Wan v Minister for Immigration & Multicultural Affairs

(a) The finding that the applicant's actions against David Zhao were part of organised criminal behaviour;

(b) The finding that the applicant's sentences for the various offences exceed a total of 12 months." 14 The second ground of appeal was that the Tribunal did not consider the best interests of Mr Wan's children. That was explained in the written submissions in this way: "The Tribunal purported to give consideration to 'the best interests of any relevant children'…the Tribunal failed to make a finding on what were the best interests of the children… Nowhere does the Tribunal identify whether it would be in the children's best interests to live in China or Australia." 15 The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides: "(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." 16 The statutory framework within which Mr Wan seeks a visa involves ss 501 and 499 of the Migration Act. At the relevant time, s 501 relevantly provided as follows: "(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a) subsection (2) applies to the person;… ……………………… (2) This subsection applies to a person if the Minister:

(a) having regard to the: (i) the person's past criminal conduct; or (ii) the person's general conduct; is satisfied that the person is not of good character…" Section 499 relevantly provided as follows: "(1) A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing." 17 Thus two questions arise where s 501 is under consideration. The first is the question of whether or not the Minister is satisfied that an applicant is not of good character. The second is whether to exercise the residual discretion for the Minister to decline to refuse to grant a visa notwithstanding that he is satisfied that the applicant is not of good character. 18 Ground 1 in the proceeding before me is concerned with the first question. Ground 2 is concerned with the second question. I shall deal with each ground separately.

GOOD CHARACTER 19 At the time of the reviewable decision, there was in place a general direction under s 499 dated 25 November 1997. The Tribunal accepted that it was obliged to have regard to that general direction in determining whether Mr Wan is or is not of good character. 20 The relevant material contained in the general direction is as follows: "3. The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:

· where a non citizen has committed a crime, been sentenced to a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;

· where a non citizen has been convicted of offences, or the non citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;

· where there is membership of, or close association with, any group or organisation, however small, which is involved in criminal activity;

· where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody." 21 In its reasons the Tribunal commenced to deal with the matters raised by the direction as follows: "The applicant's criminal behaviour falls within the terms of these paragraphs. His actions against David Zhao were part of organised criminal behaviour. They were carried out in conjunction with a number of assistants and were intended to damage a perceived business rival. The sentences for the various offences exceed a total of 12 months. The offences, as the Judge pointed out, were of a serious nature. These offences alone and their consequences would reflect serious concerns in the community about the character and conduct of Mr Wan as a non-citizen." 22 The Tribunal went on to consider Mr Wan's attitude towards migration law as also giving rise to concerns which will be reflected in the Australian community. However, it was the passage that I have set out about which complaint is made by Mr Wan. It was said that the Tribunal was intending to apply the first and third points in the general direction. The first point is concerned with penalty imposed for commission of a crime. It requires either a single sentence exceeding 12 months or cumulative sentences for 24 months or more. Neither of those prerequisites was satisfied in the present case since the total period of detention ordered was less than 24 months and the total for the most serious penalty was less than 12 months. 23 Secondly, it was said that the evidence concerning the assault on David Zhao did not constitute evidence that Mr Wan was engaged in "organised criminal behaviour". It was contended on his behalf that organised criminal behaviour as referred to in the Tribunal's reasons was the type of behaviour that is of concern to major crime investigation authorities such as the National Crime Authority. That authority defines organised crime as "a systematic conspiracy to commit serious offences". 24 I do not consider that either of the criticisms indicates any error on the part of the Tribunal. The statement that the sentences for the various offences exceed a total of 12 months is accurate and correct. The Tribunal did not purport to deal with the matter under the first point in the direction. Nor did the Tribunal purport to deal with conduct of Mr Wan in relation to the third point in the direction. 25 I consider that a fair reading of the passage indicates that the Tribunal was drawing attention to the premeditated nature of the offence for which Mr Wan was convicted. It was "organised" in the sense that Mr Wan apparently summoned the assistance of others to engage in premeditated and conscious criminal behaviour. That is explained by the next sentence. It is clear in my view that all that the Tribunal was doing in the passage in question, was summarising in the Tribunal's own words, the activities that the Tribunal considered indicated a concern in the community about character and conduct of a non-citizen. 26 The matters that are referred to are clearly capable of falling within the second point in the direction. It is clear that Mr Wan has been convicted of offences and it is clear that the Tribunal was taking the view that he had behaved or conducted himself in a manner that could give rise to concerns in the Australian community. I do not consider that there was any error of law demonstrated in relation to the passage in question.

RESIDUAL DISCRETION 27 The second ground arises out of the decision of the High Court in the Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 ("Teoh"). The appellant relied on observations made by Sir Anthony Mason and Sir William Deane concerning the consequences of Australia having become a party to the United Nations Convention on the Rights of the Child. Their Honours said, at 291: "…ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as "a primary consideration" Later on at the same page, their Honours said: "…if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated." 28 It is common ground that the considerations referred to in those passages are binding on me in relation to this case. Further, the Minister does not contend that any step was taken by the Tribunal to give notice that it intended or proposed to make a decision inconsistent with any legitimate expectation that the Tribunal would treat the best interests of the children as a primary consideration. That being so, there will have been a denial of procedural fairness if it can be shown that the Tribunal did not in fact treat the interests of Mr Wan's children as a primary consideration. The question before me, therefore, is whether the Tribunal did in fact, in making its decision, treat the best interests of the children involved as a primary consideration. It was put that that requirement will not have been satisfied unless the Tribunal in fact gave proper, genuine and realistic consideration to the children's best interests - see Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 at 631. 29 The Tribunal made the following observations in its reasons: "32. There is a residual discretion vested in the Minister notwithstanding my finding that the applicant is not of good character. The relevant general direction deals with discretionary matters only briefly. There is no reason why considerations other than those set out in the direction ought not to be taken into account in determining whether the discretion ought to be exercised in the applicant's favour." 33. A consideration previously recognised in the Migration Instruction Series and now recognised in the current Ministerial Direction is the best interests of any relevant children." Thus it is clear that the Tribunal turned its mind to the question of the best interests of the children. The reference to the Migration Instruction Series is, as the Tribunal recognised, a reference to an instrument that was not binding on the Tribunal. That instrument, however, was before the Tribunal. In its preamble it says as follows: "This instruction outlines the legal, procedural and policy requirements to be met when considering the circumstances of visa applicants or visa holders under the character provisions of section 501 of the Migration Act 1958." Section 9.9 is headed: "Exercising the Discretion to refuse/not refuse the grant after a negative character finding." Paragraph 9.9.2 then provides as follows: "In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including: · the circumstances of the person at the time of the application. These include but are not limited to: ……………………… - the best interests of any child associated with the visa applicant/s;" 30 The other instrument to which the Tribunal referred was a subsequent Ministerial Direction pursuant to s 499. However, that direction did not come into force until some five weeks after the decision under consideration. The preamble to that direction commences as follows: "This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958." Part 2 is headed "Exercising the Discretion" and Paragraph 2.3 contains the following: "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 relationship between a child or children and the person under consideration, the best interests of the child or children." 31 While the Tribunal did not treat that as binding, quite properly so, it is significant that reference was made to it in the reasons of the Tribunal. At least it indicates, in my view, that the Tribunal was conscious of a requirement, in the circumstances, that it must take account of the best interests of any relevant children. While no specific reference is made to Teoh,the references indicate that the Tribunal had in mind the requirement to do so. 32 The reasons in relation to the interests of children are, as counsel for Mr Wan submitted, somewhat sparse. However that of itself is not an error of law. In the light of the passage that I have just quoted from the reasons (paragraph [29] above), I consider that a fair inference can be drawn that the Tribunal did, in fact, intend to treat the best interests of any relevant children as a primary consideration. 33 The Tribunal went on to say, as follows: "34. So far as Annie is concerned, it may be noted that she spent almost the first three years of her life in China, away from her mother. A future life in China, should she accompany her father back to that country, would be easier for her than a child of a different ethnic background born in Australia. Andrew, of course, is only 10 months old and is too young to have culturally identified with Australia. If Mr Wan returns to China leaving behind his wife and children, Mrs Wan would undoubtedly suffer hardship. There would be no impediment, however, to her visiting China and returning from time to time as she has done on at least six occasions in the last few years. She is an Australian citizen and is free to travel between both countries. There might be some residual hardship to her parents, who live with her, and there might be some financial hardship if the Chinese restaurant were obliged to close. None of these subsidiary matters, however, outweigh the strength of community expectations to which I have referred." 34 That passage indicates, in my view, that the Tribunal had concluded that it would be in the best interests of the children that Mr Wan should not be refused a visa. The Tribunal was considering the possibilities in which the children might be permitted to remain with their father. They might travel to China with him and the express reference to that possibility indicates that the Tribunal considered that that was not beyond the realms of possibility. The clear assumption, however, it seems to me from the Tribunal's reasons, is that the Tribunal was assuming that it would be in the best interests of the children generally to remain in Australia, and that there was no real detriment from their father returning to China, apart from the financial hardship. I am not suggesting that that was in any way minimised. 35 It is clear that the Tribunal found that the matters summarised in the passage that I have just set out did not outweigh the strength of community expectations, in the light of the finding that was made in relation to the character of Mr Wan. I do not consider that Mr Wan has made out his complaint based on any failure on the part of the Tribunal to treat the best interests of children as a primary consideration. It would, of course, have been preferable for the Tribunal to set out in some more detail the reasoning that led to the conclusion that the subsidiary matters did not outweigh the strength of community expectations. I did not understand Mr Wan to rely on the Tribunal's characterisation of the matters as "subsidiary" as an indication that the Tribunal had not treated the interests of children as primary.

FAILURE TO GIVE REASONS 36 A further ground relied on by Mr Wan was alleged failure to comply with s 43(2b) of the Administrative Appeals Tribunal Act 1975 (Cth). Section 43(2b) provides as follows: "Where the Tribunal gives in writing the reasons of its decision, those reasons shall include its findings on material questions of facts and a reference to the evidence or other material on which those findings were based." 37 Provisions such as s 43(2b) allows a party dissatisfied with a decision to determine whether some reviewable error has been committed by a Tribunal in making its decision. That is the objective of such a provision - see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at paragraph 36 ("Singh"). The question is whether, on a fair reading of the reasons of the Tribunal, it did explain why it reached its decision. The question is, would Mr Wan and his adviser, as a practical matter, be significantly better informed as to why the Tribunal has reached the decision that it did if the Tribunal had stated expressly rather than implicitly, some of the matters concerning the best interests of children relied on by Mr Wan - see Singh at paragraph 62. 38 Mr Wan contended that the Tribunal should have considered and made findings on the following matters: (a) whether the whole family could return to China and, if so, whether it would be in the best interests of the children to remove them from Australia and deny them access to the benefits of living in Australia, including the benefits of lifestyle and education. (b) whether it would be in the best interests of the children if Mr Wan was to return to China alone, leaving them with their mother in Australia. (c) whether it would be in the best interests of the children if they accompanied Mr Wan back to China and their mother stayed behind in Australia. 39 There was considerable evidence before the Tribunal given by both Mr Wan and Mrs Wan concerning the interests of the children. That evidence, it is fair to say, indicated, almost unequivocally, that the best interests of the children would be served by remaining in Australia. The question before the Tribunal, however, was not whether it was in the best interests of the children to stay in Australia or to return to China. The question was whether it was in the best interests of the children that Mr Wan should be given the visa for which he had applied. The Tribunal considered the possibility, so far as the children were concerned, of either remaining in Australia or returning to China with their father. The Tribunal, at least implicitly, concluded, in my view, that it was preferable for the children to remain in Australia but that it was possible for them to go to China with their father. I do not consider, on balance, that there has been a failure to comply with s 43(2b) of the Act. It follows, in my opinion, that the appeal should fail. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Solicitor for the Respondent: Australian Government Solicitor