DISCUSSION
10 In Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 (Teoh) the High Court considered the effect of the ratification by Australia and entry into force of the United Nations Convention on the Rights of the Child (the Convention), in particular, Article 3 which provides that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
11 At 291-292 of Teoh Mason CJ and Deane J held that Article 3 involves a "positive statement" which "is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of children as 'a primary consideration'… if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course".
12 The Full Court of the Federal Court applied this reasoning in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568 (Wan). The Court (Branson, North and Stone JJ) referred to the decision of another Full Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 (Vaitaiki) in which Burchett J had observed (at 618) that "the question which the Tribunal was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported". In Wan at [26] Branson, North and Stone JJ said that:
Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. That this is the starting point for the Tribunal's consideration follows from Teoh and from Vaitaiki.
13 They continued at [28]:
In giving consideration, as it had done in Vaitaiki, to what the children might do if their father were required to cease living in Australia, the Tribunal was not undertaking an inherently inappropriate task. Such consideration was capable of assisting the Tribunal in determining whether the strength of any other consideration or considerations outweighed the best interests of the children. However, it was not a useful thing to do without the Tribunal having first identified what the best interests of the children indicated should be decided with respect to Mr Wan's visa application.
14 They made the same point at [31] in these terms:
…the Tribunal finds that matters touching on the interests of the children do not "outweigh the strength of community expectations". That is, the Tribunal does not in fact treat the best interests of the children as a primary consideration but rather treats considerations touching on community expectations as considerations which should prevail unless "outweighed" by other considerations. As Mason CJ and Deane JJ pointed out in Teoh at 292:
"A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it."
15 And at [32] Branson, North and Stone JJ said the Tribunal:
was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
16 Although Vaitaiki and Wan both concerned decisions of a tribunal they applied Teoh, which concerned a decision of the Minister. Accordingly, consistent with these decisions (which the Minister accepted I would apply whilst formally submitting that Teoh was wrongly decided), I consider that the applicant had a legitimate expectation that the Minister would treat the best interests of his children as a primary consideration in deciding whether or not to cancel his visa. Failure to do so would be in breach of the requirements of procedural fairness.
17 The Minister submitted that he had treated the best interests of the children as a primary consideration. He said he had done so at para 17 of the statement of reasons. The Minister submitted that consideration of the balance of the statement of reasons supports the inference that the Minister, in effect, assumed that the best interests of the applicant's children would be for the applicant's visa not to be cancelled. The Minister then found that another consideration, the risk of harm to the Australian community, outweighed the best interests of the applicant's children. According to the submissions for the Minister, the Minister's willingness to assume that the best interests of the applicant's children was for the applicant's visa not to be cancelled meant that it was unnecessary for the Minister to express any firm findings about the nature and extent of their interests.
18 I do not accept these submissions. Consideration of the Minister's decision and statement of reasons as a whole supports the inference that the Minister did not in fact treat the best interests of the applicant's children as a primary consideration in deciding whether or not to cancel the applicant's visa. First, in the decision itself there is no mention of the interests of the applicant's children although other relevant findings and considerations are mentioned. Second, in the summary at paras 9 and 10 of the statement of reasons the Minister refers to the fact that he gave "primary consideration to the protection of the Australian community…". There is no mention of the interests of the applicant's children in those paragraphs other than perhaps obliquely under the general rubric of "any relevant international obligations". Third, when dealing with the "best interests of the child" the Minister says he gave "primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of [the applicant's] visa". However, on that and each subsequent occasion when dealing with the applicant's children, the Minister's reasons remain at the level of mere hypothesis about their best interests. Hence, the Minister accepted that their interests "may be significantly affected by cancellation of [the applicant's] visa" (at para 17). He also accepted at para 18 that the children "may suffer emotional and financial hardship if [the applicant's] visa is cancelled". At para 22 he accepted that the mothers of the children "may experience hardship if they became solely responsible for the welfare of their children". At para 26 he accepted that "it may be in [the children's] best interests for [the applicant's] visa not to be cancelled".
19 Nothing in the language of the Minister's decision or reasons suggests the Minister assumed that the children's best interests were for their father's visa not to be cancelled and that the Minister weighed the risk of harm to the Australian community from the applicant's possible re-offending against those interests. To the contrary, the Minister's reasons as a whole indicate that the Minister either found or assumed (it is not clear which) only that it may be in the children's best interests for their father's visa not to be cancelled, presumably on the basis that their interests may be significantly affected (again, presumably adversely by reason of the fact that they may suffer emotional and financial hardship) by cancellation of their father's visa.
20 Accordingly, when he came to consider whether the risk of harm to the Australian community outweighed the best interests of the applicant's children the Minister weighed the risk of harm to the Australian community created by even a small risk of the applicant re-offending (on the one hand) against the fact or assumption that it may be in the children's best interests for the applicant's visa not to be cancelled (on the other hand). Given this balancing exercise, where the children's best interests were left at the level of mere hypothesis, it is hardly surprising that the positive finding of a risk of harm to the Australian community from even the small risk of the applicant re-offending outweighed the hypothesis of possible harm to the best interests of the applicant's children should his visa be cancelled.
21 Applying the reasoning in Vaitaiki and Wan it is apparent that the Minister did not in fact treat the best interests of the applicant's children as a primary consideration in the decision whether or not to cancel the applicant's visa. The Minister could not do so because he never confronted the central question of what the best interests of the children required him to decide with respect to the proposed deportation of their father. Not having done so as his starting point, the Minister also could not then assess whether any other consideration outweighed the best interests of the children understood as a primary consideration. For these reasons the Minister departed from the legitimate expectation founded on the Convention and thus denied the applicant procedural fairness. The Minister's decision is thus vitiated for jurisdictional error.
22 Having so found it is not strictly necessary to deal with the other grounds on which the applicant relied but I propose to do so, albeit briefly.
23 The applicant asserted jurisdictional error by denial of procedural fairness in the Minister not having considered the best interests of the applicant's children when making a finding as to the national interest. I do not consider that the obligation identified in Teoh extends to interim factual findings. Rather, the obligation attaches to the "action". Under s 501A(2) the relevant action is the decision whether or not to cancel a person's visa.
24 The applicant also asserted jurisdictional error by denial of procedural fairness in the Minister not having considered the best interests of the applicant's children in the context of Direction 41. The Minister, however, was not bound to consider Direction 41. Moreover, nothing the Minister said could have given rise to any legitimate expectation that the Minister necessarily would apply Direction 41. To the contrary, in the notice of intention the Minister said "the Minister may have regard to, but is not bound by, the factors in" Direction 41.
25 The applicant asserted a failure to take into account relevant material being a document with which the Minister was provided entitled "International Obligations and Humanitarian Concerns Assessment". Nothing in the statutory scheme suggests that this was a document the Minister was bound to consider. Insofar as the document refers to substantive considerations (such as the best interests of the applicant's children) the source of the obligation to consider that matter is not the document but the entry into force of the Convention. In any event, it is not possible to infer that the Minister took into account only those parts of the document unfavourable to the applicant. The Minister referred to the document at para 20 of the statement of reasons. The fact that the Minister used part of the document to assess the risk of harm to the applicant should he be deported does not found an inference that the Minister ignored the balance of the document.
26 The applicant asserted that the Minister failed to perform his statutory duty or applied the wrong test. In this regard the applicant relied on the fact that the Minister, at para 26, said "I found I could not be satisfied that there was no risk that he would re-offend" and "I concluded that even a relatively small risk of him re-offending presented an unacceptable risk of harm to the Australian community". The applicant submitted that this involved the Minister in failing to exercise the statutory discretion on the basis that, unless the applicant could establish that there was no risk whatsoever that he would re-offend, the discretion necessarily would be exercised against him. The applicant said the "no risk" of re-offending test effectively denied the existence of the discretion.
27 I do not think that that the Minister was establishing a test in respect of the risk of re-offending. Rather, the Minister was drawing a conclusion about the level of risk to the Australian community he considered appropriate having regard to the nature of the applicant's crime. This was the task which the statute vested in the Minister. The decision did not miscarry because the Minister judged that even a small risk of re-offending created a risk of harm to the Australian community and consequently the fact that the Minister could not be satisfied that there was no risk of the applicant re-offending was relevant. The decision miscarried because the Minister purported to weigh that risk against a mere hypothesis of what might be in the best interests of the applicant's children when the law requires the Minister to confront, as a direct and central question, what the best interests of the applicant's children in fact required him to decide with respect to the proposed deportation of their father. Having answered this question and thereby identified the best interests of the children then, and only then, could the Minister assess whether any other consideration outweighed those best interests understood as a primary consideration.
28 It follows that the applicant is entitled to an order in the nature of certiorari quashing the Minister's decision. Although the applicant also sought an order in the nature of mandamus requiring the Minister to determine whether or not to cancel the applicant's visa according to law, it is a matter for the Minister alone whether to reconsider cancellation of the applicant's visa. By s 501A(6) of the Migration Act the Minister has no duty to exercise the power under s 501A(2). Accordingly, no order in the nature of mandamus can be made. If the Minister decides to consider the exercise of power under s 501A(2) afresh the Minister will be bound to do so according to law irrespective of the making of any order to that effect. The usual order as to costs should be made.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.