Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to review the decision of the Administrative Appeals Tribunal ('the AAT') dated 19 May 2004. The Tribunal affirmed the decision of a delegate of the Minister given on 10 September 2003 refusing to grant a spouse visa to Mr Patrick Sebastian ('Mr Sebastian') under s 501 of the Migration Act 1958 (Cth) ('the Act'). 2 The applicant is the spouse of Mr Sebastian. She contends in her application that the Tribunal failed to warn the applicant that it did not intend to treat the best interests of the child as a primary consideration. This is ground one in the application. Ground two is that the Tribunal exceeded its jurisdiction in failing to treat the best interests of the child as a primary consideration, as mandated by Direction 21, issued pursuant to s 499 of the Act. 3 Each of the grounds in the application is particularised as being that the Tribunal made no finding as to what would be in the best interests of the applicant's child, Samara Sebastian ('Samara') and by not otherwise treating Samara's interests as a primary consideration. The Delegate's Decision 4 The delegate's decision was made after considering an issues paper which set out issues for consideration of a possible visa refusal under s 501(1) of the Act. 5 The delegate stated that all relevant matters had been considered including an assessment of the character test defined by s 501(6) of the Act and the direction under s 499 of the Act. 6 The relevant ground for refusal was s 501(6)(c)(ii) of the Act, which provides that a person does not pass the character test if having regard to the person's past and present general conduct the person is not of good character. 7 The issues paper stated that there was reasonable suspicion that Mr Sebastian did not pass the character test on account of his past and present general conduct. The conduct to which the paper referred was Mr Sebastian's abuse of Australia's migration laws for the purpose of remaining in Australia. 8 Mr Sebastian's migration history was set out in the issues paper. Mr Sebastian arrived in Australia from South Africa on 25 October 1998. He applied for a protection visa on 18 October 1999. He then applied on 11 February 2000 to remain in Australia on 'interdependency' grounds, namely a relationship with Mr Said Msellem which apparently commenced prior to Mr Sebastian's departure from South Africa. 9 On 8 January 2002 Mr Sebastian withdrew the interdependency application and, five days later, on 13 January 2002, he married the applicant. 10 Mr Sebastian departed from Australia on 25 November 2002, approximately six months before the birth of Samara who is the child of Mr Sebastian and the applicant. Samara was born on 15 May 2003. 11 On 23 December 2002 Mr Sebastian applied for a combined class UF subclass 309 spouse (provisional) and class BC Subclass IDO spouse (migrant) visa. The applicant sponsored Mr Sebastian's visa application. 12 The past general conduct of Mr Sebastian which was referred to in the issues paper was his abuse of the migration system. One of the matters to which the paper referred was that Mr Sebastian had applied for refugee status based on unmeritorious and fabricated claims. 13 The present general conduct of Mr Sebastian to which the issues paper referred included that Mr Sebastian had demonstrated little or no emotional consideration for his wife and he failed to understand the gravity of his misconduct. 14 The issues paper referred to the best interests of Samara as a consideration. It noted that the applicant had a son ('Benjamin') then aged 17, from a previous relationship as well as Samara from her relationship with Mr Sebastian. 15 The paper stated that although Mr Sebastian is Samara's father he has had no involvement in her childhood because he departed Australia when the applicant was approximately three months pregnant and had no contact with Samara since her birth. Direction 21 16 Direction No 21(1) was made under s 499(2) of the Migration Act. The preamble commences by stating that the Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act. 17 The relevant paragraphs of the Direction are as follows:- '2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. PRIMARY CONSIDERATIONS 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. Protection of the Australian Community 2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: (a) the seriousness and nature of the conduct; (b) the likelihood that the conduct may be repeated (including any risk of recidivism); and (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).' The decision of the Tribunal 18 The Tribunal made reference to Samara's best interests in [78] of its reasons. I will refer to that in some detail below. 19 Before doing so, it is necessary to observe that the Tribunal proceeded on the basis that Samara would reside in Australia regardless of the outcome of the application. If it was successful she would have both parents present in Australia but, if not, she would live here with her mother. 20 This is apparent from [12] of the reasons in which the Tribunal stated that it was not realistically possible for the applicant to joint Mr Sebastian in South Africa. Also, at [32], the Tribunal recorded that when the applicant was asked what she would do if the delegate's decision was affirmed she said she could not afford to go to South Africa. 21 The Tribunal, at [35] considered that the applicant was genuine in her desire to be reunited with Mr Sebastian. However, the Tribunal said it was not convinced that Mr Sebastian's desires were motivated by those considerations and, indeed, the Tribunal found that the probabilities tended to indicate a different motivation; see at [35]. 22 The Tribunal recorded that the applicant's counsel conceded, correctly, that Mr Sebastian could not pass the character test; see at [72] - [73]. That being so it was necessary, as the Tribunal noted at [73], to consider the terms of Direction No 21. 23 The Tribunal set out at [74] the provisions of clause 2.3 of the Direction which state the three primary considerations to be taken into account. The Tribunal then said at [75] that clause 2.3 was to be read in conjunction with clause 2.5, which it also set out. 24 The Tribunal proceeded to deal, although not in strict order, with the factors stated in clause 2.5 namely the seriousness of the conduct, the risk of recidivism and general deterrence. 25 The Tribunal said at [76] that the deterrence factor was very real and that it 'must be construed against' Mr Sebastian. 26 The Tribunal said at [77] that it would not 'rate the risk of recidivism as unacceptably high although it cannot be discounted'. 27 In the same paragraph the Tribunal referred to Mr Sebastian's conduct in abandoning a spouse with whom he had been in a relationship in South Africa and to his abandonment of twins who had been born of that relationship. The Tribunal also referred at [77] to the fact that Mr Sebastian had left his interdependency application on foot despite the formation of a relationship with the applicant. It found that this behaviour showed that Mr Sebastian was willing to transgress the law whenever it suited him to do so. 28 The Tribunal dealt with the seriousness of the conduct at [80]. It found that the offences were 'undeniably serious.' 29 As I have said, the Tribunal referred to the interests of Samara at [78]. The first three sentences are important and I will set them out in full. 'The interests of Samara are primary. In the ordinary way her interests would best be served by her having both parents with her. However she has never met the Visa Applicant, and moreover, the Visa Applicant, despite what the Applicant and Benjamin said, is neither a good provider nor a good financial manager.' 30 The Tribunal then recorded at [78] other observations and findings about Mr Sebastian. It said that while he was in Australia he did what work he could but his lack of qualifications would have the effect that his ability to provide would be limited. 31 The Tribunal commented adversely upon Mr Sebastian's abdication of responsibility towards his former wife and twins. It found that the evidence suggested that Mr Sebastian was 'an opportunist'. It said that there was doubt as to Mr Sebastian's ability to sustain a relationship; see at [78]. 32 The Tribunal turned at [79] to one of the other primary considerations listed in clause 2.3 of the Direction, namely the expectations of the Australian community. It found that while opinion may be divided, the community would expect that the visa be refused. 33 The Tribunal returned to the interests of Samara at [81]. It said that as she grows older she could visit her father in South Africa if her financial position improves. 34 The Tribunal described the case as 'heartbreaking'; see at [82]. However, it said at [83] that this was not a case in respect of which it would be proper to exercise its discretion in favour of Mr Sebastian. The best interests of the children 35 In Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454, Allsop J said at [118] that the interests of the children are considerations of their human development, their health and happiness and their social and educational development. His Honour said that this was not a checklist, but rather an illustration of the kinds of considerations that were relevant. 36 His Honour said at [119]:- 'The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children . The delegate did not say that he had taken the children´s interests into account as a primary consideration. That failure of expression would not be fatal if he otherwise displayed an appreciation of the kinds of matters to which I have referred. He did not.' 37 In Vaitaiki v Minister for Immigration and Ethnic Affairs (1997) 150 ALR 608 a majority of the Court came to the view that the Tribunal had not only failed to make the interests of the children a primary consideration , it had not given adequate consideration to that factor; see at 618 (per Burchett J) and at 631 (per Branson J). Her Honour said at 631:- 'I conclude, in broad agreement with Burchett J, that although the AAT purported to act on the basis that the best interests of the appellant´s children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children´s best interests.' 38 In Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 a Full Court (Branson, North and Stone JJ) found that the Tribunal failed to identify in its reasons what the best interests of the children required and did not treat the best interests of the children as a primary consideration. 39 Their Honours said at [26]:- '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 . The Tribunal did not refer to either of these cases.' 40 Their Honours then said at [27]:- 'In view of the obligation placed on the Tribunal by s 43(2B) of the Administrative Appeal Tribunal Act 1975 (Cth) ('the AAT Act') to include in its written reasons for decision 'its findings on material questions of fact and a reference to the evidence or other material on which those findings were based' , we do not consider that it was open to the learned primary judge to conclude that the Tribunal impliedly found that the best interests of each of the two children indicated that his or her father should be granted a visa' 41 Their Honours said at [31]:- 'Even if we are wrong in concluding that the Tribunal did not identify what the best interests of the children indicated that it should decide with respect to Mr Wan´s application for a visa, the conclusion is, in our view, inescapable that the Tribunal did not treat the best interests of the children as 'a primary consideration' in its determination.' 42 Their Honours also said at [32]:- ' … However, it 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.' Whether the Tribunal failed to consider the best interests of the child 43 The Minister submitted that the applicant's procedural fairness case failed at the threshold because the Tribunal did regard Samara's interests as a primary consideration and that it made findings identifying what Samara's best interests required. 44 It seems to me to be important to bear in mind that this not a 'legitimate expectations' case of the type dealt with in Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 ('Teoh'). Rather, this is a case in which the initial decision was made by a delegate of the Minister. Both the delegate and the Tribunal were bound to exercise the discretion in accordance with Direction No 21 because of the provisions of s 499(2A); see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at [17] per Whitlam and Gyles JJ; see also Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822 per Whitlam J at [23]. 45 It follows that the present application turns upon whether the Tribunal complied with Direction No 21 which required it to consider as one of the three primary considerations, the best interests of the child. 46 However, it must be noted, as stated in Clause 2.2 of the Direction, that the Tribunal was not required to give paramount consideration to Samara's best interests to the exclusion of the other two primary considerations. Rather, it was directed to have regard to the importance of all three primary considerations and to adopt a balancing process which takes into account all relevant considerations. 47 It is true, as Allsop J said in Perez at [118] that the identification by the decision-maker of the best interests of the child is not a 'requirement for mechanical incantation'. The decision maker must actually carry out the task of identifying the best interests and then assess whether other considerations outweigh the considerations of the best interests of the child. This was the process stated in Wan at [32]. 48 In the present case the Tribunal said that the interest of Samara were primary. I do not think that this was a mechanical incantation because the Tribunal then embarked upon a process of identifying the best interests. The question which arises is whether the Tribunal stopped short of identifying what those best interests were. 49 In my opinion, on a fair reading of [78] of the Tribunal's reasons, it made a finding that Samara's best interests were best served by having both parents with her. I do not think that the words 'in the ordinary way' cut down the effect of this finding. 50 It is true that after stating this finding the Tribunal embarked upon some musings about Mr Sebastian's character. But it did not say that those considerations negated the express finding which the Tribunal made about the presence of both parents. 51 In my opinion a fair reading of the whole of [78] is that while Samara's best interests would be served by having both parents in Australia, the findings which the Tribunal made about Mr Sebastian's character went to the weight which was to be given to that finding in the balancing process which the Tribunal was required to undertake. 52 It seems to me that the Tribunal carried out a balancing exercise of weighing Samara's best interests against the two other primary considerations referred to in paragraph 2.3 of the Direction and the other factors which the Tribunal was required to take into account under paragraph 2.5. These were the expectations of the Australian community, the seriousness of Mr Sebastian's conduct, the risk of recidivism and general deterrence. 53 It is clear that the Tribunal made adverse findings on all of those factors in the paragraphs which I referred to when dealing with the Tribunal's decision; see [25] - [28] and [32] above. 54 It is true that the Tribunal does not expressly state that it balanced those considerations against the finding about Samara's best interests. However, it seems to me to be implicit in the way it approached the decision that it considered that Samara's best interests were outweighed by the other considerations stated in paragraphs 2.3 and 2.5 of the Direction. 55 In my opinion the decision of the Full Court in Wan is to be distinguished from the present case. Here, the Tribunal did identify in its reasons what Samara's best interests were and it assessed the strength of other considerations against the best interests of Samara as a primary consideration. 56 It follows that both of the grounds stated in the application must fail. Breach of s 43(2B) of the Administrative Appeals Tribunal Act 57 In the course of his oral submissions, counsel for the applicant submitted that the Tribunal's written reasons did not include its findings on a material question of fact, namely what was in Samara's best interests. Counsel referred to [27] of Wan which I have set out above. 58 Here, it seems to me that s 43(2B) of the AAT Act 1975 (Cth) was not breached. For the reasons set out above, it is my opinion that the Tribunal did include in its written reasons a finding as to what was in Samara's best interests. It also, impliedly, found that those interests were outweighed by the other considerations referred to in paragraphs 2.3 and 2.5 of the Direction. 59 It is therefore unnecessary to decide whether a breach of s 43(2B) constitutes jurisdictional error.