Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant is the wife of Patrick Sebastian who unsuccessfully applied for a combined Class UF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 Spouse (Migrant) Visa under the Migration Act 1958 (Cth) ('the Act'). The appellant was his sponsor. The delegate of the Minister refused the application; that decision was affirmed by the Administrative Appeals Tribunal; and an application to this Court under s 39B of the Judiciary Act 1903 (Cth) was dismissed by Jacobson J. The issue on the appeal is whether the Tribunal gave proper consideration to the best interests of the child of the appellant and visa applicant, as it was required to do. 2 It was conceded before the Tribunal that the visa applicant did not pass the character test as defined by s 501(6) of the Act. Section 501(6)(c)(ii) of the Act 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. The conduct, referred to in the issues paper before the delegate, was the visa applicant's abuse of Australia's migration laws. 3 Pursuant to s 501(1) of the Act the delegate has a discretion whether to refuse to grant a visa where the applicant does not satisfy the delegate that they pass the character test. Section 499(1) provides that the Minister may give written directions to persons having functions or powers under the Act if the directions concern the performance of those functions or the exercise of those powers. 4 Direction No. 21 was made on 23 August 2001. It provides in relevant part: '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).' 5 In relation to the primary consideration of the best interests of the child, the Direction further provides: '2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17. 2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation. 2.15 In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to: (a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or (b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 2.16 When considering the best interest of the child, decision-makers should have regard to the following: (a) the nature of the relationship between the child and the non-citizen; (b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct; (c) the age of the child; (d) whether the child is an Australian citizen or permanent resident; (e) the likely effect that any separation from the non-citizen would have on the child; (f) the impact of the non-citizen's prior conduct on the child; (g) the time (if any) that the child has spent in Australia; (h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia; (i) any language barriers for the child in the probable country of future resident, but taking into account the relative ease with which younger children acquire new languages; and (j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.' 6 The visa applicant married the appellant on 13 January 2002, shortly after he had withdrawn an application to remain in Australia based upon a relationship with another person. He departed Australia on 25 November 2002. The child of the marriage, Samara, was born on 15 May 2003. 7 The interests of Samara were discussed by the Tribunal. The appellant's point on the appeal is that it did not amount to a meaningful consideration of the child's best interests. The Tribunal said: '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. I accept that while in Australia he did work when he could. I accept also that for him to work in South Africa would be difficult. His lack of any kind of training or qualifications will always have the effect that his ability to provide will be very limited indeed. The manner in which he abdicated responsibility towards his successor in Joyce's affections and thus responsibility for his twins speak volumes. And the fact that he was deprived of access in consequence does not appear to have weighed heavily with him. He included the twins in his interdependency application but then withdrew their names from that application, but not the application itself which should have occurred far earlier than it did. The evidence before me would suggest that the Visa Applicant is an opportunist. Said, Tina and Abdul appear to have succumbed to his charms. The same applies of course to Joyce and the Applicant and the Applicant's friends and relatives. There must be doubt as to the Visa Applicant's ability to sustain a relationship. I make these comments with some regret; I am only too aware of the fact that he grew up as a black man in a white dominated South Africa and that he appears to have been deprived in consequence of educational opportunities.' 8 The Tribunal went on to consider the other primary considerations, involving the protection of and the expectations of the Australian community. As to the former it found that the offences were numerous and serious. The community would, in its view, expect a visa to be refused in this case. It considered the hardship which would be caused to the appellant and her son, who had known the visa applicant for a short time. It continued: '… I have previously dealt with the position of Samara. As she grows older, she will be entitled to visit her father in South Africa. For that matter, the Applicant will, if her financial position should improve, have the right to do so.' 9 The Tribunal concluded that in this case it would not be proper to exercise the discretion given by the Court in favour of the visa applicant. 10 In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (at 291, 298) it was held that ratification by Australia of the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation, on the part of a visa applicant, that the administrative decision-maker would act in accordance with the Convention. The Convention required that the best interests of the child shall be a primary consideration. It was not however intended to be the only consideration: '… it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight …' (at 289) As Deane J pointed out (at 302) there may be other primary considerations of equal weight. In this Court, Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 are cases where the best interests of the child or children were not dealt with as a primary consideration by the decision-maker. In this case the Direction itself requires that the child's best interests be dealt with in this way. 11 In Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454 ('Perez'), a case upon which the appellant places some reliance, Allsop J held that it was necessary, in determining the consideration of the childrens' best interests, for the delegate to identify those interests and what they called for (at [118]). It was necessary that the reasons disclose an appreciation of these matters. His Honour gave examples of the kinds of considerations which would be relevant to a child's interest; those of human development including their health, happiness and social and educational development. 12 In this case Jacobson J held that the interests of Samara were considered as a primary consideration. His Honour said: '48 In the present case the Tribunal said that the interests 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.' 13 The facts in Perez are quite different from those pertaining to the present case. The delegate there had not said that he had taken the children's interests into account as a primary consideration and there was nothing to indicate that he had turned his mind to matters relevant to such a consideration to come to a view. In the present case the Tribunal accepted the proposition that the best interests of Samara would be to remain with her parents. That may be seen to be a conclusion reached without analysis, but in our view the Tribunal was entitled to approach the matter in this way. 14 The starting point adopted by the Tribunal is one which reflects an assumption generally held by members of the Australian community, namely that in most cases a child's interests are best served by remaining with their parents. That view is a reflection of the various matters to which Allsop J referred to in Perez, relating to the various aspects of a child's development. It seems to us that there would be no rational basis for denying the Tribunal the adoption of that assumption, at least initially. As the community would recognise, there may be factors which are to be weighed against that assumption. This is such a case. That does not however mean that the interests of the child has not been regarded as a primary consideration. 15 We do not take his Honour in Perez to lay down a rule that in every case a decision-maker must go through a list of factors which might inform a decision as to what is in the best interests of the child. In many cases that will be appropriate, but it cannot in our view preclude an approach which assumes that all those factors point to one conclusion, namely that it will be in the best interests of a child to remain with their parents. 16 We do not however, with respect to his Honour the primary Judge, consider that the Tribunal in this case left the matter there. 17 His Honour considered that, after stating its conclusion as to the best interests of the child, the Tribunal embarked upon some 'musings' about Mr Sebastian's character. It would seem to us however that the Tribunal was considering matters, including some arising from cl 2.16 of the Direction, which operated to negative, to an extent, the conclusion that the best interests of the child would be served by being with her father. The Tribunal obviously considered that the visa applicant would not be a good provider or financial manager. His ability to provide would be limited. The Tribunal doubted his ability to sustain a relationship and noted his disloyalty to others and his use of others as opportunistic. Moreover the child had never met or had a relationship with her father. 18 The matters adverted to by the Tribunal also show that it had in mind the requirements of the Direction which might apply to the circumstances of this case. The relationship, or lack of a relationship, between the child and her father are referred to in cl 2.12(a) and (b) and are relevant also to (e). Factors such as the age and status of the child had earlier been referred to by the Tribunal. The other factors were not relevant to this case, given that it was not suggested that the child would be taken to South Africa. 19 The inescapable conclusion is that the Tribunal considered that there were some factors present which detracted from the generally held view concerning the best interests of the child, namely that they should be with their parents. It gave consideration to the question posed for it. It was not necessary for it to list other specific advantages to the child, given the starting point it had adopted. 20 Moreover it is plain that the Tribunal was aware that the consideration was one of three primary considerations. It appears from its determination that it considered those relevant to the Australian community to have greater weight. 21 The appeal should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours.