Proposed ground of appeal 1A - the best interests of minor children
33 I will not summarise the factual background or the primary judge's reasoning, which are both, of course, to be found in the primary judgment. At this point it is only necessary to understand that in an interview that the delegate held with the applicant at the airport after giving him notice of the intention to cancel the visa, the applicant asserted that he was in a relationship with an Australian citizen called Boni, and also made an assertion about the effect on Boni and her children if he were to be returned to the United Kingdom. Evidence before this Court established that Boni is Veronica Kathleen Hill.
34 The first ground of review in the Circuit Court related to those matters; it is:
The decision of the delegate of the first respondent … was vitiated by a constructive failure to exercise jurisdiction in failing to give bona fide consideration to the best interests of the applicant's partner's children, or a denial of procedural fairness.
35 The applicant filed an amended proposed notice of appeal in this Court, by which he would raise as his first ground:
The learned primary Judge, in evaluating whether amended ground [of review] 1 enjoyed a sufficient prospect of success, erred in misunderstanding or misapplying the principle that an administrative decision-maker, in the exercise of a statutory discretion, will treat the best interests of a child as a primary consideration.
Particulars
1A.1 The learned primary Judge at [39] reasoned that the principle is engaged where 'great hardship' is discernible, and 'that that hardship is usually [] identif[able]'. But no such limitation is found in Articles 3 and 9 of the United Nations Convention on Rights of the Child. Nor therefore required (or permitted) under Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273.
1A.2 The learned primary Judge at [39] reasoned that the principle 'usually' applies where there exists a relationship of loco parentis or 'some special relationship'. But no such limitation is found in Article 3 of the Convention. Nor therefore required (or permitted) under Teoh.
1A.3 The learned primary Judge at [39] reasoned that 'that [('great')] hardship is usually [] identifi[able]', or must able to be 'discern[ed]'. But a decision made knowing the interests of a child would be affected without making obvious enquires may vitiate the decision: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 290, 321[.]
36 This relies on the principles established by the majority judgments in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. In summary, they are that although Australia's ratification of the Convention does not make the primary interests of children who are Australian citizens a mandatory consideration for administrative decision makers, it does give rise to a legitimate expectation that the interests of the children will be taken into account as a primary consideration in decisions that concern them. As such, if a decision maker does not proceed on the basis that the best interests of the children are a primary consideration and does not give affected persons notice of the intention not to proceed in that way, so that they have an opportunity to respond, there will be a denial of procedural fairness: see Teoh at 291-292 (Mason CJ and Deane J), 302-303 (Toohey J), 304-305 (Gaudron J).
37 It is also relevant that Mason CJ and Deane J held, in effect, that the notion of when an administrative decision 'concerns' children in accordance with the Convention should be given a wide scope: at 289; see also Toohey J at 302. In that case, therefore, although the relevant decision was to refuse resident status to the respondent (due to a criminal conviction), the decision nevertheless relevantly concerned his minor children who were Australian citizens. Chief Justice Mason and Deane J said that the legitimate expectation would arise on an objective basis if it 'is reasonable in the sense that there are adequate materials to support it' (at 291).
38 With respect, I am satisfied that there is a serious question whether the primary judge erred in his application of these principles. That is primarily based on a submission that the applicant made in this Court that, the delegate having identified that visa cancellation may cause hardship for Ms Hill's children, it followed that the effect of the decision on their interests was sufficient to mean that the delegate was required to give notice to the applicant if the delegate had intended to proceed without treating their interests as a primary consideration.
39 It is possible to put that argument together with one of the attacks that the applicant makes on the primary judge's reasoning in the proposed ground of appeal in order to arrive at an arguable case that his Honour misapplied the principles above. It is true that his Honour did, at [39], arguably misstate the effect of the Convention, which does not require 'great hardship' to be established before those principles are engaged. But that statement (made in an ex tempore decision delivered in circumstances of great urgency) needs to be read fairly in context. The impugned paragraph [39] is:
In this case, one needs to have some regard to what it is that causes a Court to have to consider the best interests of a child as being primary. This is usually where the person, or the applicant, is in loco parentis of children or has some special relationship with children. In such a case, it is whether a decision-maker can discern that the absence of the applicant in the children's life may be something that causes great hardship, and that hardship is usually able to be identified. If those aspects are satisfied, the interests of the children must be considered as primary considerations as to whether the visa ought be cancelled.
40 It would be wrong to place too much emphasis on the term 'great hardship'. When the paragraph is read as a whole, his Honour is probably making the point that something needs to be identified that means it would be adverse to the interests of relevant children for the non-citizen to be absent from the children's lives. That is confirmed by posing the question as whether the decision maker can discern that the absence of the non-citizen 'may be something that causes great hardship' (emphasis added).
41 Nevertheless, it can be argued, as the applicant does, that the delegate's acknowledgement that the children might experience hardship means that there was a sufficient likelihood that they would be affected by the cancellation of his visa so that their interests were a primary consideration. His Honour found, in effect, that the applicant was not living with Ms Hill, and that it was the delegate (or interviewer) who asked questions about the children - not the applicant who volunteered information about them to start with - and that the applicant had said in text messages that he was happy to go away because he had no family here. This all makes it arguable that in coming to apply the test, his Honour found that the connection between the applicant and Ms Hill's children was not such as to mean that their interests were a primary consideration. Since that is arguably inconsistent with the delegate's acknowledgement that the children might experience hardship, I am satisfied that it is arguable that his Honour erred in his application of the principles.
42 I do not, however, accept a submission the applicant made that it was incorrect of the primary judge to have proceeded on the basis that the applicant had not volunteered information about the children, but that the interviewer had asked questions about them: primary judgment at [49]. That is an accurate assessment of what is revealed by the interview transcript, as follows:
As you're aware, I've got an apartment in Australia here. Bonnie, who lives in Fremantle. We're in the process of applying for a partner visa. If I'm not allowed to stay today, that's, I'm guessing, will be the end of the relationship, because there will be no further work for us to continue. I've got money, so I've got no reason to work. It's entirely up to you guys where you move forward. If I can, I'm happy to lodge a substenent [?] visa today, which will give me different rights as with my partner, but the call is yours. If not, I'll be happy just to get on a plane and go back to London.
INTERVIEWER: Ok, I'm just writing that down.
[MR MERRIMAN]: It's going to cause vast upset though for Bonnie and her family, and those kids.
INTERVIEWER: So, Bonnie has kids?
[MR MERRIMAN]: Yep, which I am, obviously - she's allowed me into her life, her children's life. We're in the process of applying for a partner visa, as but like I said, whatever. It's done now. I can see the way you guys can interpret these, but a message can be interpreted in many ways.
INTERVIEWER: How many kids does she have?
[MR MERRIMAN]: Four.
43 Further, I am not persuaded that there is a serious case that his Honour erred when he said that the principles 'usually' apply when the person directly affected by the decision has a parental or other special relationship with the children. The qualification 'usually' means that the statement is, on its face, correct (cf. proposed ground 1A.2).
44 I am also not persuaded that there is a serious case that the primary judge erred to the extent that he did not apply some principle that 'knowing the interests of a child would be affected without making obvious enquires may vitiate the decision' (cf. proposed ground 1A.3). That asserted principle is taken from the dissenting judgment of McHugh J, and is not part of the ratio of Teoh as I have described it. The applicant submitted that the proposition also found favour in the majority judgment of Mason CJ and Deane J. But, to the contrary, that passage (at 290) is critical of reasoning that the decision maker in that case had denied natural justice on that basis. While Toohey J seemed to have some sympathy for this argument, his Honour expressly did not decide on that basis (see 302-303). And Gaudron J agreed with Mason CJ and Deane J that the decision maker was not required to initiate inquiries (at 305). Further, the applicant has not established that any reasonable inquiries that could have been made by the delegate were put to his Honour.
45 I also do not accept that a serious case arises from the applicant's submission that, in premising his decision on there being a need for the decision maker to discern or identify that the applicant's absence from the children's life would cause them great hardship, the primary judge 'inverted' Teoh. The applicant submits that there is an obligation on decision makers to treat the best interests of the children as a primary consideration, however it may arise. But while that is so, it overlooks the basic point that it is necessary for the decision maker to first identify that there are children with a sufficient connection to the directly affected person so as to engage the principle in Teoh. There must be adequate materials to support it. In my view, all the primary judge was doing in [39] of the primary judgment was to acknowledge that basic reality. While, as Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 establishes, it is not necessary for the non-citizen to raise the point for it to be relevant, it is still usually necessary for the non-citizen to identify facts and circumstances relevant to the decision: see Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [23]. The serious question to be heard does not arise from his Honour's statement of the principle in that regard, but rather from his possible error in applying it as identified above. That error is capable of amounting to acting on a wrong principle as described in House.
46 Despite that possible error, there is much to be said for the proposition that the primary judge's final assessment of the strength of the first ground of review was correct. His Honour said (at [52]):
It seems to me that it will be very difficult for the applicant to succeed on ground 1. That is not to say that he will not, but it is not a matter where there is a strong or undeniable and identifiable jurisdictional error.
47 Read fairly, here the primary judge is not dismissing the ground out of hand. He is just saying that it is not a strong case of jurisdictional error.
48 With respect, I share that assessment. That is because it is open to contend, as counsel for the Minister did before me that the delegate did, in any event, proceed on the basis that the best interests of Ms Hill's children were a primary consideration. The delegate acknowledged that the visa cancellation may cause hardship for the children, and such a brief reference must be assessed in light of the relatively brief treatment of visa cancellation decisions conducted in migration clearance at ports of entry: see Minister for Immigration and Border Protection v Srouji [2014] FCA 50 at [21] (Jagot J).
49 In summary, therefore, I consider that while proposed ground of appeal 1A does disclose a serious question to be heard that the primary judge erred, it is not a strong case.