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[1995] HCA 20
High Court of Australia
1995-04-07
Mason CJ, McHugh JJ, Deane J, Black CJ, Carr JJ
Original judgment source is linked above.
These proceedings began as an application by the present respondent against the present appellant under the provisions of the Administrative Decisions (Judicial Review) Act 1977 Cth (the AD(JR) Act). Two decisions were sought to be reviewed:
French J dismissed the application. The Full Court (Black CJ, Lee and Carr JJ) allowed an appeal, set aside the decision of the delegate made 26 July 1991, referred the application for a grant of resident status to the appellant "for reconsideration according to law" and stayed the decision made 17 February 1992 to order deportation until the appellant had "reconsidered and determined the said application according to law" [19] . The Minister appeals from the judgment of the Full Court.
What follows is largely taken from the judgment of French J.
The respondent is a Malaysian citizen who arrived in Australia on 5 May 1988 as a visitor. He was granted a temporary entry permit, valid until 5 November 1988. On 9 July 1988 the respondent married Helen Jean Lim, an Australian citizen. She had four children. The eldest was a child of an earlier marriage. The other three were children of her de facto relationship with the respondent's brother who, at the time of the marriage of the respondent and Mrs Lim, was deceased. Thereafter the respondent obtained an extension of his entry permit until 5 February 1989. On 5 January 1989 a child was born to the respondent and his wife and, later, two other children.
On 3 February 1989 the respondent lodged an application with the Department of Immigration and Ethnic Affairs (the Department) for a grant of resident status. The application was supported by character references and included a bail recognisance for the respondent's appearance at the Central Law Courts in Perth on charges of dangerous driving and driving without a motor driver's licence. The respondent was convicted of driving without a licence and was fined $200.
On 16 November 1989, while the application for resident status was pending, the respondent was arrested and charged with a number of offences relating to the importation and possession of heroin. He had been involved in the sending of heroin from Malaysia to Australia over a period of about four months from August 1989. He was convicted on nine counts and, overall, he received a sentence of six years imprisonment, with a non-parole period of two years and eight months. The respondent was sentenced on 30 November 1990. At about this time Mrs Teoh pleaded guilty to charges relating to heroin and was given a suspended sentence of eighteen months. She had a serious drug addiction.
On 2 January 1991 the Department wrote to the respondent to tell him that his application for a grant of resident status had been refused. As his entry permit had expired, he was therefore an illegal entrant. The letter contained reasons for decision which pointed to a policy requirement for the grant of resident status that "applicants be of good character" and said that the respondent could not meet this requirement because of his criminal record.
On 29 and 30 January 1991 the respondent and his wife completed an application for reconsideration of his application for resident status by the Immigration Review Panel (the Panel). Again, character references were included. In one of these mention was made of the drug addiction of the respondent's wife and she described in a letter her hardships and the need for the respondent's continued presence.
On 25 July 1991 the Panel recommended that the application for reconsideration of the grant of resident status be rejected. Because of the significance the reasons for the recommendation assumed in the proceedings that followed, it is necessary to quote certain passages [20] :
Mrs Teoh, the applicant's sponsor and a former employer have made claims on compassionate grounds for the application for reconsideration to be approved. Mrs Teoh states that she and the five children will suffer great financial and emotional hardship if the applicant is deported. Mrs Teoh is receiving community support during her husband's imprisonment and will be dependent on social services if he is forced to leave Australia.
All the evidence for this application has been carefully examined, including the claims of Mrs Teoh. It is realised that Mrs Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted.
However the applicant has committed a very serious crime and failed to meet the character requirements for the grant of permanent residency. The compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh's criminal record [and] it is recommended that this application is rejected.
This recommendation was endorsed as accepted by Christine Rushworth, a delegate of the appellant, on 26 July 1991. Ms Rushworth's decision is the first of the two decisions challenged under the AD(JR) Act. Following the decision of 26 July 1991 there were communications and approaches made by the respondent to the appellant and various bodies; it is unnecessary to detail them.
The application under the AD(JR) Act sets out a number of grounds. In essence they are that there was a breach of the rules of natural justice, an improper exercise of power in failing to take into account relevant considerations and an improper exercise of power in exercising a discretionary power in accordance with a policy without regard to the merits of the case. French J held that the respondent failed to make good any of these grounds. The Full Court upheld an appeal against dismissal of the application. The members of the Full Court did not all take the same approach and, as the appellant complains of the approach each took, it will be necessary to say something about each judgment. But it should be said now that the role accorded by two of their Honours to Australia's ratification of the United Nations Convention on the Rights of the Child ("the Convention") was at the forefront of the appellant's attack on the decision of the Full Court.
The provisions of the Convention which featured most prominently before the Full Court were as follows:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
The Convention was ratified by Australia on 17 December 1990 and entered into force for Australia on 16 January 1991 [21] . By an instrument of declaration made 22 December 1992 the Attorney-General of the Commonwealth declared the Convention to be an international instrument relating to human rights and freedoms for the purpose of the Human Rights and Equal Opportunity Commission Act 1986 Cth (the HREOC Act) [22] . The decisions with which this appeal is concerned were made after Australia ratified the Convention but before the instrument of declaration.
Black CJ approached the matter in light of the appellant's concession "that in a case such as the present the breaking up of a family unit is a consideration of major significance and one which the decision-maker was relevantly bound to take into account" [23] . The point at issue for his Honour was what was required of the decision-maker in order to give effect to this requirement. This, he said, involved not a question of the weight to be given to this aspect, but whether the decision-maker had given proper consideration to it. His Honour held that, in the circumstances of the case, proper consideration required that further inquiry be made as to the implications for the respondent's family if he were deported.
Black CJ referred only briefly to the Convention. In his opinion it formed part of the general background against which decisions affecting children are made. While it was not part of Australian domestic law, it reflected "the standards to which Australia is seen by the international community to aspire as a mature and civilised nation" [24] . His Honour continued:
Those standards emphasise that special care should be taken when decisions are made that may profoundly affect the lives of young children by parting them from a parent and exposing their family to the risk of disintegration. 1. Teoh (1994) 49 FCR 409 at 414.
By contrast, Lee J placed emphasis on the Convention. His approach was that it was unnecessary to determine to what extent the common law has been affected by ratification of the Convention. The question, his Honour said [25] , is "whether the exercise of decision-making powers of an administrative kind import cognisance of the provisions of the Convention by reason of the executive's ratification of the Convention". His Honour's approach is encapsulated in the following paragraph [26] :
In my opinion ratification of the Convention by the executive was a statement to the national and international community that the Commonwealth recognised and accepted the principles of the Convention. That statement provided parents and children, whose interests could be affected by actions of the Commonwealth which concerned children, with a legitimate expectation that such actions would be conducted in a manner which adhered to the relevant principles of the Convention. It followed, in his Honour's view [27] , that persons exercising delegated administrative powers to make decisions which concerned children were expected to apply the broad principles of the Convention in so far as it was consonant with the national interest and not contrary to statutory provisions to do so. 1. Teoh (1994) 49 FCR 409 at 420. 2. Teoh (1994) 49 FCR 409 at 420. 3. Teoh (1994) 49 FCR 409 at 421.
Applying this approach, Lee J concluded that the decision to refuse an entry permit to the respondent failed to give effect to a legitimate expectation on the part of the parents and children that the principles of the Convention required the best interests of the children to be a primary consideration. There was a legitimate expectation that "appropriate inquiries" would be made and "appropriate reports" would be obtained as to the future welfare of the children in the event that the respondent was deported [28] . This was not done.
In light of the material before the Court, Carr J held [29] that it was apparent that the decision-maker "specifically considered the plight of Mrs Teoh and her children were the [respondent] to be deported". The decision-maker had extended procedural fairness and had given proper consideration to the effect of a deportation order on the family. However, his Honour allowed the appeal on the basis that the Convention forms part of the context in which Australian decision-makers have to determine how to carry out their duty to act fairly. Although it was not part of municipal law, the children had "a legitimate expectation that their father's application should be treated by the minister in a manner consistent with the Convention" [30] . While the decision-maker worked on the assumption that deportation was going to make the future bleak for the children and their mother, it is possible that the initiation of appropriate inquiries and the obtaining of appropriate reports would have revealed the children's situation to be far worse, and she may have come to a different conclusion [31] .
The appellant criticised the approach taken by each of the members of the Full Court.
It being common ground that the Convention is not part of Australian municipal law, what role should it have played in the decisions which have given rise to this appeal? In posing the question in this way, there is an underlying assumption that if the Convention were part of municipal law Arts 3 and 5 would indeed have an impact on the decisions that were made.
The appellant said that it was axiomatic that treaties (other than treaties terminating a state of war) do not impose obligations on individuals or invest individuals with additional rights or otherwise affect the rights of individuals under Australian law except in so far as the treaty is effectuated by statute. There is an abundance of authority to this effect [32] .
But it does not follow that the Convention has no role in the present case. It is important to see the way in which the respondent relied upon the Convention. It played no part in the hearing before French J. It is not mentioned in the notice of appeal to the Full Court. It seems to have surfaced during the hearing of the appeal to the Full Court and was relied upon by the respondent as an aspect of natural justice, in particular as giving rise to a legitimate expectation that the Panel would act consistently with the Convention and, in particular, not act in a manner inconsistent with Australia's obligations under the Convention without giving the respondent an opportunity to be heard. Coupled with this expectation was an obligation to provide procedural fairness to the respondent, an obligation which required the decision-maker to obtain further information about the respondent's family before making a decision.
If the matter is approached in terms of legitimate expectation, it is no answer for the appellant to argue that the Convention does not give rise to individual rights and obligations in municipal law. The question rather is whether Australia's ratification of the Convention results in an expectation that those making administrative decisions under the aegis of the executive government of the Commonwealth will act in accordance with the Convention wherever it is relevant to the decision to be made.
In the appellant's submission the Convention had no bearing on and was irrelevant to the rights of the respondent and the obligations of the appellant. Ratification did not amount to adoption or incorporation of the Convention in the municipal law of Australia. Declaration for the purposes of the HREOC Act did no more than identify an international instrument as a guide to the Human Rights and Equal Opportunity Commission in fulfilling its functions of inquiring into and reporting on any act or practice that may be inconsistent with or contrary to human rights declared in the instrument. The appellant drew attention to the fact that the Convention receives no mention in the Migration Act 1958 Cth. By way of contrast, s 6A(1)(c) of that Act (now repealed) referred specifically to the 1951 Geneva Convention relating to the Status of Refugees and the 1967 New York Protocol relating to the Status of Refugees.
Concepts such as natural justice, procedural fairness and legitimate expectation are sometimes applied as if they were labels, somehow determining the outcome of a particular matter. But they have to be seen for what they are, in their particular context. It is one thing to say that natural justice demanded that the respondent be given every opportunity to present his case; certainly natural justice demanded that much. It is another thing to say that procedural fairness dictated that no decision adverse to his application be made without pursuing further the implications of deportation for his family. It is another thing again to say that the respondent had a legitimate expectation that the decision-maker would act in accordance with the Convention.
It was not part of the respondent's case that he was denied an opportunity to present the case in support of his application for resident status. The Department gave him the opportunity to provide whatever material he wished in support of his original application and his application for reconsideration. I shall defer the question of whether the delegate should have made further inquiries until I have dealt with the matter of the Convention and legitimate expectation. In doing this I recognise that legitimate expectation is often treated as an aspect of procedural fairness, though generally in the context of an expectation that a decision-maker should afford a person the opportunity to be heard on a particular matter [33] . As has been observed [34] : "The two broad categories into which the content of a legitimate expectation can be divided are those related to a benefit and those expressly directed to a hearing." In the present case the respondent contends for an expectation that the delegate would deal with his application in light of the criteria to be found in the Convention, particularly the principle that "the best interests of the child shall be a primary consideration". Accordingly, it was submitted, procedural fairness required that if the delegate proposed to act inconsistently with Australia's obligations under Arts 3 and 5 of the Convention, she should first have afforded the respondent the opportunity of persuading her that she should act consistently with its terms.
In R v Secretary of State for Home Department; Ex parte Brind [35] , the House of Lords rejected the broad proposition that the Secretary of State should exercise a statutory discretion in accordance with the terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was not part of English domestic law. That decision was considered by the New Zealand Court of Appeal in Tavita v Minister of Immigration [36] where a deportee argued that those concerned with ordering his deportation were bound to take into account the Convention and the International Covenant on Civil and Political Rights, both of which had been ratified by New Zealand. In the end the Court did not have to determine the point. But it said of the contrary proposition [37] :
That is an unattractive argument, apparently implying that New Zealand's adherence to the international instruments has been at least partly window-dressing there must at least be hesitation about accepting it. 1. [1991] 1 AC 696. 2. [1994] 2 NZLR 257. 3. Tavita [1994] 2 NZLR 257 at 266.
In Minister for Foreign Affairs and Trade v Magno [38] , Gummow J essayed an analysis of the relationship between an instrument embodying an international obligation of Australia and a municipal statute dealing with that subject matter. His Honour looked at various aspects of that relationship, concluding that [39] :
difficult questions of administrative law and of judicial review arise where, whilst the international obligation is not in terms imported into municipal law and the municipal law is not ambiguous, nevertheless, upon the proper construction of the municipal law, regard may be had by a decision maker exercising a discretion under that law to the international agreement or obligation. In In the Marriage of Murray and Tam [40] Nicholson CJ and Fogarty J referred to Gummow J's analysis. The Family Court of Australia was concerned with an appeal from orders made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) which in turn derived from the Hague Convention which Australia had ratified. Their Honours noted what Nicholson CJ had said earlier in his dissenting judgment in Re Marion [41] in relation to the Declaration on the Rights of Mentally Retarded Persons, incorporated as Sch 4 to the HREOC Act, namely, that: "it [is] strongly arguable that the existence of the human rights set out in the relevant instrument have been recognised by the parliament as a source of Australian domestic law by reason of this legislation." Whether this is so is a matter which does not arise in the present case. 1. (1992) 37 FCR 298. 2. Magno (1992) 37 FCR 298 at 304. 3. (1993) 16 Fam LR 982. 4. (1990) 14 Fam LR 427 at 451.
Returning to what was said in Tavita , certainly a submission by a decision-maker that no regard at all need be paid to Australia's acceptance of international obligations by virtue of ratification of a convention is unattractive. What is the next step? Ratification of itself does not make the obligations enforceable in the courts; legislation, not executive act, is required. But the assumption of such an obligation may give rise to legitimate expectations in the minds of those who are affected by administrative decisions on which the obligation has some bearing. It is not necessary for a person in the position of the respondent to show that he was aware of the ratification of the Convention; legitimate expectation in this context does not depend upon the knowledge and state of mind of the individual concerned [42] . The matter is to be assessed objectively, in terms of what expectation might reasonably be engendered by any undertaking that the authority in question has given, whether itself or, as in the present case, by the government of which it is a part [43] . A subjective test is particularly inappropriate when the legitimate expectation is said to derive from something as general as the ratification of the Convention. For, by ratifying the Convention Australia has given a solemn undertaking to the world at large that it will "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies" make "the best interests of the child a primary consideration".
The appellant complained that the proliferation of conventions which Australia had ratified would impose an impossible task on decision-makers if they were to be the basis for legitimate expectations. But particular conventions will generally have an impact on particular decision-makers and often no great practical difficulties will arise in giving effect to the principles which they acknowledge. In any event it is not that decision-makers must give effect to the precept that "the best interests of the child shall be a primary consideration" [44] . There may be other interests carrying equal weight. Rather, a decision-maker who does not intend to treat the best interests of a child as a primary consideration must give the person affected by the decision an opportunity to argue that the decision-maker should do so.
The touchstone in Art 3 is "actions concerning children". The scope of the provision can be gauged if the word "concerning" is given its ordinary meaning of "relating to; regarding; about" [45] or "regarding, touching, in reference or relation to; about" [46] . The refusal of an application for resident status to a parent of dependent children living in Australia, with the direct consequence of deportation for the parent and the breaking up of the family, is an action concerning children.
It follows that while Australia's ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course. It may be said that such a view of ratification will have undue consequences for decision-makers. But it is important to bear in mind that we are not concerned with enforceable obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation.
It was argued that proper consideration of the respondent's application necessitated further inquiries by the delegate. Indeed, a failure to make such inquiries underlies the judgments of Lee J and Carr J. Generally speaking, it is not the decision-maker's duty to initiate inquiries [47] . But in endorsing the Panel's recommendation, the delegate must be taken to have accepted that "Mrs Teoh and family are facing a very bleak and difficult future". Before deciding that these considerations did not warrant "the waiver of policy in view of Mr Teoh's criminal record", inquiries could have been made at least of Parkerville Children's Home which had the children in its care and the Department of Community Welfare which had an ongoing involvement with them. The point is not that the delegate was obliged by the Convention to do so but that, had she done so, she might have been in a better position to meet the legitimate expectation to which the Convention gave rise. It is apparent that the delegate did not approach the matter on the footing that the interests of the children were a primary consideration. Instead, she appears to have treated the policy requirement that applicants for the grant of resident status be of good character as the primary consideration. It need hardly be said that the decision-maker might treat the best interests of the children as a primary consideration yet, in all the circumstances, refuse the application for resident status.
Before allowing the scales to come down against the respondent by reason of his criminal record, some more detailed assessment of the position of his family could have been undertaken. However, I would dismiss the appeal, not by reason of any failure by the delegate to initiate inquiries and obtain reports, but rather because she did not meet the respondent's legitimate expectation that she would give the best interests of the children the consideration required by the Convention or inform the respondent of her intention not to do so in order that he might argue against that course.
The facts, the issues and the relevant legislative provisions are set out in the judgments of Mason CJ and Deane J and of Toohey J. It is necessary only to emphasise the consequence to the seven young children who constituted Mr Teoh's immediate family (the children) of a decision refusing or confirming the refusal of his application for resident status. In that event, Mr Teoh would be required to leave the country and the children would be placed in a position where they grew up either fatherless or in another country, denied an upbringing in the country of which they are citizens.
As appears from the judgment of Mason CJ and Deane J, the case was argued in this Court primarily by reference to Art 3.1 of the United Nations Convention on the Rights of the Child (the Convention) which provides that "[i]n all actions concerning children the best interests of the child shall be a primary consideration". It was argued for the appellant that, although his delegate was bound to have regard to the interests of the children, she was neither bound to proceed on the basis that their best interests were a primary consideration nor obliged as a matter of procedural fairness to give Mr Teoh an opportunity to persuade her of that course if she were minded to proceed on some other basis. In particular, it was argued that the Convention did not give rise to an obligation on the part of the delegate to act in accordance with its terms nor a legitimate expectation that she would act in that way. The argument emphasised that the Convention formed no part of municipal law at the time the decisions were made.
I agree with Mason CJ and Deane J as to the status of the Convention in Australian law. However, I consider that the Convention is only of subsidiary significance in this case. What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings [48] , which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.
In my view, it is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case. And it may be that, if there is a right of that kind, a decision-maker is required, at least in some circumstances, to initiate appropriate inquiries, as Carr and Lee JJ held should have happened in this case. However, it was not argued that there is any such right and, thus, the case falls to be decided by reference to the requirements of natural justice.
Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection.
The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilised countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. However, that may not be so in the case of a treaty or convention that is not in harmony with community values and expectations.
There is a want of procedural fairness if there is no opportunity to be heard on matters in issue. And there is no opportunity to be heard if the person concerned neither knows nor is in a position to anticipate what the issues are. That is also the case if it is assumed that a particular matter is not in issue and the assumption is reasonable in the circumstances. In my view and for the reasons already given, it is reasonable to assume that, in a case such as the present, the best interests of the children would be taken into account as a primary consideration and as a matter of course. That being so, procedural fairness required that, if the delegate were considering proceeding on some other basis, she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise. It did not, however, require her to initiate inquiries and obtain reports about the future welfare of the children and, in this respect, I agree with the judgment of Mason CJ and Deane J.
I also agree with Mason CJ and Deane J, for the reasons that their Honours give, that the delegate did not proceed on the basis that she was to take the interests of the children into account as a primary consideration. There was, thus, a want of procedural fairness. The appeal should be dismissed.
The principal question in this appeal from an order of the Full Court of the Federal Court is whether Australia's ratification of the Convention on the Rights of the Child gave rise to a legitimate expectation on the part of the respondent or his children that a decision made under the Migration Act 1958 Cth concerning the grant of resident status to him would be made in accordance with Art 3 of the Convention. That Article requires that, in "all actions" concerning children, their "best interests" shall be a primary consideration.
If the principal question is answered in the negative, a further question arises as to whether, in the circumstances of this case, the decision-maker was under an obligation to make further inquiries about the future of the children if the respondent was refused resident status.
In my opinion, no legitimate expectation arose in this case because: (1) the doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation; (2) the doctrine of legitimate expectations does not require a decision-maker to inform a person affected by a decision that he or she will not apply a rule when the decision-maker is not bound and has given no undertaking to apply that rule; (3) the ratification of the Convention did not give rise to any legitimate expectation that an application for resident status would be decided in accordance with Art 3.
Accordingly, the appeal should be allowed because the judgment under appeal held that the respondent had a legitimate expectation that Art 3 would be applied.
In addition, the appeal should be allowed because the decision-maker did regard the best interests of the children as a primary consideration in determining the application for resident status and the circumstances did not give rise to any duty to make further inquiries about the welfare of the children.
The instrument ratifying the Convention on the Rights of the Child was deposited for Australia on 17 December 1990. The Convention entered into force generally on 2 September 1990 and for Australia on 16 January 1991 [49] . Article 3 provides:
The implementation of the Convention is dealt with in Pt II of the Convention [50] . Article 43 establishes a Committee on the Rights of the Child made up of "ten experts of high moral standing and recognized competence" in the field covered by the Convention. Article 44 provides that parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted to give effect to the rights recognised in the Convention and any difficulties "affecting the degree of fulfilment of the obligations" under the Convention. This must be done within two years of the entry into force of the Convention and thereafter every five years.
Mr Ah Hin Teoh, the respondent, is a Malaysian citizen who arrived in Australia on 5 May 1988. He was granted a temporary entry permit which was valid until 5 November 1988. In July 1988, he married Helen Jean Lim who is an Australian citizen. At the time of the marriage, Ms Lim had four children. Following the marriage, Mr Teoh obtained an extension of his entry permit until 5 February 1989. On 3 February 1989, Mr Teoh lodged an application with the Department of Immigration and Ethnic Affairs seeking a grant of resident status.
To qualify for the grant of a permanent entry permit conferring resident status, Mr Teoh had to satisfy one of the conditions set out in s 6A of the Migration Act. Relevantly, that section provided:
(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -
(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit.
Mr Teoh made his application on the basis that he was the spouse of an Australian citizen. He did not rely on s 6a(1)(e) which provides for applications on humanitarian or compassionate grounds. Although the Migration Act was extensively amended in 1989, transitional provisions allowed the application to continue to be treated through the reconsideration process as an application to which s 6A and other relevant provisions of the pre-amendment Act applied.
On 5 January 1989, prior to the lodging of the application, a child was born to Mr Teoh and his wife. Since that time, Mrs Teoh has given birth to two more children, who were born on 7 June 1990 and 20 March 1992 respectively. While the application for resident status was still pending, Mr Teoh was convicted in November 1990 on six counts of being knowingly concerned in the importation of heroin and three counts of being in possession of heroin contrary to the Customs Act 1901 Cth. He was sentenced to a term of six years imprisonment with a non-parole period of two years and eight months. Mrs Teoh was also charged with offences in relation to heroin to which she pleaded guilty and in respect of which she was given an eighteen month suspended sentence in July 1990. In November 1990, Mrs Teoh was charged with further drug related offences. In December 1991, she was sentenced to a term of imprisonment and not released until October 1992. Meanwhile, the children were placed in the care of the State.
On 2 January 1991, Mr Teoh was notified by letter that an officer authorised under the Migration Act had decided to refuse his application for the grant of resident status. Attached to that letter was a document entitled "Reasons for Decision" which stated:
1.1 It is a policy requirement for grant of resident status that applicants be of good character.
1.2 Amongst other points one of the basis [sic] of assessment is whether the applicant has a criminal record.
1.3 All applicants aged 16 years or over are subject to the character requirement.
In this case applicant cannot meet the character requirement as he has a criminal record. Is currently serving 6 years imprisonment with a 2 yr 8 month non-parole period
On completion of sentance [sic] it is likely he will be considered for deportation under section 14(1) of the Migration Act.
On 5 February 1991, Mr Teoh lodged an application for reconsideration of his application for resident status by the Immigration Review Panel. On 25 July 1991, the Panel recommended that the application for reconsideration of the grant of resident status be rejected.
Mrs Teoh, the applicants [sic] sponsor and a former employer have made claims on Compassionate Grounds for the application for Reconsideration to be approved. Mr [sic] Teoh states that she and the 5 children will suffer great financial and emotional hardship if the Applicant is deported. Mrs Teoh is receiving Community support during her husband's imprisonment and will be dependent on Social Services if he [is] forced to leave Australia.
All the evidence for this Application has been carefully examined, including the claims of Mrs Teoh. It is realised that Mrs Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted.
However the applicant has committed a very serious crime and failed to meet the character requirements for the granting of Permanent Residency. The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh's criminal record it is recommended that this application is rejected.
Among the documents considered by the Panel was a document, dated 13 June 1991, apparently from within the Department which stated, inter alia:
Mr Teoh has claimed that if his residence application is refused it will cause hardship to his wife and children as he will not be able to provide them with assistance.
While it is reasonable to accept that there are compassionate factors present in this case, it must also be considered that Mr Teoh has been found guilty of committing a serious offence. The claim that he will be unable to provide assistance to his family is discounted by the fact that he is presently in prison, and will remain in prison at least until July 1993. He therefore is not in a position to provide assistance to his family at present.
Mr Teoh's family are receiving community support while he is in prison and this situation may have to continue if he is required to leave Australia. However, I believe that the serious nature of his offences outweighs the compassionate factors therefore I recommend that refusal of this application.
The recommendation of the Panel was accepted by the Minister's delegate on 26 July 1991. On 17 February 1992, a delegate of the Minister made an order under s 60 of the Migration Act that Mr Teoh be deported from Australia.
In 1993, Mr Teoh sought judicial review of the decision of 26 July 1991 that refused the grant of resident status and of the decision of 17 February 1992 that ordered his deportation. French J rejected Mr Teoh's application, but an appeal to the Full Federal Court succeeded [51] . The Minister, pursuant to the grant of special leave to appeal, now appeals to this Court.
Departmental policy concerning the grant of resident status was contained in a document entitled "Integrated Departmental Instructions Manual, Grant of resident status, Number 17".
1.1 It is a policy requirement for grant of resident status that applicants be of good character.
• whether the applicant is likely to be a threat to Australia's security by being reasonably likely to engage in or be involved in acts of espionage, sabotage, politically motivated violence or foreign interference, or in promotion of communal violence
• whether the applicant has other history of criminal activity, anti-social behaviour or immigration offences.
1.3 All applicants aged 16 years or over are subject to the character requirement.
3.2 Penal or other aspects: Applicants who come within Section 16(1)(c) of the Migration Act are not considered to meet the good character requirement and their applications would normally be refused unless they could show strong cause why policy should be waived in their case. Decisions on such cases would normally be taken only by Regional Directors. Some may warrant Ministerial consideration.
3.3 Applicants who do not come within Section 16(1)(c) of the Act may also fail to meet the good character requirement. The nature, number or recency of the offences or activities concerned and the potential for continuance or recidivism may be such as to warrant refusal on the overall merits of the case. Similar considerations apply to applicants who have been dishonourably discharged from military service.
Section 16 of the Migration Act 1958 provided that:
(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia is not, or was not at the time of that entry, an Australian citizen and who -
(c) at the time of entry is or was a person of any of the following descriptions, namely:
(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;
(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year;
that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section.
Neither s 16(1)(c) nor par 3.2 of the departmental policy was directly applicable to the present case because Mr Teoh was convicted of his offences after his entry into Australia. But together with par 3.3 they indicate that an applicant will ordinarily be refused resident status when he or she has been given a lengthy prison sentence.
For over twenty-five years, the courts have held that the rules of natural justice protect the legitimate expectations as well as the rights of persons affected by the exercise of power invested in a public official. The doctrine of legitimate expectations was invented by Lord Denning MR inSchmidt v Secretary of State for Home Affairs [52] . In its original form, it was a device that permitted the courts to invalidate decisions made without hearing a person who had a reasonable expectation, but no legal right, to the continuation of a benefit, privilege or state of affairs. It, therefore, helped to protect a person from the disappointment and often the injustice that arises from the unexpected termination by a government official of a state of affairs that otherwise seemed likely to continue. In Attorney-General (Hong Kong) v Ng Yuen Shiu [53] , the Judicial Committee of the Privy Council extended the application of the doctrine of legitimate expectations to cases where a public official had undertaken that he or she would act in a certain way in making a decision. So in Haoucher v Minister for Immigration and Ethnic Affairs [54] , this Court held that, if a public official had undertaken to exercise a power only when certain conditions existed, a person affected by the exercise of the power had a right to be informed of the matters that called for the exercise of the power.
After this Court's decisions in Kioa v West [55] and Annetts v McCann [56] , however, a question must arise as to whether the doctrine of legitimate expectations still has a useful role to play. Those cases decided that, where a statute empowers a public official or tribunal to make an administrative decision that affects a person, then, in the absence of a contrary legislative indication, the critical question is not whether the doctrine of natural justice applies but "what does the duty to act fairly require in the circumstances of the particular case?" [57] . In Haoucher [58] , Deane J expressed the view that the law seemed "to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making".
I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker "to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it" [59] . If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?
Since Kioa, however, cases in this Court [60] have continued to use the concept of legitimate expectation to enliven the rules of procedural fairness. Furthermore, both in this Court and in the Full Court of the Federal Court, the argument in the present case proceeded upon the basis that, in so far as the right to procedural fairness depended upon Art 3 of the Convention, it was necessary to establish that the terms of the Convention gave rise to a legitimate expectation that the Minister's delegate would comply with the requirements of Art 3 in reaching a decision concerning the residential status of Mr Teoh. Accordingly, I will deal with the appeal on the basis that the respondent must establish that the terms of the Convention gave rise to a legitimate expectation that the Minister's delegate would comply with the terms of the Convention.
Hitherto, the view has been taken that circumstances do not give rise to a legitimate expectation sufficient to enliven the rules of procedural fairness unless the decision-maker has given an express or implied undertaking to persons such as the person affected or unless that person enjoys a benefit, privilege or state of affairs that seems likely to continue in the absence of special or unusual circumstances [61] . In 1988, one writer summarised the cases in which legitimate expectations have been held to arise as follows [62] :
[F]or an expectation to be "legitimate" in the required sense there must be positive grounds which are sufficient to render it objectively justifiable
Our analysis of the cases suggests that there are four principal sources which the courts recognise as capable of rendering expectations legitimate or reasonable; (1) a regular course of conduct which has not been altered by the adoption of a new policy; (2) express or implied assurances made clearly on behalf of the decision-making authority within the limits of the power exercised; (3) the possible consequences or effects of the expectation being defeated especially where those consequences include economic loss and damage to reputation, providing that the severity of the consequences are a function of justified reliance generated from substantial continuity in the possession of the benefit or a failure to be told that renewal cannot be expected; and (4) the satisfaction of statutory criteria. (Footnotes omitted.)
Prior to the present case, that summary seemed an accurate statement of the circumstances that could give rise to a legitimate expectation sufficient to enliven the rules of procedural fairness. None of them is present in this case. If Mr Teoh is to succeed, the doctrine of legitimate expectations will have to be extended. The Convention was not an instrument that the delegate was required to consider. Nor had the delegate undertaken to consider or apply its provisions. Moreover, neither Mr Teoh nor any member of his family had asked the delegate to take the provisions of Art 3 into account. It is only too obvious that they were oblivious of its existence.
A legitimate expectation may give rise to a requirement of procedural fairness but it does not give substantive protection to any right, benefit or privilege that is the subject of the expectation [63] . So even if the respondents had a legitimate expectation concerning the Convention, the delegate was not obliged to apply the Convention.
The next question is whether the rules of procedural fairness required the delegate to inform the respondents that Art 3 would not be applied even though reasonable persons would expect it to be applied. In my opinion, the delegate was not required to notify the respondents that Art 3 would not be applied. As long as a decision-maker has done nothing to lead a person to believe that a rule will be applied in making a decision, the rules of procedural fairness do not require the decision-maker to inform that person that the rule will not be applied. Fairness does not require that a decision-maker should invite a person to make submissions about a rule that the decision-maker is not bound, and has not undertaken or been asked, to apply. Indeed, in those circumstances, a person cannot have a reasonable expectation that the rule will be applied.
If a person asks a decision-maker to apply a rule which the decision-maker is not bound to apply, the rules of procedural fairness do not require the person affected to be informed that that rule will not be applied. It seems anomalous, therefore, to insist that a decision-maker must inform a person that a rule will not be applied merely because, objectively, reasonable persons have an expectation that such a rule would be applied. It seems even more anomalous that a person should have to be notified that a rule will not be applied if he or she is not even aware of the rule's existence. In my opinion, neither fairness nor good administration requires a decision-maker to inform a person that a rule will not be applied when the decision-maker has not led that person to believe that it would be applied.
Furthermore, the doctrine of procedural fairness is concerned with giving persons the opportunity to protect their rights, interests and reasonable expectations from the adverse effect of administrative and similar decisions. If the doctrine of legitimate expectations were now extended to matters about which the person affected has no knowledge, the term "expectation" would be a fiction so far as such persons were concerned. It is true that an expectation can only give rise to the right of procedural fairness if it is based on reasonable grounds [64] . It must be an expectation that is objectively reasonable for a person in the position of the claimant. But that does not mean that the state of mind of the person concerned is irrelevant. If the statement of Toohey J in Haoucher [65] that "[l]egitimate expectation does not depend upon the knowledge and state of mind of the individual concerned" is meant to maintain the contrary proposition, I am unable to agree with it. If a person does not have an expectation that he or she will enjoy a benefit or privilege or that a particular state of affairs will continue, no disappointment or injustice is suffered by that person if that benefit or privilege is discontinued. A person cannot lose an expectation that he or she does not hold. Fairness does not require that a person be informed about something to which the person has no right or about which that person has no expectation.
Even if a legitimate expectation did arise in a case such as the present, all that procedural fairness would require would be for the decision-maker to inform the person affected that the decision-maker would not be acting in the manner expected. As I have indicated, a legitimate expectation gives rise to a requirement of procedural fairness but it does not give substantive protection to any right, benefit or privilege that is the subject of the expectation [66] . Once the person was notified, the decision-maker would seem to have discharged his or her duty of procedural fairness. It may be that procedural fairness would also require the decision-maker to consider any subsequent submission that the rule should be applied. If it does, it merely shows how artificial is the doctrine of legitimate expectations in cases such as the present. Since the decision-maker is under no obligation to apply the rule, he or she would be at liberty to act in disregard of any subsequent submission that the rule should be applied.
It seems a strange, almost comic, consequence if procedural fairness requires a decision-maker to inform the person affected that he or she does not intend to apply a rule that the decision-maker cannot be required to apply, has not been asked or given an undertaking to apply, and of which the person affected by the decision has no knowledge.
The terms of the Convention did not give rise to a legitimate expectation in this case
However, if, contrary to my opinion, the doctrine of legitimate expectations is to be extended to cases where a person has no actual expectation that a particular course will be followed or a state of affairs continued, the terms of the Convention did not give rise to any legitimate expectation that the Minister or his delegate would exercise their powers under the Act in accordance with Australia's obligations under the Convention.
Conventions entered into by the federal government do not form part of Australia's domestic law unless they have been incorporated by way of statute [67] . They may, of course, affect the interpretation or development of the law of Australia. Thus, in interpreting statutory provisions that are ambiguous, the courts will "favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty" [68] . In that respect, conventions are in the same position as the rules of customary international law [69] . International conventions may also play a part in the development of the common law [70] . The question in this case, however, is not concerned with the interpretation of a statute or with the development of the common law. It is whether the ratification of the Convention on the Rights of the Child gave rise to a legitimate expectation that its terms would be implemented by the decision-maker in this case.
In exercising the discretion under the Migration Act in circumstances such as the present case, the terms of the Convention were matters which the Minister or his delegate could take into account [71] . Nothing in the Act indicates that the terms of the Convention were outside the range of matters that a decision-maker could properly take into account. Furthermore, the Minister conceded that, in the circumstances of this case, the break up of the family unit was a matter of major significance. But that does not mean that the residents of Australia had a legitimate expectation that, upon the ratification of the Convention, federal officials and statutory office holders would act in accordance with the Convention.
In international law, conventions are agreements between States. Australia's ratification of the Convention is a positive statement to other signatory nations that it intends to fulfil its obligations under that Convention. If it does not do so, it is required to disclose its failure in its reports to the Committee on the Rights of the Child [72] . I am unable to agree with the view expressed by Lee J in the Full Court that the "ratification of the Convention by the Executive was a statement to the national and international community that the Commonwealth recognised and accepted the principles of the Convention" [73] (my emphasis). The ratification of a treaty is not a statement to the national community. It is, by its very nature, a statement to the international community. The people of Australia may note the commitments of Australia in international law, but, by ratifying the Convention, the Executive government does not give undertakings to its citizens or residents. The undertakings in the Convention are given to the other parties to the Convention. How, when or where those undertakings will be given force in Australia is a matter for the federal Parliament. This is a basic consequence of the fact that conventions do not have the force of law within Australia.
If the result of ratifying an international convention was to give rise to a legitimate expectation that that convention would be applied in Australia, the Executive government of the Commonwealth would have effectively amended the law of this country. It would follow that the convention would apply to every decision made by a federal official unless the official stated that he or she would not comply with the convention. If the expectation were held to apply to decisions made by State officials, it would mean that the Executive government's action in ratifying a convention had also altered the duties of State government officials. The consequences for administrative decision-making in this country would be enormous. Junior counsel for the Minister informed the Court that Australia is a party to about 900 treaties. Only a small percentage of them has been enacted into law. Administrative decision-makers would have to ensure that their decision-making complied with every relevant convention or inform a person affected that they would not be complying with those conventions.
I do not think that it is reasonable to expect that public officials will comply with the terms of conventions which they have no obligation to apply or consider merely because the federal government has ratified them. There can be no reasonable expectation that State government officials will comply with the terms of a convention merely because the Executive government of the Commonwealth has ratified it. In many cases, State governments will be strongly opposed to the federal government's ratification of an international convention. Further, many federal administrative decisions are made by public officials and tribunals that are independent of the Executive government of the Commonwealth. I do not think that there can be a reasonable expectation that these officials and tribunals will necessarily act in accordance with the terms of a convention which does not have the force of law. Even in the case of decisions made by officers employed in federal government departments, it seems difficult, if not impossible, to conclude that there is a reasonable expectation that the terms of a convention will be complied with forthwith upon ratification. The nature of the obligations undertaken may make it impracticable to implement them forthwith. Total compliance with the terms of a convention may require many years of effort, education and expenditure of resources. For these and similar reasons, the parties to a convention will often regard its provisions as goals to be implemented over a period of time rather than mandates calling for immediate compliance. That being so, I do not think that members of the Australian community can hold a reasonable expectation that, upon the ratification of a convention, its provisions will thereafter be applied to any decision falling within the scope of the convention. Unless a Minister or his or her officials have given an indication that the provisions of a convention will henceforth be applied to decisions affecting that ministry, it is not reasonable to expect that the provisions of that convention apply to those decisions.
Even when federal statute law recognises, or provides the means for recognising, an international convention, I do not think that a legitimate expectation arises that federal officials will apply the terms of the convention. The mechanism by which the federal government has chosen to implement many conventions relating to human rights including the present Convention, for example, is through the Human Rights and Equal Opportunity Commission Act 1986 Cth (the HREOC Act). Upon a convention being declared an "international instrument relating to human rights and freedoms" under s 47(1) of that Act, the convention becomes a "relevant international instrument" (s 3(1)). Consequently, the rights outlined in the convention become "human rights" for the purposes of the Act (s 3(1)). This enlivens those provisions of the Act concerning human rights and allows the Commission to examine enactments or proposed enactments to ascertain whether they are, or would be, inconsistent with or contrary to any human right (s 11(1)(e)); to inquire into acts or practices that may be inconsistent with any human right (s 11(1)(f))); to report to the Minister as to the action that needs to be taken by Australia in order to comply with the convention (s 11(1)(k)); to prepare and publish guidelines for the avoidance of acts or practices that may be inconsistent with or contrary to the rights in the convention (s 11(1)(n)) and to intervene (as the Commission did in this case) in proceedings that involve human rights issues (s 11(1)(o)). The HREOC Act recognises that there may exist acts and practices that are inconsistent with or contrary to Australia's human rights obligations as defined by the Act [74] . The mechanisms for remedying those inconsistencies are those provided in the Act. I find it difficult to accept that Parliament intended that there should be remedies in the ordinary courts for breaches of an instrument declared for the purpose of s 47 of the HREOC Act when such remedies are not provided for by the Act.
At the relevant times in the present case, the Convention had not been declared to be an international instrument under the HREOC Act or otherwise acted on or been recognised by the Parliament. In January 1993, however, the Convention was declared to be an international instrument for the purposes of that Act [75] . Thus, if the decision affecting Mr Teoh and his family had occurred after the Convention was declared to be an international instrument, either he or someone on behalf of his children could have made a complaint to the Commission that the Minister was in breach of the Convention. They would be entitled to seek redress through the mechanism of the HREOC Act for breach of the Convention. If, after due inquiry under Pt II, Div 3 of the Act, the Commission considered that the complaint was made out, it could take steps to have the matter settled or report the breach to the Minister. But I do not think that they could contend that the decision of the Minister and his delegate was void. That is because neither the ratification of the Convention nor its declaration under s 47 gave rise to any legitimate expectation that the Minister or his delegates would comply with the Convention. There is no legitimate expectation that a federal official will act in accordance with a rule that that official is at liberty to disobey and about which the official has given no promise or undertaking.
Furthermore, the terms of the departmental policy referred to above leave little room for a reasonable expectation that the best interests of an applicant's children would be a primary consideration in an application for resident status. Paragraph 3.2 of the policy, although not directly applicable in this case, makes it plain that an application by a person who falls within s 16(1)(c) of the Act will "normally be refused unless they could show strong cause why [the] policy should be waived in their case". This strong and specific statement leaves no room for a reasonable expectation that the best interests of an applicant's children will be a primary consideration in determining an application. Other provisions of the policy make it plain that an applicant's involvement in violence, espionage, sabotage, general criminal or anti-social behaviour will ordinarily result in the rejection of an application. There is, therefore, little, if any ground, in the policy for a reasonable expectation that the best interests of an applicant's child will always be a primary consideration in the decision-making process. Its terms are not consistent with the alleged legitimate expectation.
Even if Art 3 is generally applicable to actions under the Migration Act, I do not think that Art 3 was intended to apply to an action that has consequences for a child but is not directed at the child. Article 3 will have enormous consequences for decision-making in this country if it applies to actions that are not directed at but merely have consequences for children. It seems unlikely, for example, that it was the intention of the article that a court must make the best interests of a child a primary consideration in sentencing a parent. And there are many other areas of administration where it could hardly have been intended that the best interests of the child were to be a primary consideration in actions that have consequences for a child. Must a public authority make the best interests of a child a primary consideration in determining whether to acquire compulsorily the property of a parent? Must the Commissioner of Taxation make the best interests of a child a primary consideration in exercising his powers under the Income Tax Assessment Act 1936 Cth? Questions of this sort make it likely that the provisions of Art 3 were intended to apply to "actions" that were directed at children and not those that merely have consequences for children.
In my opinion, therefore, Art 3 was not intended to apply to an application by an adult person for resident status. Here the action was directed at Mr Teoh. It was not directed at the children. I do not think that Art 3 required the Minister's delegate to make the best interests of the children a primary consideration in deciding Mr Teoh's application any more than that article required the judge who sentenced him to make the best interests of the children a primary consideration in the sentencing process.
In my view, neither Mr Teoh nor the members of his family had any legitimate expectation that his application for resident status would be decided by reference to what were the best interests of the children as stipulated in Art 3 of the Convention. But in any event, even if, contrary to my view, such an expectation did arise, I think that only a very literal reading of Art 3, the decision of the delegate and the departmental documents would require a conclusion that the best interests of the children were not a primary consideration in the decision to refuse Mr Teoh resident status.
Did the delegate fail to act in accordance with the principle in Art 3?
The exact application of Art 3 is far from clear. What Lord Denning MR said in R v Chief Immigration Officer, Heathrow Airport; Ex parte Salamat Bibi [76] concerning the European Convention for the Protection of Human Rights and Fundamental Freedoms applies to the Convention and its provisions. His Lordship said:
The Convention is drafted in a style very different from the way which we are used to in legislation. It contains wide general statements of principle. 1. [1976] 1 WLR 979 at 985; [1976] 3 All ER 843 at 847.
Article 3(1) insists that "[i]n 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". But no guidance is given as to what weight is to be given to those interests in an "action". In the context of an application for resident status, it cannot require any more than that the delegate recognise that the interests of the children are best served by granting the parent resident status. But that does not mean that those interests must be given the same weight as the bad character of the applicant. The use of the word "a" indicates that the best interests of the children need not be the primary consideration. And, as Carr J recognised, a primary consideration may have to accommodate itself to other overriding interests [77] .
On the evidence, the future of the family and the children was a primary consideration of the delegate. Both in the recommendation of the Immigration Review Panel and the departmental document prepared for the Panel, the welfare of the children and the break up of the family were regarded as constituting the compassionate grounds which could justify the grant of resident status, notwithstanding the bad character of Mr Teoh. In addition, those making decisions had before them letters from the applicant's wife arguing that a refusal of resident status would have a devastating effect on the children. I find it difficult to accept that the delegate in considering the compassionate grounds did not consider what the best interests of the child required. The effect that refusal of the application would have on the family was the principal matter relied on in support of the application after the application was initially refused on 2 January 1991. The whole case for the respondent was that the interests of the children and Mrs Teoh required the grant of the application. I cannot accept that the delegate did not consider the application with that in mind. On the assumption that there was a legitimate expectation of compliance with the terms of the Convention, the substance of the expectation was not denied. Accordingly, no denial of procedural fairness occurred.
It therefore becomes necessary to examine the other question raised in this appeal - whether "the proper consideration of the break-up of the family unit as a relevant matter that the decision-maker was bound to take into account necessarily involved the making of further inquiry into the facts by the decision-maker".
In a number of cases, the Federal Court has found that a failure to make further inquiries constituted an improper exercise of the power granted by the statute or a failure to take into account a relevant consideration in exercising that power. In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry [78] , (2) the information before the Minister was not up to date [79] or (3) the absence of information before the Minister resulted from the Minister's officers misleading the applicant [80] . This case does not fit into any of those categories.
The impact of the deportation on the family of Mr Teoh was fully considered by the Minister's delegate. Indeed, apart from Mr Teoh's criminal convictions, his ties to the family and his role in supporting his and his wife's children were the principal issues in the application. There is no ground for concluding that the delegate failed to consider the matter properly. It may be that further inquiries about the plight of the family may have led the delegate to place more weight on what would happen to the children if the application were refused. But this is a matter of weight. The weight that is given to a particular consideration is a matter for the decision-maker, not for the courts in an application for judicial review. This is not a case where the Minister's delegate simply discounted the assertions of hardship to the family. The delegate was asked to consider the position of the family, had information about the family, and made her decision on that basis. That she gave greater weight to the requirement of good character than to the welfare of the children is irrelevant for present purposes. The Migration Act entrusts the weighing of such considerations to administrative officials. It is a consequence of the doctrine of separation of powers that the decisions of administrative officials acting within their powers must be accepted by the courts of law whatever the courts may think of the merits of particular administrative decisions.
For these reasons, further inquiries were not required to fulfil any of the delegate's statutory or common law obligations.
The appeal should be allowed. The decision of the Full Federal Court should be set aside. There should be no order as to the costs of the proceedings in this Court or the Federal Court.
Minister of State for Immigration and Ethnic Affairs
Teoh
High Court of Australia Mason CJ Deane, Toohey, Gaudron and McHugh JJ Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
(1994) 49 FCR 409
(1947) 74 CLR 492
(1948) 77 CLR 449
(1973) 128 CLR 557
(1982) 148 CLR 636
(1982) 153 CLR 168
(1985) 159 CLR 550
(1992) 177 CLR 292
(1992) 176 CLR 1
(1945) 70 CLR 60
(1992) 175 CLR 1
(1988) 12 NSWLR 558
(1987) 164 CLR 1
(1985) 8 FCR 167
(1985) 6 FCR 155
(1989) 91 ALR 39
(1993) 45 FCR 418
(1992) 37 FCR 298
(1994) 33 NSWLR 172
(1990) 169 CLR 648
(1993) 16 Fam LR 982
(1990) 14 Fam LR 427
(1992) 175 CLR 218
(1990) 170 CLR 596
(1990) 170 CLR 1
(1992) 175 CLR 564
(1993) 32 NSWLR 262
(1994) 33 NSWLR 680
(1986) 162 CLR 24
(1988) 20 FCR 363
(1987) 15 FCR 4
(1993) 40 FCR 183