Application of Teoh
61 Counsel for Ms Promsopa submitted that the Tribunal was obliged to give primary consideration to the best interests of Ms Promsopa's child in deciding whether to affirm the decision to cancel her visa, citing Teoh (1995) 183 CLR 273. This obligation arose due to the legitimate expectation that the Tribunal would not act inconsistently with art 3(1) of the Convention on the Rights of the Child without prior notice: Teoh 183 CLR 271-292 (per Mason CJ and Deane J).
62 The Minister submitted that Teoh was not applicable to decisions made under s 109 of the Act. In oral argument counsel for the Minister argued that the procedural fairness requirements propounded in Teoh only apply to decisions where the Minister or his delegate has an unfettered discretion and s 109 did not contain an unfettered discretion because the Minister or his delegate had to be satisfied of the criteria in subss (a), (b) and (c). I reject that submission. The power to cancel a visa under s 109 is discretionary; the section makes clear that after the Minister decides that there was non-compliance under s 108, considers any response by the visa holder and has regard to any prescribed circumstances, the Minister may cancel the visa.
63 The Minister also submitted that a failure to consider properly the best interests of the child cannot amount to jurisdictional error because it was not a "mandatory consideration". The Minister refers to two decisions of the Full Court of this Court in support of this argument: Khadgi (2010) 190 FCR 248 and COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148. The Full Court in Khadgi stated that the factors set out in reg 2.41 were mandatory considerations that must be taken into account by the Minister. The Court noted at [68] that the list of factors is not an exhaustive statement of the factors that the Minister might properly consider to be relevant in any given case. That case says nothing on the application of Teoh to s 109. The Minister relies on [28] of COT15 where the Court held that the "present circumstances of the applicant" within the meaning of reg 2.41(e) "is not apt to refer to obligations which Australia owes to other countries under treaty". Again, this passage in COT15 does not shed light on the application to s 109 of the procedural fairness requirements the subject of Teoh.
64 The nomenclature of "legitimate expectation" has, since, Teoh, fallen out of favour in Australia: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1. A more "modern" way of expressing the principle derived from Teoh may be found in the judgment of Gaudron J at 183 CLR 305:
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.
65 Ms Promsopa relied upon the Full Court decisions of Vaitaiki and Wan, which both applied Teoh. In Wan, the applicant had been refused a permanent residence (general-spouse) visa on character grounds. He was married to an Australian citizen and was father to two children who were also Australian citizens. Applying Teoh, the Full Court set aside the Tribunal's decision because the Tribunal had not identified what were the best interests of the child, nor had it treated the factor as a primary consideration. The Full Court in Wan also applied the earlier Full Court decision in Vaitaiki. In that case the appellant, who had three older children and three younger children, had been convicted of a number of offences and an order for his deportation had been made. The Full Court set aside the decision of the Tribunal because it failed to apply Teoh correctly. It should be noted that the Tribunal only had the benefit of the reasons of the Full Court of the Federal Court in Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 182; 49 FCR 409, but the High Court in Teoh expressed similar views to that of the majority in the Full Court when it upheld that Court's decision. At the second hearing before the Tribunal, the Tribunal decided that procedural fairness had been afforded to the appellant by the act of re-hearing. The Full Court in Vaitaiki set aside that second Tribunal decision. Burchett J expressed the test from Teoh in the following manner at 612:
In Teoh, the majority of the High Court held, in respect of circumstances not relevantly distinguishable from the present, that if a decision were to be given by an administrator which did not accord with the principle that the best interests of any children concerned were to be a primary consideration, the administrator would first be required to give adequate notice and an opportunity for the presentation of a case against the taking of such a course. This, in the view of Mason CJ and Deane J (at CLR 291-2) was because Australia's ratification of the United Nations Convention on the Rights of the Child created a legitimate expectation, so as to attract the principle of natural justice, that administrators would act in conformity with the Convention …
66 Justice Burchett held that the Tribunal had not given the best interests of the appellant's children primary consideration, stating at 616:
However, the tribunal did proceed to give consideration to the facts, and it is necessary to examine its further reasons to see whether, despite its protestations about the validity of its earlier reasons, and the statements to which I have referred, it did in reality take account of the children's best interests as it was required to do by law. In my opinion, it was certainly required to take them into account, at least as very significant matters, for more than one reason. In the first place, as no notice had been given within the meaning of the majority judgments in Teoh, it was required to take the best interests of the children into account as a primary consideration. That requirement and the legitimate expectation from which it sprang were reinforced, in the circumstances of the second hearing before the tribunal, by the fact that the earlier decision had been set aside, and the matter remitted for determination according to law, on the very basis that the law required, and the parties were agreed, that in the absence of notice to the contrary the best interests of the children must be treated as a primary consideration. There was no foundation for the tribunal's statement, which misunderstands Teoh that procedural fairness had been afforded to the applicant merely by the holding of a hearing. In addition, and for reasons explained by Gaudron J, at the least the substantive law required the interests of young children who were Australian citizens to be taken into account as very significant matters. The view should not be entertained that, when Parliament provided for the assertion of community interests under the former s 55, it excluded from those interests the well-being of the community's weakest and most vulnerable members, who are also its future.
67 Justice Branson agreed with Burchett J. Her Honour held at 630 that the proper focus of the Tribunal must be to identify the result in all the circumstances that would overall be conducive to the best interests of the child.
68 In the recent decision of DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, Steward J held that the Tribunal in reviewing decisions of the Minister to cancel the appellants' visas under s 109 was bound to take into account the best interests of the appellants' two children. In coming to this conclusion, his Honour stated that he was bound by the decisions of Wan and Vaitaiki but noted at [34]-[35] that the Full Court in Vaitaiki may have expressed the principle more broadly than Mason CJ and Deane J in Teoh:
The decisions of Wan and Vaitaiki bind me, although there may be a question as to whether Vaitaiki's precedential force is diminished in the event their Honour's reasoning relied upon an expression of principle that was agreed between the parties: Coleman v. Power (2004) 220 C.L.R. 1 at 44-45 [79] per McHugh J. In my very respectful view, on one possible view Vaitaiki misstates the principle to be derived from the judgment of Mason C.J. and Deane J. in Teoh. Their Honours in Teoh specifically did not state that a decision maker is bound to take into account the best interests of any children as a primary consideration. That was because Art. 3(1) did not (and does not) form part of the domestic law of Australia. This is made clear in the passage I have set out above from page 291 of the reasons. Rather, a decision maker is obliged to give notice if she or he intends to act inconsistently with the Convention. The giving of notice affords the applicant with an opportunity to answer it. In this way, the error in Teoh may be characterised as a breach of procedural fairness. Vaitaiki perhaps expresses the principle differently. Burchett J. decided that a decision maker was bound to take into account the best interests of the children, unless she or he had given notice that she or he would not do so. Branson J., perhaps on one view, went even further. Her Honour decided that a decision maker more generally was bound to consider the best interests of the children. Neither expression of the principle ostensibly requires the presence of a finding that a decision maker had first proposed to act inconsistently with the Convention; it was sufficient that she or he in fact had so acted. If that is so, it may be the case that this type of error should not really be characterised as a breach of procedural fairness; rather it appears to have transformed into an error of law arising from a failure to take into account a relevant consideration.
A possible consequence of the way the test is expressed in Vaitaiki is that a decision maker who mistakenly fails in her or his reasons to consider the best interests of a child as a primary consideration, or who otherwise by her or his reasons is shown to have misunderstood that obligation, will still be found to have breached the rules of procedural fairness even though, in such a case, there is nothing which such a decision maker could relevantly give notice about. For example, a decision maker might earnestly seek to apply Art. 3(1) of the Convention, but fail to give the best interests of a child the correct degree of primacy. Based on Vaitaiki, such a decision maker may possibly have failed to provide procedural fairness, and will thus have erred at law.
69 In DXQ16, the Minister submitted that all of the decisions of this Court and of the Full Court relied upon by the appellants occurred in different statutory contexts where there was no equivalent to s 422B and s 425 of the Act. Section 425(1) states that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. Section 422B states that the Division in which s 422B is set out is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. In response, the appellants submitted that the Teoh ground fell within the Tribunal's obligation to afford procedural fairness in s 425 and that it followed that the argument did not offend the reach of s 422B. Alternatively, s 422B was expressly limited in its field of operation to the matters dealt with by Div 4 of Pt 7 of the Act. The Teoh ground was not one of those matters. The appellants relied on a statement by French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106; 204 ALR 624 at [58]-[59], a case which concerned a Tribunal which had not disclosed its concerns about the genuineness of certain documents to the applicant:
Section 425 requires the tribunal to invite an applicant to give evidence and to present arguments relating to the issues arising in relation to the decision under review. On one view, the genuineness of the appellant's documentary evidence was an issue raised by the tribunal itself and of which the appellant was given no prior notice nor an opportunity to comment before the tribunal made its decision. If that characterisation be correct, then the tribunal's failure to invite the appellant to make submissions on whether the letters relied upon were genuine, or forgeries, or concoctions, was a failure to comply with s 425. A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review. A failure to comply with s 425 will therefore amount to jurisdictional error and be amenable to the issue of constitutional or prerogative writs on the principles set out in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24.
If it be the case that s 425 has no application to the issue raised in this appeal - that is the question whether the tribunal was obliged to invite comment on an adverse conclusion not implicitly or explicitly an issue in the hearing, then s 425 does not deal with that matter and the requirements of procedural fairness are not excluded in respect of it by s 422B. This may appear to apply a narrow construction to s 422B.
70 In finding that Teoh was applicable to decisions made under s 109 and setting aside the Tribunal's decision, Steward J said the following at [53]:
In relation to the first ground, I have already mentioned that I consider myself bound to follow the decisions of this Court concerning what Teoh decided, including Vaitaiki. I also, very respectfully, consider that I should follow the reasoning of French J. in WAJR. The better view is that the Teoh ground, being part of the obligation to provide procedural fairness, is either subsumed within s. 425 or is not a matter dealt with by Div. 4 of Pt. 7 of the Act (although, I again mention that it may, on one view, possibly be odd to characterise the type of error identified in Vaitaiki as one going to procedural fairness). Finally, I do not consider that the fact that the statutory context before me differs from the statutory contexts considered in the decisions relied upon by the appellants relevantly affects how the Teoh ground should have been considered by the Tribunal. That is because there was no dispute before me that the decisions of the Tribunal were, to use the terminology of the Convention, actions concerning children.
71 The equivalent provisions to s 422B and s 425 which are applicable to the present appeal are s 357A and s 360 in Div 5 of Pt 5. I respectfully agree with his Honour's conclusions and also consider myself bound to follow the cases referred to by his Honour. Given the one-dimensional approach taken by the Tribunal to the assessment of the best interests of the child, explained above, the Tribunal has failed to consider properly the best interests of the child and has thus failed to afford Ms Promsopa the procedural fairness required by Teoh.