Consideration
29 As to whether the applicant would face hardship, prejudice or other difficulty if he were returned to Nigeria, the ground expressly pleaded, in my view it cannot succeed in light of the Tribunal's findings at [49] which I have referred to at [20] above.
30 I next consider the ground of more substance that, by relying upon the ITOA rather than the conclusions of the Refugee Review Tribunal, the present Tribunal failed to give any real consideration to non-refoulement obligations owed to the applicant.
31 I do not accept this submission. As was submitted on behalf of the Minister, the Refugee Review Tribunal decision was made a considerable time earlier, some 10 years. Also, as found by the present Tribunal, the ITOA found that the decision of the Refugee Review Tribunal was made in part on the basis of false and misleading information. In the circumstances, I see no error on the part of the present Tribunal in acting on the most recent information which was before it. I also do not accept that the decision of the Refugee Review Tribunal had any particular status in the context of s 501CA such that the present Tribunal "could not set a decision of a statutory Tribunal at nought", or, that what the ITOA did was to that effect.
32 The statutory force of the Refugee Review Tribunal's decision had ended with the original grant of the visa, which was revoked under 501(3A). I note that the ITOA contained a detailed examination of the Refugee Review Tribunal's decision. Later material inconsistent with the Refugee Review Tribunal's decision emerged.
33 As to the submission on behalf of the applicant that the present Tribunal did not state the basis on which it preferred the ITOA, this turns on the "status" submission as to the Refugee Review Tribunal's decision. As I have already found, the Refugee Review Tribunal's decision had no particular status in the present case. The present Tribunal noted at [43] that the ITOA was made later in time, and by referring to the later material gave a basis for preferring the ITOA to the findings of the Refugee Review Tribunal.
34 In relation to the submission that the present Tribunal made no findings as to non-refoulement obligations existing, or not existing, this turns on what the present Tribunal said at [43]-[46], [49] and [50], read in light of the ITOA. Applying the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 and Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 and dealing with the matter as a matter of substance, the present Tribunal accepted the ITOA and made a finding.
35 I reject the submission that the Tribunal erred in this respect.
36 As to the claimed failure to consider the best interests of the applicant's children, it is to be recalled that the Tribunal found, at [39], that "clearly the best interests of the children would be served by the Applicant's presence in Australia."
37 In earlier paragraphs, the Tribunal identified and gave consideration to the material before it in relation to each of the children.
38 In Nweke, the Court held, at [18], that consideration of the Minister's decision and statement of reasons as a whole supported 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. The Court drew this conclusion from its analysis of the reasons given by the Minister, as follows. First, the Court said, in the decision itself there was no mention of the interests of the applicant's children although other relevant findings and considerations were mentioned. Second, in the summary of the statement of reasons the Minister referred to the fact that he gave "primary consideration to the protection of the Australian community...". There was no mention of the interests of the applicant's children in those paragraphs other than, Jagot J said, perhaps obliquely under the general rubric of "any relevant international obligations". Third, her Honour said, when dealing with the "best interests of the child" the Minister said 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 remained at the level of mere hypothesis about their best interests. The Minister's reasons as a whole indicated that the Minister either found or assumed (it was 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.
39 In so concluding, the Court applied Vaitaiki and Wan.
40 In Vaitaiki, Burchett J, with whom Branson J agreed, found, at 618, that the Deputy President had not asked what the best interests of the children required him to decide with respect to the proposed deportation of the appellant, but what each set of children should do, given that their father would be deported. Branson J said, at 631, it was noteworthy that nowhere did the reasons for decision of the Tribunal seek to identify what would, in the circumstances before the Tribunal, be the result that would overall be conducive to the best interests of the children. At best they gave consideration to the children's best interests in a limited way within a restricted framework.
41 In Wan, the Full Court held, at [7], that the appellant was denied procedural fairness before the Administrative Appeals Tribunal and was entitled to a fresh hearing. At [26], the Full Court said that of particular significance was 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.
42 In the present case, the Tribunal did consider, at [29]-[39] and at [50] the best interests of the minor children in Australia affected by the decision. The Tribunal reached a concluded view, at [39], that "clearly the best interests of the children will be served by the Applicant's presence in Australia." Thus the type of error found by the Court in Vaitaiki, Wan and Nweke, on close consideration of the Tribunal's reasons in each case, is not made out.
43 I do not accept the submission on behalf of the applicant that what the Tribunal found, at [39], meant that the Tribunal failed to take the delegate's "equivocation into account nor realised that it needed to consider the differing needs of each of the children". Neither do I accept that the delegate failed to consider the differing needs of each of the children or, that if the delegate failed to do so, the Tribunal's concurrence with that finding was also flawed. The finding of the delegate, at [49], was that it was in the best interests of the six minor children who resided in Australia for the mandatory visa cancellation to be revoked. The delegate then gave somewhat less weight to that factor in respect of the three oldest children because it appeared that they had adequate parental care and supervision available to them from other sources. In my opinion, contrary to the submission on behalf of the applicant, this finding was not "equivocal".
44 I do not accept the applicant's submissions that the delegate's finding, at [49], stopped short of a finding in relation to the applicant's three older children. In my opinion, the finding by the Tribunal at [39] as to the best interests of the children remains in relation to the applicant's six children under consideration. I note the submission of the applicant that if the delegate had stopped short in the first sentence of [49], there would be no cause for complaint. As I have said, in my view, the finding by the Tribunal at [39] referred to all of the children.
45 I therefore reject the applicant's submission that the Tribunal erred by failing to consider the best interests of the applicant's children.
46 As to the claimed denial of procedural fairness, in his application to the Tribunal dated 28 September 2017 the applicant indicated that he did not need an interpreter. At page 3 of the transcript before the Tribunal the applicant said he needed an interpreter and he did not want the interpreter who was there. In the Tribunal, the applicant agreed that he spoke adequate English but sometimes he had to ask the speaker to slow down. The applicant then accepted the proposition put by the Deputy President that "we will try and see how far we can get with you without an interpreter."
47 The transcript does not show that the applicant had language difficulties. The applicant accepted that he could read English. I do not accept the submission on the part of the applicant that the pages of the transcript to which I was taken show that the applicant's ability to understand the questions he was asked and respond to them was adversely affected by the absence of an interpreter.
48 The pages of the transcript on which Mr Turner for the applicant particularly relied were 24, 25, 30, 31, 33 and 34. In the context of the entire transcript, so far as it involved the applicant being spoken to and responding, these references did not show that the applicant did not understand the proceedings. Where questions were not understood, I find that those questions were clarified.
49 As I have indicated, the applicant did not say during the course of the Tribunal hearing that he did not understand the proceedings or that he was handicapped by the fact that English was not his first language. In so saying I take into account that the applicant was self-represented.
50 There is no other evidence from the applicant to the effect that he could not adequately understand the proceedings in the Tribunal or that he was prejudiced by the absence of an interpreter.
51 In these circumstances I find that no procedural unfairness in the Tribunal's proceedings has been established. I therefore reject ground 2 of the application.