and Gaudron J at 305.
34 At 292 Mason CJ and Deane J said that a decision-maker with an eye to the principle enshrined in the Convention would be looking to the children's best interests as a primary consideration and then asking whether the force of any other consideration outweighed it.
35 Consequently, in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at [32], an appeal from the AAT, a Full Court of this Court said that the tribunal was required to identify what the best interests of the children of the visa applicant required and then to assess whether the strength of any other consideration or the cumulative effect of other considerations outweighed the consideration of the best interests of the children. In that case the Court held that the tribunal fell into jurisdictional error by failing to give proper, genuine and realistic consideration to the best interests of Mr Wan's children.
36 These principles apply equally to decisions affecting visa applicants and visa holders facing the prospect of their visas being cancelled.
37 In Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501 ("Nweke") (published after the Minister's decision in the present case), Jagot J applied the reasoning in Wan to quash a decision of the Minister to cancel a visa on character grounds as a denial of procedural fairness. In Nweke the Minister also said that he gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of the visa. He then went on to say "I accepted the available information that indicated that Mr Nweke has close ties to his three children and is committed to providing them with emotional and financial support. I have considered that Mr Nweke's children may suffer emotional and financial hardship if his visa is cancelled". Later, he said he accepted that Mr Nweke had a close relationship with each of his three young children and that "it may be in their best interests" (emphasis added) for his visa not to be cancelled. However, given the serious nature of his past offending, he said he concluded that even a relatively small risk of him reoffending presented an unacceptable risk of harm to the Australian community, which outweighed the best interests of Mr Nweke's three children and any other countervailing considerations.
38 Her Honour said (at [19]) that there was nothing in the language of the Minister's decision or his reasons to suggest that he assumed that the children's best interests were for the cancellation of their father's visa and that the Minister weighed the risk of harm to the Australian community from Mr Nweke's possible reoffending against those interests. Her Honour considered that the Minister's reasons as a whole indicated that he either found or assumed that it may be in the children's best interests if their father's visa were not cancelled, so that when he came to consider whether the risk of harm to the Australian community from the small risk that Mr Nweke would reoffend outweighed the best interests of the children, he weighed that risk against the fact or assumption that it may be in the children's best interests that the visa not be cancelled. In the circumstances, her Honour observed, the conclusion the Minister reached was hardly surprising. Her Honour went on to say (at [21]):
Applying the reasoning in Vaitaiki [this is a reference to Vaitaiki v Minister for Immigration and Ethnic Affairs (1988) 150 ALR 608] 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.
39 The Minister did not appeal from her Honour's judgment and, although critical of aspects of her Honour's reasoning, Mr Markus, who appeared for the Minister in this Court, did not submit that her Honour was wrong. The full statement of the Minister's reasons is set out in the judgment at [9]. The reasoning process is identical. In relevant respects the language is the same.
40 I accept, of course, that each case turns on its facts but there is a striking similarity between the way the Minister expressed himself in the statements of reasons in the two cases. There is no good reason why the conclusions should be different.
41 Mr Markus said everything that could possibly be said in favour of the Minister's position but in the end I was unpersuaded by his argument.
42 Mr Markus submitted that Nweke was not authority for the proposition that in circumstances where a finding is expressed in hypothetical terms, the best interests of the child could not have been treated as a primary consideration. He said that Nweke turned on its own facts.
43 Ordinarily, as a matter of judicial comity, a single judge of this Court should follow the judgment of another single judge of the Court unless persuaded that it is clearly wrong: Cooper v Federal Commissioner of Taxation (2004) 139 FCR 205 at [46], Bahonko v Sterjov (2007) 163 FCR 318 at [8]. Not only am I not persuaded that Jagot J was clearly wrong in Nweke, I am persuaded she was right. If the proper interpretation of the Minister's reasons is that he made no assumption or finding about what the best interests of the children required, then he could not have given primary consideration to their best interests. Making the assumption or finding was a necessary step in the deliberative process. Mr Lesianawai had a legitimate expectation that the Minister would give primary consideration to the best interests of all his children and not having done so, the Minister's decision to cancel the visa would have been made in denial of procedural fairness.
44 Mr Markus claimed that the position taken by Mr Lesianawai would give precedence to form over substance. He submitted that in working out what the Minister was doing, significant weight should attach to what he said he did in para 24. Alternatively, he submitted that the Minister should be taken to have assumed that the best interests of the children would not favour cancellation of the visa. He submitted that the use of hypothetical language was "unfortunate" and "unhelpful" but simply reflected the fact that there was an element of prediction, if not speculation, involved in the exercise.
45 In truth, to accede to these submissions would involve the very heresy Mr Markus counselled against. It would be a triumph of form over substance. Merely because the Minister said he gave primary consideration to the best interests of the children does not mean that he did. Indeed, the way in which the Minister expressed himself in para 24 suggests that he did not even go this far. As Mr O'Donnell, who appeared for Mr Lesianawai, put it, at this point in his reasons he was really doing no more than acknowledging his obligation. I say this because of the reference in that statement to the best interests of "any children who are less than 18 years of age and whose best interests may be significantly affected by the cancellation of Mr Lesianawai's visa".
46 If, contrary to the interpretation I have placed on the Minister's statement in para 24, the statement is to be read as an assertion that the Minister did give primary consideration to the best interests of Mr Lesianawai's children, I have concluded that (with one qualification), that assertion is a hollow one.
47 The qualification relates to the interests of Mr Lesianawai's oldest child. In this instance, the Minister expressed a conclusion (at para 25) which is capable of being read as a reference to what his best interests entailed. That statement stands in stark contrast to the statements concerning the four younger children.
48 Mr Markus submitted that a "beneficial approach" should be taken to the Minister's reasons, picking up on what was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Liang"). I am, of course, mindful of the need to avoid over-zealous scrutiny of an administrative decision-maker's reasons (Liang) and that the decision-maker's "looseness in … language" or "unhappy phrasing" (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287) should not concern a court on an application for judicial review. But, as Stone J indicated in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26], a beneficial approach to the reasons does not demand that any ambiguity in them must be resolved in the decision-maker's favour.
49 Mr Markus urged that the statement of reasons should be read together with an issues paper the Minister received from the Department. I have done that. But it does not take the matter any further. The issues paper set out para 10.4.1 of Direction 41, which starts with the proposition that under Australian law it is generally presumed that a child's best interests will be served if the child remains with the parents but which goes on to identify 15 factors that must be considered "in considering the best interests of the child". I accept that the Minister read the issues paper. But his failure to advert to the presumption and the way he expressed himself do not indicate that he was acting on the presumption or that he made any assumption about what was actually in the best interests of Mr Lesianawai's four youngest children. I note that the issues paper recited at para 66 that:
Notwithstanding the evidence that Mr LESIANAWAI maintains contact with his three elder children and that they and their mother wish this to continue, ti si open to you to find that they would not be deprived of adequate parental care and guidance by cancellation of Mr LESIANAWAI's visa. Also, they would be able to continue to have contact with their father be telephone, letters and emails and perhaps occasional visits, similar to their present contact with him, even if he is not in Australia. Therefore, while acknowledging that visa cancellation would not be in their best interests, you may consider that the extent of any harm would be relatively limited.
50 Para 26 of the Minister's statement of reasons indicates that he was selective in the way in which he followed this advice. He accepted that these children would not be deprived of adequate parental care and guidance if the visa were cancelled. He also accepted the suggestion that the extent of any harm to them would be "relatively limited". But he did not acknowledge that visa cancellation would not be in their best interests. He said it may not be.
51 Having regard to the whole of the statement of reasons, I am satisfied that the use of the word "may" was not a mere slip of the tongue, so to speak. It appeared three times in as many paragraphs. I do not consider that the Minister meant to be any more definite than this language suggests. Rather, I am satisfied that (as in Nweke) the Minister either found or assumed (it is not clear which) that the best interests of the four younger children may not be served by cancelling their father's visa or that their interests may be served by not cancelling it. I accept, as Mr Markus submitted, that some speculation is involved in any predictive exercise. But determining what is in the best interests of the children is not merely a predictive exercise. In any case, the Minister apparently had no difficulty making a finding about the impact cancelling the visa would have on his partner. He said he accepted that she would experience hardship in that event. He also said that Mr Lesianawai would face some hardship reintegrating into Fijian society, although that was an entirely predictive exercise. Furthermore, as I said earlier, in the case of the oldest child, the Minister made a finding in definitive terms. It is understandable that the Minister might have had trouble being definite in his opinions concerning the younger children. He may have thought that Mr Lesianawai's criminality would be detrimental to them and so struggled with the notion that it was in their best interests that their father remain with them. Although he was invited by the issues paper to acknowledge that visa cancellation would not be in the interests of three of the children, he appears to have shied away from doing so.
52 It is true that in the case of the three children who live with Mr Lesianawai's ex-wife the Minister made findings about their circumstances and in the case of the youngest child he described the nature of the relationship Mr Lesianawai had with her. These circumstances were undoubtedly relevant to the assessment of their best interests. But the Minister stopped short of making a finding as to what they required. Absent such a finding, the proper inference to be drawn is that he did not give primary consideration to their best interests. That is not to say, as Mr O'Donnell stressed, that the Minister did not go about his task in good faith, honestly and conscientiously. It simply means that he did not complete the task he set for himself. Not having come to a conclusion about what was in the children's best interests, he could not give that matter the weight Mr Lesianawai was entitled to expect he would give it in the balancing exercise he then went on to undertake.
53 Mr Markus drew attention to the last sentence in para 26, passing over the hypothesis in the first clause and emphasising the statement that "the net impact would be relatively limited". Presumably the Minister meant that the net impact on the children of the cancellation of their father's visa would be limited. But this is not a conclusion about what their best interests involved or required. It begs that question. One is driven to ask rhetorically: if the Minister was of the opinion that the best interests of the children did not require the cancellation of the visa, why did he not say so?
54 This is not merely a case where the Minister was obliged to have regard to certain considerations. The expectation Mr Lesianawai had was that the Minister would give preferential treatment to one particular consideration. The Minister could not have given primary consideration to the best interests of the four younger children because he made no finding about what their best interests required. Instead, he simply hypothesised that the cancellation of the visa might not be in their best interests (in the case of three of the children) and (in the case of the youngest child) that it might be in her best interests if it were not.
55 This means that, despite what he said at para 24 of his statement of reasons, the Minister did not in fact give primary consideration to the best interests of Mr Lesianawai's four youngest children and he was therefore obliged to put Mr Lesianawai on notice that he intended to take that course. Not having done so, he denied him procedural fairness.
56 It follows that the Minister fell into jurisdictional error (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82) and the application must succeed.