4.1.3 Ground 1: Was the Tribunal required to make a "determination" as to the best interests of the applicant's daughter by paragraph 11.2 of Direction No. 65?
38 Ground 1 takes issue with the Tribunal's finding at [51] that the Tribunal was "not satisfied it is in the best interests of Mr Nigam's daughter that his visa not be refused". The applicant submits that paragraph 11.2 of Direction No. 65 imposes an obligation upon a decision-maker to make a finding of fact - a "determination" - and that a finding as in the present case of a "lack of satisfaction" is not sufficient. Paragraph 11.2 of Direction No. 65 provides that:
11.2 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child. (emphasis added)
39 The applicant submits that properly construed, paragraph 11.2 "requires a 'determination' - that is an establishment of a fact - about whether refusal is or is not in the best interests of the child." In this regard, the applicant contends that paragraph 11.2 is different from most of the other factors mentioned in Part B of Direction No. 65 in respect of which the obligation is to require only that they be considered or taken into account, or that regard must be had to them. On this basis the applicant submitted that:
… the Tribunal was required to make the determination stated in para 11.2 and then weigh this, along with the other primary and 'lesser' considerations about which it was to have regard, consider or take into account, in deciding whether the discretion should be exercised to refuse the applicant's visa application. So construed the requirement of making a "determination" under para 11.2(1) is not to be read down, and… the matters listed in para 11(4), which were required to have been considered where relevant, inform the determination required pursuant to para 11.2(1). Thus, para 11.2(1) requires, as a matter of law, the determination of the matter there mentioned. In addition, the matter stated in para 11.4(b) was required, as a matter of law to have been considered. The failure to meet either of those requirements was ultimately a breach of s. 499(2A).
40 On the other hand, the Minister submitted that paragraph 11.2(1) of Direction No. 65 does not in all cases require a decision-maker to whom the Direction applies to make a positive finding that the best interests of the children are either that the visa be refused or be granted. I agree. As the Minister submitted, it is for the decision-maker to determine, conscientiously, the weight to be given to the evidence and whether it is satisfied on the basis of the evidence that a given finding can or should be made. That construction is consistent with the expressed purpose of the Direction and its intention to provide a "framework" of principles within which decision-makers should approach their task.
41 This construction is consistent with that adopted by the majority in Paerau, contrary to the applicant's submission. In Paerau, the Tribunal found that it was unable to make a determination as to whether or not visa cancellation was in the best interests of Mr Paerau's children, due to a paucity of evidence on the issue. As earlier mentioned, that decision concerned Direction No. 55, which was the predecessor to Direction No. 65, and was not for present purposes materially different. In particular, in common with Direction No 65, Direction No. 55 required that the Tribunal make a "determination" about whether cancellation is or is not in the best interests of minor children and that, "where relevant to the individual case", the Tribunal must take that consideration into account as a primary consideration in the manner set out in the Direction.
42 Thus, Buchanan J concluded that:
27. In my respectful view, there could be no objection in any case to the AAT [Tribunal] concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case.
43 I agree with his Honour's analysis which I consider is supported by a proper construction of the Direction. Thus in Paerau I held that the obligation to make a determination about where the best interests of the child lie must be read subject to the obligation to take primary and other considerations into account where "relevant to the individual case". In this regard, I held that:
104 In my view, the requirement that the consideration be "relevant" in cl 8(1) of Direction No. 55 carries with it the implication that there must be some evidence about the consideration that the decision-maker considers is of some probative value. Absent such evidence or a legislative presumption that applies in the absence of contrary evidence, the consideration could not meaningfully be taken into account. This construction accords with the ordinary meaning of "relevant" which includes "legally sufficient, adequate, or pertinent" (Oxford English Dictionary) or "bearing upon or connected with the matter in hand; to the purpose; pertinent" (Macquarie Dictionary).
105 Provided, therefore, that such judgments as to relevance are made by the decision-maker within lawful boundaries, the question as to whether particular evidence can be given any, and, if so what, weight falls within the exclusive province of the administrative decision-maker. Weight may be affected by such matters as provenance (a matter to which cl 8(2) directs attention), credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse.
44 In other words, the question of where the best interests of the child in a case such as the present is plainly raised as an issue. Nonetheless, that consideration cannot play an active part in the balancing exercise to be undertaken in accordance with paragraph 8 of the Direction between the different considerations where the decision-maker, as here, is not satisfied on the evidence that the best interests of the child favour the grant of visa but equally is not satisfied that they do not. That construction accords with a common sense approach to the decision-making process required overall by Direction No. 65 and its predecessor, Direction No. 55. As Buchanan J said in Paerau (in a passage with which I agreed at [107]):
18 It is basic, of course, that any determination by the AAT [Tribunal] about a matter as fundamental and important as the best interests of a child should be the result of a reasoned assessment of material of sufficient probative value that the determination be a sober and considered one, and not capricious, speculative or merely a guess.
45 The decision in Paerau is consistent with the earlier decision of the Full Court in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, on which Buchanan J in particular in Paerau relied. In Jones, there had been evidence before the decision-maker but the Tribunal found that it was unable on the evidence before it to make a material finding of fact either way for reasons which it clearly explained. Importantly, however, as Buchanan J held in Paerau at [20], each of the members of the Court in Jones rejected the submission that an obligation to find facts left no room for a neutral outcome or, as Carr J explained at 46, a decision in which "[t]he decision-making pendulum remained in equilibrium", see also Jones at 38 (Jenkinson J), 50 (Nicholson J). To hold otherwise, as Nicholson J held at 50, "would be in effect to require the Tribunal to have made findings when it had expressly found an absence of evidence to support them."
46 It follows, notwithstanding the careful submissions by counsel for the applicant to the contrary, that it was open to the Tribunal to find that it was not satisfied that it was in the best interests of Mr Nigam's daughter that his visa be granted. Paragraph11.2 of Direction No. 65 does not require that the Tribunal make a determination in the sense of making a positive finding of fact one way or the other if, as here, the Tribunal finds that it cannot on the state of the evidence.
47 Furthermore, the analysis of the Tribunal's reasons at [35] above exposes that the Tribunal reached that view by a conscientious evaluation of the evidence and found on rational grounds that the evidence could not support a finding either way. In particular, it is clear that, notwithstanding the applicant's evidence as to his intentions, the Tribunal was unable to reach a view on whether the applicant could provide the stable relationship which his daughter required when he had not sought to put those intentions into action, his role as a positive parental figure was largely untested, and there were aspects of his history which raised concerns in the Tribunal's view about his ability to do so.