Powell v Minister for Immigration & Multicultural & Indigenous Affairs

Paragraph 2.16 of the Minister's Direction sets out the factors to which the decisionmaker should have resort when considering the best interests of the child:

In describing the relationship between her and her children Ms POWELL stated in her submission: "The children are both permanently cared for by myself and have never been out of my care. Both are very close to my family also, more so as we all lived with my parents for 9 months of this year until recently when they purchased a home for me to rent. The childrens (sic) paternal grandparents see them once a month approximately." A copy of Ms POWELL's submission is at Annex D.

Ms POWELL has not directly addressed the subject of her relationship with the children's father. At the time of writing her submission Ms POWELL and the father of the children Mr Lovell were separated and there is no indication that the couple have plans of co-habitating. Ms POWELL's sole reference in her statement dated 30 December 2002 to her marital situation is: "I am a single mother with two small children Joshua 21 months and Monique, aged 11 months both are Australian Citizens as is their father who usually sees them on a frequent basis." A copy of Ms POWELL's submission is at Annex D.

On the 10 December 2002, Mr Lovell the father of Ms POWELL's two children was advised in writing that Ms POWELL had made herself liable under section 501 of the Migration Act 1958 to have her visa cancelled. The need to address Australia's international obligations and in particular article 3.1 of the Convention on the Rights of the Child was explained. Mr Lovell was asked to respond to a number of matters concerning his children by 6 January 2003. On 7 January 2003 Mr Lovell was contacted by telephone and asked whether he would respond to the request. He confirmed receipt of the letter and that he would respond in writing within a few days. He noted that the relationship between him and Ms POWELL was strained and that he wanted to talk to her prior to his submission. No response has been received from Mr Lovell. A copy of the letter forwarded to Mr Lovell is at Annex G.

Ms POWELL has two children. One aged 11 months and the other one (1) year and nine (9) months.

Ms POWELL's two children are both Australian citizens.

There is no evidence on file indicating that Ms POWELL plans to be separated from either of her two children.

Ms POWELL states in her submission dated 30 December 2002 that: "My children have not been subjected in anyway to my criminal activities or drug use." A copy of Ms POWELL's submission is at Annex D.

The children have spent all of their lives in Australia.

Should Ms POWELL's visa be cancelled and the children move with her to the United Kingdom they will find that the educational facilities and standard of health support are of a similar standard to that in Australia.

No language barriers would exist for the children in the United Kingdom should they accompany their mother in the event of cancellation of her visa.

No cultural barriers would exist for the children in the United Kingdom should they accompany their mother in the event of cancellation of her visa.

It is open to you to find from the information given that the cancellation of Ms POWELL's visa and her removal from Australia would have a detrimental effect on her children. The breaking of the relationship that the children have established since birth with their father and grandparents would have a negative effect on the children.' 17 Under the heading "Other Considerations" the Issues Document referred to various matters and repeated the fact that the father of the applicant's two children saw them on a frequent basis. Part E of the Issues Document was headed "Decision". It started with the following statement: 'I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and have decided that:' 18 There then followed four options expressed as follows: '(a) I am satisfied that Ms POWELL passes the character test; OR (b) I reasonably suspect that Ms POWELL does not pass the character test and Ms POWELL has not satisfied me that she passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa; OR (c) I reasonably suspect Ms POWELL does not pass the character test and Ms POWELL has not satisfied me that she passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa BUT Ms POWELL is to be WARNED that a fresh assessment will be made with a view to consider cancelling her visa if she is convicted of any further offences; OR (d) I reasonably suspect that Ms POWELL does not pass the character test and Ms POWELL has not satisfied me that she passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' 19 On 5 February 2003, so I infer from what appears on the relevant page, the respondent struck out the first three options, selected the fourth and signed immediately under that option. 20 The respondent submitted that the Issues Document could not evidence the respondent's reasons for his decision because it could equally be reasons either for making a decision to cancel or reasons for making a decision not to cancel, particularly where it dealt with the matters relating to the children. In that regard the respondent relied on the observations of Branson J in W157/00A at para [54]. 21 I think that it needs to be remembered that in that case her Honour was considering whether that particular issues document complied with the requirements of s 501G(1)(e), rather than the broader question to which I have referred above. In my view, the Issues Document does tell the respondent why her visa was cancelled. It is apparent from the document itself that even if the portion of the document dealing with the interests of the applicant's children could be construed as containing no recommendation or, possibly, a recommendation that the discretion be exercised so as not to cancel the visa, the respondent's decision to exercise his discretion to cancel the visa was based on an acceptance that the reasons for such cancellation outweighed any factors which militated against taking that course. 22 The only factor put forward by the respondent as not pointing towards visa cancellation was the matter of the interests of the applicant's children. 23 Once it is known that the decision was to cancel the visa, the reasons thus emerge from the Issues Document itself. That is what the applicant would reasonably have understood when given notice of the decision accompanied by the Issues Document. That is also what the respondent's Department intended her to understand when it forwarded that document to her and described it as setting out the reasons for the decision. It is not necessary for me to decide whether the Issues Document complied with the technical requirements of s 501G(1). 24 I respectfully adopt, as being applicable to the facts of the present matter, the following observations of Stone J in Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 at [26]: 'In this case, the Department's brief to the Minister contained the applicant's personal and visa details, information relevant to the character test (see [7] above), an assessment of the applicant's character and an outline of matters relevant to the Minister's discretion. The Minister's decision is consistent with the analysis and recommendations made in the Departmental brief. Given that the Minister is obliged by s 501G(1)(e) to provide reasons for his decision, the completion of Part E by the Minister without comment leads to the conclusion that the Minister adopted the brief as a statement of his reasons…'. 25 The question can be approached another way. As counsel for the respondent submitted in argument, if the respondent were ordered to provide a statement of reasons for his decision in this matter, that document would at best be a reconstruction. That was because it would be some 14 months after the event. 26 I infer from the expiry of that length of time and from taking judicial notice of the other demands on the respondent's memory resulting from both his former and present high office that, on the balance of probabilities, he would not have any real recollection of the applicant's case. I think that he would be totally dependent upon the Issues Document. But I think that he would still be able to work out, quite accurately and safely, from the Issues Document alone what were his reasons for decision. 27 The next question is whether the reasons show that the respondent, in making his decision to cancel the visa, regarded or looked to the best interests of the applicant's children as a primary consideration. It is useful, as Mr J D Allanson, counsel for the respondent helpfully reminded me, to remember that the issue is not whether the respondent failed to take into account a factor which he was obliged to take into account. There is no such substantive statutory obligation, as was explained in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The issue is one of natural justice. 28 In the present matter there is no suggestion that the respondent gave notice of the type contemplated in Teoh. But to succeed in her application, the applicant must show that on a balance of probabilities the respondent, in making the decision, did not treat the best interests of her children as a primary consideration. 29 In my view, she has succeeded in doing so, for two independent reasons. First, the author of the Issues Document has simply carried out the converse task to the author of the comparable document in Long. In each case the author's reasoning is to be attributable to the respondent, for the reasons given above. That is, whereas in Long the author suggested a cancellation of the visa would not have a detrimental effect on Mr Long's children, in this case (in para 44 set out above) the author suggests that it is open for the respondent to find that cancellation of the visa would have a detrimental effect on the applicant's children. But that, in my opinion, does not comply with the obligation explained in Teoh, a case in which the delegate assessed the plight of Mr & Mrs Teoh's children as being very gloomy indeed. 30 The task, as I see it, is not a difficult one for the decision-maker. All he or she has to do is to assess and identify what would be the best interests of the children and then, if proper notice has been given, the decision-maker may decide that those interests are not to be treated as a primary consideration but are to be displaced by other considerations. 31 In written submissions, the respondent conceded that the Issues Document did not "explicitly" identify the decision that would be conducive to the best interests of the applicant's children. In my view, that observation is clearly correct. Furthermore, I do not think that the reasons identify implicitly the decision which would be conducive to the best interests of the applicant's children. If, as I believe, it is not possible to discern from the Issues Document what the respondent identified as being the best interests of the applicant's children, I think it is appropriate to conclude, as I do, that on the balance of probabilities, the respondent did not treat the best interests of those children as a primary consideration. 32 The second reason for my conclusion is that I accept the applicant's submission that the respondent's reasons are based on the assumption that if the applicant's visa were cancelled, her children would accompany her to the United Kingdom. In my view, there was sufficient material before the respondent to oblige him to consider the possibility that the children might remain in Australia. First there was the evidence that their father, Mr Lovell, usually saw his children on a frequent basis. That is, he had "contact" with his children within the meaning of the Family Court Act 1997 (WA) ("the State Act"). That situation would change radically if the children were removed from Australia. In those circumstances, so it seems to me, there was a reasonable likelihood that if steps were taken to remove his children from Australia Mr Lovell would issue proceedings under the State Act to obtain a contact order. The mere issue of such proceedings has the result that, by force of s 108 of the State Act, the applicant could not take her children out of Australia. She would have to be removed from Australia without her children. There was absolutely no consideration in the Issues Document of what might be the best interests of those children in those circumstances. 33 The respondent argued that he was under no obligation to consider such a situation because there was no suggestion that the applicant would not take the children with her should she leave. Furthermore, Mr Lovell had been invited to comment, but had not done so. 34 That may be so, but it is one thing for Mr Lovell not to respond to the Departmental enquiry and quite another thing to assume that he would not respond by securing his legal rights if he were to be denied (effectively) any further contact with his children by their removal from Australia with the applicant. The assumption underlying the respondent's decision is that Mr Lovell would waive all of his rights and allow his children to depart. The facts before the respondent, in my view, required him, as part of the obligation to consider the best interests of the children as a primary consideration, to assess Mr Lovell's likely response and the effect that would have upon the children. The effect of an application by him for a contact order would be that, by operation of law, the children would remain in Australia until the Family Court of Western Australia decided otherwise, but, consequent upon the respondent's decision, the applicant would be forcibly removed from the country.

Conclusion 35 For the foregoing reasons, I consider that the applicant has established that the decision to cancel her visa was made in breach of the respondent's obligations of procedural fairness to such an extent that it was made in excess of jurisdiction and hence was not a decision which fell within the privative clause regime. In short, the applicant has established jurisdictional error which entitles her to the relief sought. There will be orders quashing the respondent's decision and prohibiting him from further proceeding to act upon it either to detain her or to remove her from Australia. 36 In those circumstances it is not necessary to consider the applicant's alternative claim. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate: Dated: 8 June 2004

Counsel for the Applicant: Mr H N H Christie

Solicitor for the Applicant: Messrs Christie & Strbac

Counsel for the Respondent: Mr J D Allanson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 19 March 2004

Date of Judgment: 8 June 2004