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[1998] FCA 5
Federal Court of Australia
1997-10-10
Black CJ, Toohey J, Merkel JJ, Mason J, Sackville JJ
Original judgment source is linked above.
REASONS FOR JUDGMENT BURCHETT J On 11 January 1994, a deportation order was made under the former s 55 of the Migration Act 1958 against the appellant as a non-citizen who had been convicted, on 29 May 1992, of offences (sexual intercourse without consent and the making of a threat to inflict actual bodily harm with intent to have sexual intercourse) for which he had been sentenced to a fixed term of two years imprisonment on the first charge and a concurrent minimum term of three years and three months imprisonment with an additional twelve months on the second charge. The offences were committed on 3 December 1988, when the appellant, a citizen of Tonga then thirty-three years of age, had been present in Australia as a permanent resident for less than ten years. An application was made by Mr Vaitaiki in the Administrative Appeals Tribunal for review of the deportation order. The matter came before a deputy president, who noted in a decision given on 30 September 1994 that the appellant had accumulated "a considerable number of convictions". The other offences were less serious than the two which I have mentioned, but they were not unimportant. Many related to driving when having more than the prescribed content of alcohol in his blood and driving without a licence, it having been suspended for prior offences. He had also been convicted in 1986 and 1987 in relation to serious assaults on his then wife. In 1980, he was sentenced to six months weekend detention and in 1986 to further sentences of nine months and fourteen months of periodic detention. It appears that the appellant's offences were all related to his consumption of alcohol. Although there was evidence placed before the Tribunal, both expert and lay, which does not seem to have been controverted, that by 1991 the appellant had obtained help from Alcoholics Anonymous and the Salvation Army and had given up alcohol, his was plainly a record likely in the normal course, unless some special consideration applied, to result in the making of just such an order as had been made. An obstacle in the way of his receiving full credit for his abandonment of alcohol was the fact that, for much of the time since his reform, he had been in prison, and so removed from the normal pressures and temptations of ordinary life (though not, of course, from all pressure or temptation). In his favour, he did appear to have made some contribution in prison to assisting others. He had undergone a revival of religious faith, and the Tribunal noted that, at least since 1991, the appellant "has not had any alcohol". However, the decision could not simply be made on the basis of the appellant's record, without regard to the effect his deportation would have on others. He had married Pauline Langi, who is an Australian citizen, on 25 August 1981, and three children were born of that marriage, in 1982, 1983 and 1985. There were a number of separations and a final parting in 1986, divorce following in 1988. In 1985, the deputy president wrote, the appellant "began seeing Janette Katoa, a woman who had been born in Tonga but was then (and is now) an Australian citizen". They started living together, and the evidence is that they planned to marry. They have had three children, born in 1987, 1989 and 1992. The deputy president found that both sets of children had maintained contact with the appellant during his period in prison. Their mothers had taken them to visit him, and the older children had conversed with him regularly on the telephone. The evidence which was accepted indicated that he had a good relationship with all of them. An important finding about the three younger children was the following: "If the deportation order is carried out, Ms Katoa said that she would return to Tonga with the 3 children because she believes it is important for them to be near the applicant. She said that it is difficult to obtain a job in Tonga and that educational facilities are probably not as good as they are in Australia but in her view those factors are outweighed by the need of the children to be near their father. If she did return to Tonga, however, she would miss her own family who live in and around Sydney. She and the applicant propose to be married when he is released from prison." Having made this finding, the deputy president went on to discuss evidence "from various chaplains attesting to their faith in the conversion of the applicant from his old ways", and evidence of a consultant psychologist, a Mr Taylor, who considered "the applicant has made very significant steps towards his own rehabilitation with regard to his alcohol abuse and that consequently his potential for recidivism is very low". The deputy president, however, was concerned that there was "a real risk of a lapse" because of the appellant's vulnerability to alcohol. He said: "The risk of a lapse may be small, but the consequences are such that the existence of such a risk is not, in my view, acceptable to the community ... ." He acknowledged the appellant's "strong family ties in Australia", and that it "is relevant to consider any hardship [his children, former wife and de facto wife] may suffer". He then added: "Ms Lange [sic] has stated that she would not allow the children of the marriage to accompany Mr Vaitaiki to Tonga. Although she herself personally would not suffer hardship if the order were carried out, the children would be deprived of the society and guidance of their father. The 3 youngest children and Ms Katoa would return to Tonga [in fact, of course, the three children would not be returning to Tonga, but would be taken there for the first time] if the deportation order were carried out. The 3 younger children would therefore not be deprived of the society and guidance of their father, nor would Ms Katoa be deprived of his company. The only hardship in that event would be the disparity in economic opportunities for all concerned between those available in Tonga and those available in this country." The deputy president concluded in two numbered paragraphs, as follows: "45. Balancing these factors one against the other, I have come to the conclusion that the very serious nature of his crimes, the consequent unacceptability of even a small risk of re-offending and the short length of lawful permanent residence in this country up to the date of commission of his crimes, outweigh the hardship that I have discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community. 46. The purpose of s 55 deportations is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by the removal of the applicant outweighs the hardship to the person concerned and his family. In the present case, I have concluded that the objects of the deportation policy would be served by the order being carried out and that there are no countervailing reasons, on balance, why it should not be carried out. The decision under review is therefore affirmed." An appeal against this decision was brought to the Court. By consent, the appeal was allowed on 10 May 1995, when Sackville J made an order that the Tribunal's decision be set aside and that the matter be remitted to the Tribunal for reconsideration according to law. That consent order, although of course no reasons were given, was admittedly based on the view that the decision of the Tribunal involved an error of law by virtue of its failure to conform to the requirements laid down by the High Court in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273. In fairness, it should be pointed out that the judgments of the members of the High Court were published after the date of the Tribunal's decision, though similar views had been expressed by a majority of a full court (Lee and Carr JJ) when the matter had come before this court: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409. 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 291-292) 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, Article 3.1 of which provided: "In all actions concerning children, whether undertaken by ... administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Toohey J put the matter (at 302) as follows: "[I]t is not that decision-makers must give effect to the precept that 'the best interests of the child shall be a primary consideration'. There may be other interests carrying equal weight. Rather, a decision-maker who does not intend to treat the best interests of a child as a primary consideration must give the person affected by the decision an opportunity to argue that the decision-maker should do so." Gaudron J went at least as far (I put it this way because her Honour thought it "arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare"), but in her view it was not necessary to look to the Convention. Gaudron J said (at 304-305): "What is significant is the status of the children as Australian citizens. Citizenship ... involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings, which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society. ... Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection. The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilised countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. ... ... 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." (I have omitted a footnote from this quotation.) It is quite apparent that the Tribunal's decision, given as I have said prior to the handing down of the High Court decision in Teoh, was not a valid decision in accordance with the law as established by the High Court. So far as the judgment of Gaudron J is concerned (and the other members of the majority, who founded their decisions upon the Convention and therefore did not need to consider her Honour's approach, expressed no disagreement with it), the Tribunal did not even advert to "the status of the children as Australian citizens", which she regarded as crucial. But, on the findings of fact made by the Tribunal, all of the children were Australian citizens. The three children born to the appellant's marriage to Pauline Langi were all born prior to the commencement on 20 August 1986 of the Australian Citizenship Amendment Act 1986. They were therefore Australian citizens under s 10 of the Australian Citizenship Act 1948, as it then stood, simply by virtue of their birth in Australia. The position is explained in the judgment of O'Loughlin J in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 45 ALD 16 at 23-25. So far as the three younger children are concerned, they were born after s 10 of the Australian Citizenship Act had been amended, but the finding of fact that their mother was by 1985 an Australian citizen means that they are Australian citizens by virtue of s 10(2)(a) of the Australian Citizenship Act as it now stands, as being each a person born in Australia "a parent of [whom] was, at the time of the person's birth, an Australian citizen or a permanent resident". Indeed, even if the finding of fact is erroneous and Ms Katoa obtained citizenship only afterwards, it seems clear she was at least "a permanent resident". For completeness, it may be noted that s 10(2)(d) confers citizenship also on a person born in Australia who has "throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia". But this period, although it has now elapsed in relation to one of the three children of Ms Katoa, had not elapsed at the date of the Tribunal's decision. The fact that the children's citizenship was not mentioned does not necessarily mean that their best interests were not treated as a primary consideration (cf Teoh at 292). But it does mean, when one looks at the context of the reasons, that a most relevant aspect of the children's position received no consideration. And when neither the Convention nor the children's citizenship is mentioned, and after a lengthy discussion of other considerations the situation of the younger three children is dismissed with the almost perfunctory curtness I have quoted, the conclusion must be that their interests were not treated as a primary consideration. It is not suggested that any notice, as required by Teoh, was given by the Tribunal of its intention to deal with the matter in this way. The decision of the Tribunal which was set aside by consent is not, itself, the subject of the present appeal. But it was incorporated by reference in the later decision which is the subject of the appeal; and the way in which it is there referred to makes the validity of its reasoning crucial. Therefore it is necessary to say a little more about it. All that is stated in the reasoning about the younger three children is contained in the passage I have quoted. That passage wrongly says that the three children "would return to Tonga"; and notes the consequence of their actually going (not returning) there as being that they would not be deprived of the society and guidance of their father. It then comments: "The only hardship in that event would be the disparity in economic opportunities for all concerned [ie parents and children] between those available in Tonga and those available in this country." This leaves out of account that the children, as citizens, would be deprived of the country of their own and their mother's citizenship under our law (cf Teoh at 303, per Gaudron J), and of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle. It ignores the social and linguistic disruption of their childhood, as well as the loss of their homeland. It ignores educational problems, to which reference had been made in the evidence. And it ignores the fact that these young children would not only be transported to a foreign environment, very different from that in which they have grown up thus far, but would also be isolated there from the normal contacts of children with their mother's family, who live in Sydney, and their father's mother and sisters, who also live here. I should make it perfectly clear that none of this is to say that the Tribunal could not have validly reached a decision that the deportation should proceed. I agree with the learned primary judge that it could. But such a decision requires a weighing up of all those factors the Tribunal is bound to take into account, and in this case the interests of the children were a primary consideration. The very fact that the Tribunal spoke of their "return" to Tonga strongly suggests it overlooked that their homeland was Australia. Its reference to "economic opportunities" as their "only hardship" condemns its consideration of their position as totally inadequate. Because it did not see them as being uprooted from their own community, it was able in its final conclusion to speak of "the benefit accruing to the community as a whole by the removal of the applicant" as outweighing "the hardship to the person concerned and his family", as though the community would receive only benefit and would suffer no loss by the removal from its midst of three young Australians at an age when they would be too young to have any choice in the matter. (Cf Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84 at 86-88.) Having regard to the aspects of the Tribunal's decision of 30 September 1994 to which I have drawn attention, it seems to me that those who advised the Minister to consent to an order setting it aside were right. However, unusually, the appellant's application was not referred back to the Tribunal differently constituted, but to the same deputy president. For reasons which Davies and Foster JJ stated in Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43 (in a passage that has been consistently accepted as correct, most recently by another Full Court in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (Davies, Beaumont and Sackville JJ, unreported, 28 November 1997) at 46), when a decision is set aside and the matter is remitted to be heard and decided again, "justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing". In this case, the application having been remitted, the Tribunal remarked on the absence of reasons for the consent order that had been made. It said: "The respondent simply agreed to the applicant succeeding in the appeal, even to the extent of agreeing to pay the applicant's costs." The Tribunal also commented: "No judge has pointed to any error of law contained in my reasons for decision ... ." It then said: "The present proceedings, although a rehearing following His Honour's order, were confined to exploring the one challenged finding of fact and to areas now said to be relevant following the decision in Teoh. As my original reasons for decision can still be regarded as legally intact, I intend to rely upon them, except where they are modified in these reasons... ." The Tribunal went on to refer to the decision in Teoh as affirming the existence of a legitimate expectation requiring persons affected to be given notice if a decision should be proposed which would not accord with the principle that the best interests of the children were to be a primary consideration. In doing so, the deputy president emphasised, as is of course entirely correct, that the law declared by the decision in Teoh is concerned with procedural fairness; it does not create a substantive rule, applicable irrespective of obligations procedurally imposed. He said: "It is generally conceded in the judgments [ie in Teoh] that the existence of a legitimate expectation that the delegate would act in a particular way did not compel the delegate to act in that way." Having quoted the rule as stated by Mason CJ and Deane J at 291, the deputy president added: "Such procedural fairness as is contemplated by this legitimate expectation has now been afforded to the applicant (and to his children) by this rehearing." That seems to me to be a very revealing comment. The only question of procedural fairness raised by Teoh, whether on the view of Mason CJ, Deane and Toohey JJ, or on the view of Gaudron J, is the requirement to give notice "if a decision-maker proposes to make a decision inconsistent with [the] legitimate expectation" that "the best interests of the children were to be a primary consideration" (as Mason CJ and Deane J put it at 291-292); or the requirement to "meet the respondent's legitimate expectation that [the decision-maker] would give the best interests of the children the consideration required by the Convention or inform the respondent of [the decision-maker's] intention not to do so in order that he might argue against that course" (per Toohey J at 303); or that "procedural fairness required that, if the delegate were considering proceeding on some other basis [than the basis of taking into account as a primary consideration the best interests of the children], she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise" (as Gaudron J put the matter at 305). Since the requirement of procedural fairness would only be called into question if the Tribunal proposed not to treat the children's best interests as a primary consideration, and since the Tribunal had emphasised that the High Court "did not compel [it] to act in that way", and it had stated that its "original reasons for decision can still be regarded as legally intact" and that it "intend[ed] to rely upon them, except where they are modified in these reasons", it is very difficult to understand the statement that procedural fairness "has now been afforded" as indicating anything else than an intention to decide the case on the same legal basis as before, although after reconsidering those questions of fact agitated at the second hearing. It is true that, later in the reasons, the deputy president said he proposed "to be guided only by the terms of the judgments in Teoh in determining considerations relevant to the applicant's children"; but those terms, he had pointed out, as I have noted, "conceded ... that the existence of a legitimate expectation that the delegate would act in a particular way did not compel the delegate to act in that way". And in his view, it was only "for procedural purposes" that he was to "deal with [the children's] interests as a primary consideration". That concept is certainly strange, but the deputy president's meaning, in the context of his reasons, is not obscure. As he had said the procedural requirements had been fulfilled, he did not think he had to regard the children's interests as a primary consideration in substance. 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. The Tribunal approached the question, as it related to the children, in its second decision as follows: "14. As I pointed out in my original reasons, the applicant has 6 children. Three of them, aged 13, 12 and 10, are from his marriage to Ms Lange [sic] which has since been dissolved. The other 3 children, aged 7 [actually, on the evidence, he was aged eight at the date of this decision], 6 and 3 respectively, are from his present relationship with Ms Katoa. Evidence was given at the previous hearing, and was repeated at this hearing, that if the deportation order were carried out, Ms Katoa would return to Tonga with the applicant and the 3 youngest children. If the best interests of these 3 children, viewed as a primary consideration, are to be served by a continuing close and daily relationship with their father, then the carrying out of the deportation order will best serve those interests. No other competing interests of these 3 children were demonstrated." The Tribunal then went on to refer to the position of the older children, and to the evidence of the clinical psychologist concerning the attachment of the children to the appellant. The Tribunal stated its general conclusions about the children as follows: "21. The best interests of the 3 youngest children will clearly be served by remaining part of their nuclear family and by moving to Tonga as contemplated. I am prepared to accept that a natural desire exists in the 3 older children to continue to see their father regularly. Apart from this desire, however, there is no stronger interest of theirs to be served by his remaining in Australia. The facts, for example, are quite different from those in Teoh where the mother, because of her addiction to drugs, was incapable of looking after the children. The evidence of Mary [one of these older children] is that she lives a settled, happy existence. I have no reason to doubt, on any of the evidence put before me, that her 2 siblings are similarly situated. Having regard to all the other factors to be considered in this application, I have concluded that the best interests of the 3 older children will be served by remaining with their mother. The other primary considerations were considered in my earlier reasons. These included an assessment of the possibility of the applicant's future relapse into alcoholic addiction. I set out in paragraph 34 of my earlier reasons why I was left with the feeling that there was a real risk of a lapse in certain events. This was the one finding of fact in the previous reasons that was challenged in these proceedings." Consideration was then given to the evidence of Mr Taylor, the clinical psychologist, on the topic of alcoholism, and the conclusion was reached that the "risk of a lapse is still there". The Tribunal referred to the nature of the crime as requiring "an acceptable level of risk of recidivism [that] was much lower" (than with other crimes). Its final conclusions were expressed as follows: "27. Questions of hardship have not changed. No claim has been made that deportation would inflict undue hardship on Ms Lange [sic] or, for that matter, on the applicant. Ms Katoa and her 3 children will accompany the applicant. I have already dealt with the possible hardship that might be suffered by the 3 older children. 28. None of the material put before me on the rehearing has seriously disturbed the balance of considerations which I arrived at on the previous occasion. Considering all these factors one against the other, I then came to the conclusion that the very serious nature of his crime, the consequent unacceptability of even a small risk of reoffending and the short length of lawful permanent residence in this country up to the date of the commission of his crime, outweighed the hardship that I had discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community. I am still of that view. 29. Accordingly the decision under review is affirmed." It will be observed that, consistently with the deputy president's statement at the beginning of this second set of reasons that no judge had pointed to any error of law in his earlier reasons, which could "still be regarded as legally intact", his final conclusions do not consider whether a different approach to the matters to be taken into account, giving a primary weight to the best interests of the children, would lead to a different result, but whether "the material put before me on the rehearing [ie the further evidence] has seriously disturbed the balance of considerations which I arrived at on the previous occasion". In paragraphs 14 and 21 of the second set of reasons, where he actually referred to the children, he did so in terms that assumed the deportation would be carried out, and that ignored the younger three children's position as Australian citizens, their family and social ties with Australia and the broad disruption to their lifestyle and expectations which was to be brought about. He dismissed all these matters in three sentences: "If the best interests of these 3 children, viewed as a primary consideration, are to be served by a continuing close and daily relationship with their father, then the carrying out of the deportation order will best serve those interests. No other competing interests of these 3 children were demonstrated. ... The best interests of the 3 youngest children will clearly be served by remaining part of their nuclear family and by moving to Tonga as contemplated." It is true that the earlier reasons had referred to the problem of "educational facilities" in Tonga (though not in a manner which acknowledged that problem as a real consideration) and to "the disparity of economic opportunities" (which were there described as the "only hardship" the younger three children would suffer). But the whole point of the setting aside of the earlier decision and the remittal of the matter for further consideration arose out of the position of the children, and the Minister's acceptance of the fact that it had not been dealt with as the law required. That it should have received such perfunctory treatment at a hearing in those circumstances underlines the significance of the deputy president's rejection of any error in his earlier consideration of the matter, his emphasis on the fact that the High Court had "conceded" that he was not compelled to treat the children's best interests as a primary consideration, and his assertion that the required procedural fairness had "now been afforded to the applicant (and to his children) by this rehearing". I am compelled to conclude that, not only were the children's best interests not made a primary consideration; they were not given adequate consideration at all. They were not treated as a factor of great significance in the decision whether the appellant should be deported. That they were not is highlighted by the way, in paragraph 21, when reaching his conclusion, the deputy president treats the question, not as what the best interests of the children require 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. This, of course, was not a matter over which he had any jurisdiction in respect of Australian citizens. Black CJ stated, in Teoh v Minister for Immigration and Ethnic Affairs at 412-413, a proposition the authority of which is unaffected by the decision of the High Court (see also Flentjar v Repatriation Commission (Beaumont, Branson and Merkel JJ, unreported, 10 October 1997) at 5): "The question is ... whether proper consideration was given to the merits of the case in so far as they related to the break-up of the family unit: see Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 per Sheppard J at 12-14, and the unreported decisions of Wilcox J in Brelin v Minister for Immigration and Ethnic Affairs (unreported, 14 May 1987) and Gummow J in Khan v Minister for Immigration and Ethnic Affairs (unreported, 11 December 1987) referred to by Sheppard J in Hindi; Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 418 per Wilcox J at 434-437. The weight to be given to competing considerations is of course a matter for the decision-maker to decide and that should be kept firmly in mind, but whether proper consideration has been given to the merits of a case concerning a matter that the decision-maker was bound to take into account is another question entirely and one that may be examined in a proceeding for judicial review." In my opinion, this proposition applies to the present case. Because the Tribunal failed to give proper consideration to the children's best interests, the appeal should be upheld; the decision should be set aside; and the matter should be remitted for hearing according to law by the Tribunal differently constituted. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.
On appeal from a judge of the Federal court of australia
REASONS FOR JUDGMENT WHITLAM J This is an appeal from a judgment of Beaumont J dismissing an appeal to the Court from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The proceeding before the Tribunal involved the review of a decision made on 11 January 1994 by a delegate of the respondent ("the Minister") under the Migration Act 1958 ordering the deportation of the appellant. On 14 November 1995 the Tribunal affirmed that decision. The appellant is a citizen of Tonga. He became liable to deportation on 29 May 1992 when he was sentenced to imprisonment for a period of not less than one year because, at the time when the offences for which he was sentenced were committed, he had been in Australia as a permanent resident for less than ten years. The application for review of the deportation order was made to the Tribunal on 10 February 1994. The course of that application may be described bearing in mind one fact of central importance for the purposes of the questions of law said to be raised by the appeal from the Tribunal's decision. That fact is that the appellant is the father of six children, all of whom were born in Australia between 1982 and 1992 and live in this country. For the purpose of reviewing the deportation order, the Tribunal was constituted by McMahon DP. The Minister lodged a mass of material with the Tribunal. There were 239 so-called "T" documents. The appellant was legally represented before the Tribunal. His solicitors arranged a psychometric assessment by a consultant psychologist, Mr John Taylor, and also prepared the affidavits used in his case before the Tribunal. A hearing was held in September 1994. Counsel appeared for the appellant. On 30 September 1994 the Tribunal affirmed the decision to deport the appellant. The material before the Tribunal included the Minister's statement on Australia's Criminal Deportation Policy. Paragraphs 9 and 10 of this policy stated: "9. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal out-weighs the hardship to the persons concerned and his/her family. 10. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences." Paragraph 19 of the policy stated the "most important broad criteria" on which deportation decisions would be based as "the nature of the crime; the possibility of recidivism; the contribution that the person has made to the community or can reasonably be expected to make in the future and the family and/or social ties that already exist." A list of factors to be taken into account was then set out, including the following: "· the risk of further offences; · the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably be expected to make; · the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia; · the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected; · any unreasonable hardship the offender would suffer; · ties with other countries;" In its reasons for decision the Tribunal made findings of fact on each of "the broad criteria" in the policy statement. It is not necessary to set out the Tribunal's description of all the evidence and material upon which those finding were based. The appellant's conduct had resulted in what the Tribunal described as "a considerable number of convictions", most of which could "be related to his alcohol abuse". These included convictions for serious assaults on his former wife, who is the mother of his three oldest children. At the time of the hearing before the Tribunal the appellant was still serving the prison sentence for the offences which had rendered him liable to deportation. His term of imprisonment was not due to expire until 6 August 1996. The Tribunal ultimately found the nature of that crime to be "very serious indeed". The possibility of recidivism was accordingly a very real issue before the Tribunal. The evidence of Mr Taylor was directed to the appellant's "own rehabilitation with regard to his alcohol abuse and therefore his propensity to offend in the future". The Tribunal stated: "19. The applicant's case was conducted on the basis, principally, that he has now given up alcohol and that his lifestyle has been changed since his imprisonment, because of a revival of his religious faith and the discovery of his religious vocation. He is currently undertaking correspondence studies for mission work through Emmaus College at Epping and Moore Theological College. He attends church services and Bible study groups in prison on a regular basis. He has visits from members of the Tongan Church and the Uniting Church at Burwood. He himself preaches on a regular basis and gives guidance to other prisoners who have had bad experiences through alcohol. When he is released he wishes to take up employment as a missionary. 20. He began attending the Tokaikolo Christian Fellowship Church regularly in 1980. He had recently met Pauline Lange through church meetings held by his sister. They subsequently married on 25 August 1981 and have 3 children born respectively in 1982, 1983 and 1985. 21. The applicant acknowledges that he began drinking alcohol heavily around 1983 after his father's death "placed pressure and responsibility on me to provide for and take care of my mother and sisters in additional [sic] to my responsibilities towards Pauline, our children and my business responsibilities". By 1985 he acknowledges that he was a heavy drinker and that he "had an alcohol problem". He was drinking almost everyday and the alcohol was beginning to affect his behaviour. He agreed in his affidavit that when he was drunk he was aggressive to Ms Lange but said that he was not ever aggressive to his children. 22. There were a number of separations between the applicant and Ms Lange until they went their separate ways in 1986. They were subsequently divorced. In 1985 the applicant began seeing Janette Katoa, a woman who had been born in Tonga but was then (and is now) an Australian citizen. The relationship developed and they began living together. Three children have been born of this union in 1987, 1989 and 1992. The applicant had been sentenced to 4 months imprisonment for assault in 1991. After he was released from prison until he went back to gaol in 1992 on the present charges, Ms Lange's children lived with the applicant and Ms Katoa. The 6 children have always got on well together, even though the applicant continued to abuse alcohol and was separated on a number of occasions from Ms Katoa." The Tribunal accepted that the appellant had not consumed alcohol after "whenever he stopped drinking during the period 1988 to 1991". (The deportation offences had been committed in December 1988.) The Tribunal then continued: "28. Evidence was given by way of affidavit by his former wife, Pauline Lange, and by his present de facto wife, Janette Katoa. Ms Lange described the problems with their marriage and the effect of the applicant's heavy drinking on that relationship. She said that when he was sober he was a good father and a good husband but when he was drunk he could be aggressive toward her. They finally separated in 1985. Between that time and when he went to prison in 1992, she continued to see him mainly because of the children who she said have always liked him. Ms Lange has custody of the 3 children of that marriage and the applicant is entitled to access. 29. Since the applicant has been in gaol, Ms Lange has visited him regularly with the children, first at Long Bay gaol and then at Broken Hill, Silverwater and John Moroney Correctional Centre at Windsor. When the applicant was moved to Broken Hill, Ms Lange and the children went there for a 2-week period so that they could see him every day. Their visits to him at the John Moroney Correctional Centre are far less frequent because of transport difficulties. They converse regularly on the telephone and the applicant is involved in the daily lives of his children. Ms Lange said that if the deportation order is carried out, she and the children would stay because she has a good job here and all of her family are settled in Australia. She believes however that it would be hard on the children. She would not be able to afford to go to Tonga for visits very often or to send them across. Ms Lange affirmed what the applicant had told her, and affirmed her belief that the changes in Mr Vaitaiki are real. 30. Ms Katoa told of their relationship and of the temporary separations she has endured because of the applicant's drinking. She too was under the impression that the beginning of his period of abstinence was after he was released from gaol in May 1991. She told of their life between that time and when he was again sentenced on 29 May 1992 and the opportunities for alcohol that were resisted during that period. She also confirmed his attempts at rehabilitation with the William Booth Institute. In her opinion there has been "a very positive change in David's character". In her view, the cause of that change has been his abstinence from alcohol and the positive influence of the church. 31. She too moved to Broken Hill when he was transferred there so that the other 3 children could see their father regularly. When he was at Silverwater gaol they visited him once a week. They too found it difficult to see him at John Moroney Correctional Centre because of transport problems. The children, she said, become excited about going to visit the applicant and when they are with him they always enjoy themselves. Ms Katoa also observed changes in the demeanour of the applicant. She has found him quieter and more reflective. 32. If the deportation order is carried out, Ms Katoa said that she would return to Tonga with the 3 children because she believes it is important for them to be near the applicant. She said that it is difficult to obtain a job in Tonga and that educational facilities are probably not as good as they are in Australia but in her view those factors are outweighed by the need of the children to be near their father. If she did return to Tonga, however, she would miss her own family who live in and around Sydney. She and the applicant propose to be married when he is released from prison." Later, having made its finding on the nature of the crime, the Tribunal turned to the possibility of recidivism and to the other criteria. It expressed its findings this way: "39. I can not, however, dismiss the evidence of Mr Taylor that the applicant will be an alcoholic for the remainder of his life. He is what his counsel referred to as a non practising alcoholic. To convert that status to that of a practising alcoholic, all that is necessary is the experience of stresses with which the applicant finds difficulty in coping. Since his abstinence became total, he has not really been subject to domestic and economic pressures which prevailed upon him prior to his incarceration. He is yet to be tested in an everyday setting for an extended period. The signs are present that his necessary emotional stability may not be so firmly rooted as to support the resolution of abstinence in a person who has a natural pre-disposition of a moderate to high order towards alcohol abuse. The risk of a lapse may be small, but the consequences are such that the existence of such a risk is not, in my view, acceptable to the community having regard to the other factors to which I have referred. 40. The applicant has made a contribution to the Australian community although it should be noted that the Australian Government has already been put to the expense of deporting him on one occasion. He has had a number of jobs in this country and for some time ran a travel business dealing principally with Tongan clients, which collapsed in 1986. His work in running Bible study groups within the prison system must also be regarded a contribution to the Australian community. His contribution, however, is outweighed by the other factors to which I have referred. 41. He obviously has strong family ties in Australia. He has 6 children, a former wife and a present de facto wife. It is relevant to consider any hardship any or all of them may suffer. 42. Ms Lange has stated that she would not allow the children of the marriage to accompany Mr Vaitaiki to Tonga. Although she herself personally would not suffer hardship if the order were carried out, the children would be deprived of the society and guidance of their father. The 3 youngest children and Ms Katoa would return to Tonga if the deportation order were carried out. The 3 younger children would therefore not be deprived of the society and guidance of their father, nor would Ms Katoa be deprived of his company. The only hardship in that event would be the disparity in economic opportunities for all concerned between those available in Tonga and those available in this country. 43. Although the applicant, his former wife and his present de facto wife have relatives in Australia, there was no evidence that any of them would suffer any hardship if the deportation order were carried out. 44. The evidence shows that the applicant has visited Tonga on many occasions since he first came to Australia. He will be familiar with the country. Although he will need to re-establish himself in Tonga, he will have had the advantage of his TAFE qualification as a travel agent, his religious training, his association with the church and the support of other remaining relatives in Tonga. I do not consider that the applicant himself would suffer any hardship if the deportation order were carried out. 45. Balancing these factors one against the other, I have come to the conclusion that the very serious nature of his crimes, the consequent unacceptability of even a small risk of re-offending and the short length of lawful permanent residence in this country up to the date of commission of his crimes, outweigh the hardship that I have discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community. 46. The purpose of s 55 deportations is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by the removal of the applicant outweighs the hardship to the person concerned and his family. In the present case, I have concluded that the objects of the deportation policy would be served by the order being carried out and that there are no countervailing reasons, on balance, why it should not be carried out. The decision under review is therefore affirmed." The appellant appealed from the Tribunal's decision which, as mentioned earlier, was given on 30 September 1994. After a date for hearing of that appeal had been fixed, the High Court gave judgment in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Subsequently, on 4 May 1995, Sackville J made an order by consent setting aside the Tribunal's decision and remitting the matter to the Tribunal "for reconsideration according to law". His Honour gave no reasons for making that order. For the rehearing the Tribunal was again constituted by McMahon DP. This is not the ordinary practice where a decision has been set aside for error and remitted for rehearing: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43. Nonetheless, the appellant does not seem to have objected to the Tribunal being so constituted. According to counsel appearing on this appeal, no statement of facts and contentions was lodged with the Tribunal. This must have made it difficult for the Tribunal to ascertain the issues requiring "reconsideration". The Tribunal said in the reasons for its decision given on 14 November 1995 that it had been informed that the parties consented to the making of the order setting aside the decision of 30 September 1994 "as a result of " the High Court's decision in Teoh. In those reasons for decision the Tribunal described the rehearing as having been confined to "exploring the one challenged finding of fact and to areas now said to be relevant following the decision in Teoh." In any event, the Tribunal held a further hearing on 2 November 1995. Meanwhile the appellant had been released from prison on parole on 19 October 1995. New solicitors had arranged for him to see Mr Taylor again on 5, 19 and 23 October 1995. Mr Taylor had also interviewed Ms Katoa on 4 October 1995 and seen five of the appellant's children at the consultation on 23 October 1995. A report prepared by Mr Taylor, which addressed the issue of the likelihood of the appellant's relapse into alcohol abuse in the light of the Tribunal's earlier observations on this topic, was received in evidence. In this report Mr Taylor commented on the importance to the appellant "both in a general sense and with regard to his future abstinence from alcohol" of his "close bonds with members of his two families." This time the appellant's case before the Tribunal was presented by the same counsel who appeared before Beaumont J and on this appeal. Evidence was given by Mr Taylor, the appellant, Ms Katoa and the appellant's eldest child. In its reasons for decision the Tribunal said that Teoh obliged it "to have regard to the best interests of the applicant's children and to deal with those interests as a primary consideration for procedural purposes." Specifically on the topic of the appellant's children, the Tribunal said: "14. As I pointed out in my original reasons, the applicant has 6 children. Three of them, aged 13, 12 and 10, are from his marriage to Ms Lange which has since been dissolved. The other 3 children, aged 7, 6 and 3 respectively, are from his present relationship with Ms Katoa. Evidence was given at the previous hearing, and was repeated at this hearing, that if the deportation order were carried out, Ms Katoa would return to Tonga with the applicant and the 3 youngest children. If the best interests of these 3 children, viewed as a primary consideration, are to be served by a continuing close and daily relationship with their father, then the carrying out of the deportation order will best serve those interests. No other competing interests of these 3 children were demonstrated. 15. The 3 older children live with their mother, Ms Lange, and a man with whom she is presently living and who is referred to by the eldest child as uncle. Evidence was given by that child, Mary, who is aged 13. Her evidence was that she had a good relationship with her mother and with uncle. She has friends at school and plays sports. She said in evidence that she would not go to Tonga if the deportation order were carried out. Her preference would be for the father to live in Australia. She said that she would like to see him every day but as she does not live with him she has no firm plans for that eventuality. 16. The 3 older children in fact lived with the applicant and Ms Katoa for some time before he went to prison on the second occasion in 1992. The exact period of time was left in some doubt. According to Ms Katoa, the period was for more than a week. It could have been 3 months or 6 months. She agreed that it was certainly not 2 years or one year, as had been alleged by the applicant and by Mary. 17. The only contact between the 3 older children and their father for the last 3 years has been through visits to various prisons, detailed in my earlier reasons. The applicant was released from prison some 2 weeks before the present hearing. On the 2 intervening weekends, the 3 older children have stayed the weekend with Ms Katoa and her 3 children. Otherwise there has not been a great deal of contact over the years between the 2 families. The balance of reliable evidence suggests that over the past 3 years, the 6 children have had contact only on 4 occasions. 18. Mr Taylor, a clinical psychologist, gave evidence in the original proceedings. To qualify himself to give evidence in the present proceedings, he carried out some interviews with the applicant and with the children. In relation to the children, he reported- "On the 23rd of October Mr Vaitaiki attended the consultation along with five of the six children. They only child who was not present was Andrew who was ill and therefore could not attend. Each of these children was interviewed separately and without the presence of Mr. Vaitaiki, apart from Florence who is only three and a half years of age. Each of the children expressed a strong desire to maintain a close relationship with their father. It was put to each of these children what effect it would have if their father was required to leave Australia. Each of them expressed a view that they would miss him a great deal and that they wanted to continue to be in an ongoing relationship with him. The three and a half year old child Florence of course was not able to verbalise this but it was evident whilst sitting on her father's lap during a part of the consultation that she too is establishing a close bond with her father." 19. These views are necessarily impressions. Observations made at the time might possibly have been of greater assistance had Mr Taylor been fully instructed. In evidence, he said that he had not been told of the plan for Ms Katoa and her 3 children to return to Tonga with the applicant. So far as his evidence concerning those 3 children is concerned, little is to be gained from his impressions. 20. Another impression he had was that the 2 families related well to each other. This was arrived at from his observations of the 5 children in the waiting room. In the light of more positive evidence that the 6 children had been together only on 4 occasions in the previous 3 years, the impressions can be regarded as only of limited value. 21. The best interests of the 3 youngest children will clearly be served by remaining part of their nuclear family and by moving to Tonga as contemplated. I am prepared to accept that a natural desire exists in the 3 older children to continue to see their father regularly. Apart from this desire, however, there is no stronger interest of theirs to be served by his remaining in Australia. The facts, for example, are quite different from those in Teoh where the mother, because of her addition to drugs, was incapable of looking after the children. The evidence of Mary is that she lives a settled, happy existence. I have no reason to doubt, on any of the evidence put before me, that her 2 siblings are similarly situated. Having regard to all the other factors to be considered in this application, I have concluded that the best interests of the 3 older children will be served by remaining with their mother. The other primary considerations were considered in my earlier reasons. These included an assessment of the possibility of the applicant's future relapse into alcoholic addition. I set out in . . . my earlier reasons why I was left with the feeling that there was a real risk of a lapse in certain events. This was the one finding of fact in the previous reasons that was challenged in these proceedings." The Tribunal then went on to deal with Mr Taylor's evidence on the challenged finding of fact, namely the possibility of a relapse. The Tribunal concluded: "24. In my view, the concerns that I expressed in . . . my earlier reasons have not been addressed. As I have previously said I do not question the applicant's sincerity, his belief in his present improvement, his hope and aspirations for the future, and his general motivation. Nevertheless, the situation has not changed. The emotional lability to which I referred in my earlier reasons is still there. The risk of a lapse is still there. Mr Taylor considered that the applicant had learned to cope with his emotions and to control them. I would simply point out that at the time of the hearing the applicant had been out of prison for only 2 weeks and for the previous 3 years had been in a highly regulated and disciplined environment. 25. Other aspects of the previous findings of fact have not been challenged. It must be accepted that the applicant has a poor migration record, a poor criminal record which involved (inter alia) convictions for violent crimes, including an assault in 1986 and malicious wounding in 1987. Most importantly, however, the nature of the crime upon which this deportation order is based has not changed. The applicant was not a first time offender when he sexually attacked the victim. He had a history of violence even though that history was associated with addiction to alcohol. 26. In my earlier reasons, I examined the evidence from the victim which enhanced the criminality of the applicant's conduct. This has not changed. I considered the possibility of recidivism in the light of the seriousness of the applicant's crime and in the light of paragraph 10 of the Minister's policy statement. I concluded that an acceptable level of risk of recidivism was much lower in the case of the applicant's crime and its effect on the community which I described in paragraph 37. This has not changed. 27. Questions of hardship have not changed. No claim has been made that deportation would inflict undue hardship on Ms Lange or, for that matter, on the applicant. Ms Katoa and her 3 children will accompany the applicant. I have already dealt with the possible hardship that might be suffered by the 3 older children. 28. None of the material put before me on the rehearing has seriously disturbed the balance of considerations which I arrived at on the previous occasion. Considering all these factors one against the other, I then came to the conclusion that the very serious nature of his crime, the consequent unacceptability of even a small risk of reoffending and the short length of lawful permanent residence in this country up to the date of the commission of his crime, outweighed the hardship that I had discussed, any hardship referable to the length of his actual residence in Australia and his contribution to the Australian community. I am still of that view. 29. Accordingly the decision under review is affirmed." It will be observed that, in paragraph 28 of its reasons set out above, the Tribunal adhered, in terms, to the conclusion stated in paragraph 45 of its earlier reasons for decision. The notice of appeal from the Tribunal stated the questions of law to be raised as follows: "(1) Whether the decision of the Tribunal was so unreasonable that no decision-maker, acting reasonably, could have so decided in the following respects:- (a) making a finding that the best interests of the three younger children would best be served by returning to Tonga (the first finding), which finding was contrary to the evidence; (b) the first finding failed to recognise the fundamental human rights of the three younger children to grow up in Australia, their native land; (c) the first finding lacked reasonable proportion in weighing the impact of deportation (with consequent assumed removal of the three younger children from Australia) against the policy of criminal deportation; (d) making a finding that the best interests of the three older children would be served by their remaining with their mother while their father, the applicant, was deported to Tonga (the second finding), which finding ignored the evidence as to the value of the father to the three older children; and (e) making a finding that various factors outweighed the hardship to the six children (the final finding), which finding failed to reflect the requirement of the decision in Minister for Immigration v Teoh (1995) 128 ALR 353 (Teoh) that pursuant to the United Nations Convention on the Rights of the Child (CROC), a decision-maker should give primacy to the best interests of the children, and not bundle up all factors, when weighing up the factors relevant to a decision to deport. (2) Whether the Tribunal failed to take into account relevant considerations, namely:- (a) in the making of the first finding, that growing up in the land of one's birth and citizenship is a "competing interest" when ordering deportation on the basis of children accompanying the deportee; (b) that the "competing interest" of the three younger children to remain in Australia (with their father) went to the best interests of the children which was a primary consideration pursuant to the decision inTeoh and CROC; (c) in the making of the second decision [scil. finding], that the physical presence of the father was a relevant consideration in weighing the best interests of the children; (d) that the best interests of the three older children, including their involvement with their father, was a primary consideration pursuant to the decision inTeoh and CROC; (e) that the "balance of considerations" required that the best interests of the children be given primacy of interest. (3) Whether the Tribunal erred in law in misconstruing the evidence of Mr J Taylor." The appellant did not press question (3) before us. The other two questions apparently fasten on three explicit "findings" of the Tribunal in paragraphs 14, 21 and 28 of its reasons for decision. (As stated, the questions suggest that the nominated grounds of judicial review are relied on to vitiate those very findings, rather than to upset the Tribunal's exercise of discretion.) At first instance Beaumont J held that Teoh laid down a rule of procedural fairness. Counsel for the appellant seemed to accept this proposition and did not contend that there had been a want of procedural fairness before the Tribunal. Yet counsel was unwilling to abandon the assertion in the notice of appeal from the Tribunal that Teoh required it in the present case to "give primacy to the best interests of the [appellant's] children". (Emphasis supplied.) It should be said, therefore, quite simply, that Teoh was decided by reference to the requirements of natural justice (Mason CJ and Deane J at 291-292, Toohey J at 302-303 and Gaudron J at 304-305), and that the primary judge was correct. Nonetheless, the Tribunal did state the first two of its impugned findings in terms of the "best interests" of the appellant's children. This reflects the language of the principle enshrined in Art 3.1 of the United Nations Convention on the Rights of the Child ("the Convention"). The Tribunal expressed its ultimate finding under the rubric of "hardship", as it is called in the Minister's policy statement. It is not submitted that the Tribunal should not have had regard to that policy. In view of the way that the Tribunal stated its findings, I find it difficult to see how it could be argued that the Tribunal failed to take account of the children's "best interests" as a relevant consideration. Indeed, counsel for the appellant conflated the two grounds of judicial review in the way in which he developed his submissions. The appellant's challenge rests, in effect, on the single ground of unreasonableness within the principle stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-233. Counsel for the appellant repeated a submission, specifically rejected by Beaumont J, that the Tribunal's giving of reasons was "perfunctory to the point of glibness". In particular, he was critical of the statement in paragraph 42 of the earlier reasons that the "3 youngest children and Ms Katoa would return to Tonga" and the statement in paragraph 14 of the latest reasons that "Ms Katoa would return to Tonga with the applicant and the 3 youngest children". He pointed out that the three youngest children were born in Australia and had never been to Tonga. No doubt, that is so, but in her own evidence on 2 November 1995 Ms Katoa told the Tribunal it was her intention "to take the children back" to Tonga. This was also the effect of her earlier evidence referred to in paragraph 32 of the Tribunal's first set of reasons. The language is understandably somewhat loose. Such nitpicking does not support the extravagantly phrased submission, which was rightly rejected by the primary judge. It may be readily conceded that, standing by itself, the conclusion as to the "best interests" of the youngest children expressed in paragraphs 14 and 21 of the Tribunal's reasons sounds odd. But that conclusion must be seen in context. The Tribunal was considering whether a deportation order should be made. One of the matters to which it had to turn its mind was what would happen to the appellant's children if he were deported. The mother of the youngest children gave evidence of her intention in such an eventuality. The Tribunal referred in paragraphs 32 and 42 of its earlier reasons to that evidence, which it plainly accepted. The evidence was repeated at the second hearing although, in cross-examination, Ms Katoa said that it was her intention to bring the children back to Australia for education "because I know the education in Tonga is not that good." The Tribunal did not refer to that rider in its reasons for decision when, in paragraph 14, it once more accepted Ms Katoa's evidence of her intention to take the children with her to Tonga if the appellant were deported. The history of Ms Katoa's relationship with the appellant and the superior educational facilities in Australia, all of which were referred to in the earlier reasons for decision, would have permitted the Tribunal to find it unlikely that she would follow him to Tonga with the youngest children if he were deported. In that eventuality those children would possibly have been deprived of what the Tribunal described as "the society and guidance of their father" and "a continuing close and daily relationship with their father". But the Tribunal concluded that that would not happen, if the appellant were deported. Of course, it would also not happen if he were not deported. The Tribunal can have hardly overlooked that fact since its exercise of discretion involved the very question whether to deport the appellant. The situation in respect of the three oldest children is different. Their mother has custody of them and no real question arose of any of them living with the appellant and his second family. The mother of these children was adamant that she would not be taking them to Tonga. The deportation of the appellant would thus effectively end his access to these children. That is why, no doubt, the Tribunal concentrated on the evidence of their circumstances in paragraphs 15-21 of its second set of reasons. Again, the conclusion in paragraph 21 about "the best interests of the 3 older children" must be read in the context of the Tribunal turning its mind to what would happen to these children, if the appellant were deported. That is whether their interests were best served by staying with their mother in Australia or travelling to Tonga with their father in the unlikely event that he obtained custody. In an extreme case, it would be open to a decision-maker to conclude that it was a positively good thing to have children placed beyond the influence of a deportee. That was not, of course, this case. The later reference to the hardship suffered by the three oldest children as a result of the appellant's deportation shows that the Tribunal did not mean to suggest that the interests of these children were going to be enhanced by his deportation. Beaumont J referred to the Tribunal's careful, detailed and anxious consideration of the whole matter. His Honour held that it was not open to characterize as unreasonable the Tribunal's conclusions that the appellant seeks to impugn. I respectfully agree. The conclusions, expressed as they were, were reasonably open on the evidence accepted by the Tribunal. The "hardship" referred to in paragraph 28 by way of repetition of the Tribunal's original conclusion is described in paragraph 42 of the earlier reasons. The Tribunal's findings about the children's "best interests" were subsumed under the criteria in the Minister's policy statement as factors weighed in the balancing exercise by the Tribunal. Those findings, although they employ language used in Art 3.1 of the Convention, must be read in context. They were not findings to which no reasonable decision-maker would have come, and no error of law has been thus demonstrated in making them. The Tribunal was not bound, as a matter of law, to apply the provisions of the Convention. The Tribunal was not obliged by virtue of the Convention to accord more weight to the interests of the appellant's children than to the need to protect Australian society. (Nor, it may be observed, did the Tribunal give any indication to the appellant that it would do so.) Beaumont J was of the view that the appellant really sought, impermissibly, to have the Tribunal's decision reviewed on its merits. In the well-known passage from his judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 25 at 40-42, Mason J emphasized the caution with which a court should proceed in reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, so that the court does not exceed its supervisory role. Once it is appreciated that the Convention has no application to the exercise of the discretion under the Migration Act so as to require any greater weight to be accorded the particular interests of the putative deportee's children over the interests of the community in general, any argument that the Tribunal's decision in this case was manifestly unreasonable cannot succeed. I should now state why I have the misfortune not to share the view of the majority that the Tribunal's decision involved an error of law because it failed either to give "proper consideration" (Burchett J) or to give consideration "properly" (Branson J) to the best interests of the appellant's children. This case is a very different case to Teoh. In that case the Departmental policy instructions considered by the Minister's delegate made no mention of the effect on children of a decision whether or not to grant an applicant resident status. In this case the Minister's policy expressly required the criterion of "family ties" to be assessed taking into account "the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by the deportation". The statement in paragraph 46 of the Tribunal's first set of reasons is not a "conclusion" or finding about benefit to the community flowing from Ms Katoa's intention to take the three youngest children to Tonga. The Tribunal is merely paraphrasing paragraph 9 of the Minister's policy. In its first reasons the Tribunal plainly had regard to the interests of the appellant's children. What it did not do is indicate whether it took them into account as a primary consideration. When the Tribunal came to consider the matter further, I can perceive nothing perfunctory in its treatment of the children's position. It did not matter whether they were lawful residents or Australian citizens. The Tribunal was required, as it had previously done, to take into account any hardship which would be caused to them. What Teoh required was that the Tribunal, absent notice and an adequate opportunity of persuading it otherwise, should give a decision on the basis that the best interests of the children were to be a primary consideration. It does not matter whether this expectation or assumption arises from the ratification of the Convention or from the status of the children as Australian citizens. The Tribunal's reference to dealing with the children's best interests "as a primary consideration for procedural purposes" is a trifle cryptic. But I certainly do not read that statement as a revelation that the Tribunal did not think that it had to have regard in substance to the children's interests as "a primary consideration". If that were the case, it would make no sense for the Tribunal to express its findings in the way that it has. It may also be remarked that in paragraph 21 of its final reasons the Tribunal referred to the "other primary considerations". This is entirely consistent with what Mason CJ and Deane J said in Teoh (at 289) about the Convention not requiring the best interests of the child to be "the primary consideration". In Teoh Gaudron J referred (at 304) to the "special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved" and the "expectation that a civilized society would be alert to its responsibilities to children who are, or may be, in need of protection". The "break-up of the family unit" was also the matter for consideration referred to by Black CJ in the Full Court: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 410-415. In the event, in the High Court Mason CJ and Deane J (at 292) did not consider that the Minister's delegate failed to take into account the consequences of the break-up of the family unit. The exercise of the State's power to refuse a person the grant of resident status or to deport a person may, of course, bring about the break-up of the family unit. It was in that context that Gaudron J referred to the "special vulnerability of children" and their "need for protection". The "protection" is that provided to children by a family. I do not understand her Honour to be referring to children being "deprived" of "protection and support" provided "medically" by the country of their citizenship. The provision of such government support is a subject of political debate and might be a very ephemeral consideration. (In Australia the provision of medical services paid for by the government is, for the time being at least, not dependent on a child's citizenship.) Of course, if a child did have a particular medical problem that could be treated only in Australia or at very great expense in a country where he or she might go to live with a deportee, that would be a very real matter to be considered. That is not the kind of case presented to the Tribunal. It considered the disruption to the lifestyle of the appellant's three youngest children if they went to Tonga. There was no evidence of any particular "expectations" on their part being disrupted. The appellant's case before the Tribunal obviously rested on his imminent separation from the three oldest children. That is, no doubt, why at the rehearing the scope of Mr Taylor's evidence was extended to cover the appellant's "close bonds with members of his families". The Tribunal carefully dealt with this question in paragraphs 14-21 of its final reasons. It referred in detail to the living arrangements of the three oldest children, of whom the appellant's former wife had custody, and to the degree of contact between the half-siblings. In particular, the Tribunal attached little weight to the views of Mr Taylor. It is not necessary to agree with the Tribunal's findings about the children's interests but, in my opinion, it is very clear that the Tribunal has taken those interests into account. The appeal should be dismissed with costs.
I certify that the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam
on appeal from a judge of the federal court of australia
AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
BRANSON J I have had the advantage of seeing in draft both the reasons for judgment of Burchett J and Whitlam J. I shall not repeat the matters there set out. Although the amended notice of appeal raises the broad issue of the extent to which the Administrative Appeals Tribunal ("AAT") gave consideration to the best interests of the children of the appellant, it does so in a way which appears to reflect a failure properly to understand the basis of the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. As Burchett and Whitlam JJ point out in their respective reasons for judgment, the Teoh decision is firmly based on principles of natural justice. The majority of the High Court held in Teoh's Case that the ratification by Australia of the United Nations Convention on Rights of the Child ("the Convention") gave rise to a legitimate expectation that a decision-maker would, in conformity with the Convention, treat the best interests of Mr Teoh's children, in circumstances similar to those with which this case is concerned, as a primary consideration. The majority further held that the existence of such legitimate expectation did not compel the decision-maker to act in conformity with the Convention, but that it did have the consequence that if the decision-maker proposed to make a decision inconsistent with such legitimate expectation, procedural fairness required that the persons affected should be given notice, and an adequate opportunity of presenting a case against the taking of such course (see per Mason CJ and Deane J at 291-292). The amended notice of appeal in this case does not complain of any failure by the AAT to afford natural justice to the appellant or his children. This may be because, although it was not made clear when the matter was before the AAT on the second occasion whether theAATdid or did not propose to make a decision inconsistent with the legitimate expectation identified in Teoh's Case, it is accepted by the appellant that he had had a full opportunity to place before the AAT both matters relevant to the identification of the best interests of the his children, and his case against the AAT reaching a decision on a basis which did not treat the best interests of the children as a primary consideration. By its reasons for decision, the AAT has indicated that it did seek to treat the best interests of the appellant's children as a primary consideration. In a number of places in its written reasons for decision the AAT is concerned to identify the best interests of some or all of the appellant's children. Although the statement which appears in the AAT's reasons for decision; namely: "I am therefore to have regard to the best interests of the applicant's children and to deal with those interests as a primary consideration for procedural purposes." (emphasis added) is a curious one in the circumstances, I consider that the reasons for decision of the AAT, read as a whole, are to be understood on the basis that the AAT did purport to act in conformity with the Convention. It may be noted that the amended notice of appeal has apparently been drafted on this basis. If the reasons for decision of the AAT are considered on the above basis, it is noteworthy that nowhere do they seek to identify what would, in the circumstances before the AAT, be the result that would overall be conducive to the best interests of the children. At best they give consideration to the children's best interests in a limited way within a restricted framework. For example, the AAT concluded that the younger children's interests in a "continuing close and daily relationship with their father" would be served by his being deported in circumstances in which they would accompany him to Tonga. It reached this conclusion without, apparently, having regard to the fact that by so accompanying him they would have to leave the community in which they had lived all of their respective lives, start a new life in a new land, and lose the many benefits available to them as citizens of Australia. As to the older children, the AAT concluded that their best interests would be served by remaining in Australia with their mother, should their father be deported. It reached this conclusion without, apparently, having regard to the break up of their family unit which would flow from their father's deportation, with consequential restrictions on their subsequent contact with their father and half-siblings and a likely diminution in their father's capacity to influence and guide them. I conclude, in broad agreement with Burchett J, that although the AATpurported 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 (Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 per Black CJ at 414; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 per Toohey J at 392; Flentjar v Repatriation Commission (Full Federal Court, 10 October 1997, unreported) at 5). In the circumstances of the approach which it adopted having regard to the decision of the High Court in Teoh's Case, the AAT was bound to give consideration to the best interests of the children (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39). Its failure properly to do so was thus an error of law. Although such error is not one precisely identified in the amended notice of appeal, in view of the way in which the appeal was argued, I do not consider that the respondent has suffered any disadvantage by reason of the deficiency of the amended notice of appeal. The respondent had the opportunity to address, and did address, this Court on the approach taken by the AAT in its consideration of the best interests of the children. I agree with the orders proposed by Burchett J. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Counsel for the Respondent: J S Hilton SC and A S Bell
Solicitor for the Respondent: Australian Government Solicitor
Teoh
Minister for Immigration and Ethnic Affairs
(1994) 49 FCR 409
(1995) 183 CLR 273
(1981) 35 ALR 388
(1986) 162 CLR 24
(1994) 49 FCR 84
(1990) 26 FCR 39
(1988) 20 FCR 1
(1993) 45 FCR 418
(1995) 128 ALR 353
(1986) 162 CLR 25