CONSIDERATION
21 The Full Court of this Court gave consideration in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 ("Vaitaiki") to the substance of the obligation (should it arise) on an administrative decision-maker, in making a decision affecting a child, to treat the best interests of the child as a primary consideration.
22 The appellant in Vaitaiki was a citizen of Tonga. He had six children, all of whom were Australian citizens. A deportation order was made against him as a non-citizen who had been convicted of serious offences. Mr Vaitaiki applied to the Tribunal for review of the deportation order. Coincidentally the application for review was heard and determined by the same Deputy President whose decision was the subject of the appeal to the Court in this case. Mr Vaitaiki's application to the Tribunal resulted initially in a decision that the decision to issue the deportation order be affirmed. The decision of the High Court in Teoh was published after the date of the Tribunal's reasons, although the decision of the Full Court of this Court in Teoh, which was upheld by the High Court, was available at the time of the Tribunal's decision. An appeal from the decision of the Tribunal was instituted in the Court and by consent the appeal was allowed and the matter remitted to the Tribunal for reconsideration according to law. Unusually the matter was heard and determined on the remittal by the Deputy President who had made the decision which had been set aside by consent. The Deputy President incorporated by reference his earlier reasons for decision in his reasons for decision following his reconsideration of the matter on the remittal. An appeal to the Court from the second decision of the Tribunal was dismissed by a judge of the Court and an appeal from that judgment was made to the Full Court. By majority (Burchett and Branson JJ) the appeal was upheld and the matter again remitted to the Tribunal for hearing according to law by a tribunal different constituted. Whitlam J would have dismissed the appeal.
23 In Vaitaiki, Burchett J pointed out (at 618) that the question which the Tribunal was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported. In that regard, his Honour considered that the failure of the Tribunal to advert to the status of the children as Australian citizens was of considerable significance. With respect to the Tribunal's initial reasons for decision, his Honour (at 614) said:
"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 …. 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." (citation omitted)
24 In considering the Tribunal's written reasons following its reconsideration of Mr Vaitaiki's application, his Honour observed (at 616) that:
"… 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."
25 In Vaitaiki, Branson J accepted (at 630) that the reasons for decision of the Tribunal were to be understood on the basis that the Tribunal did purport to act in conformity with the Convention. At 631, however, her Honour observed:
"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 AAT purported to act on the basis that the best interests of the appellant's children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children's best interests: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 414; 121 ALR 436 per Black CJ; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J; Flentjar v Repatriation Commission (Fed C of A, Full Court, 10 October 1997, unreported) at 5."
26 Having regard to views expressed by the majority of the Full Court in Vaitaiki, the written reasons for decision of the Tribunal in this case, so far as they relate to the interests of the children, are, we consider, open to more severe criticism than the observation that they are "somewhat sparse" (see [18] above). Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. That this is the starting point for the Tribunal's consideration follows from Teoh and from Vaitaiki. The Tribunal did not refer to either of these cases.
27 In view of the obligation placed on the Tribunal by s 43(2B) of the Administrative Appeal Tribunal Act 1975 (Cth) ("the AAT Act") to include in its written reasons for decision "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based", we do not consider that it was open to the learned primary judge to conclude that the Tribunal impliedly found that the best interests of each of the two children indicated that his or her father should be granted a visa. To so conclude was to conclude that the Tribunal failed to comply with the obligation imposed on it by s 43(2B) of the AAT Act. Moreover, immediately after identifying the best interests of the children as a consideration relevant to its determination, the Tribunal turned to consider how the interests of the children would be affected by their accompanying their father to China, or alternatively by their remaining in Australia while he lived in China. This suggests that the Tribunal was concerned to identify, not what decision would be in the best interests of the children, but rather how the children's interests would be affected by a decision to refuse to grant their father a visa.
28 In giving consideration, as it had done in Vaitaiki, to what the children might do if their father were required to cease living in Australia, the Tribunal was not undertaking an inherently inappropriate task. Such consideration was capable of assisting the Tribunal in determining whether the strength of any other consideration or considerations outweighed the best interests of the children. However, it was not a useful thing to do without the Tribunal having first identified what the best interests of the children indicated should be decided with respect to Mr Wan's visa application.
29 The Tribunal considered the interests of the children, were their father to cease living in Australia, on two alternative bases: first, that they would accompany their father to China (presumably with their mother remaining, at least primarily, an Australian resident), and secondly, that they would reside in Australia with their mother after their father had returned to China. Although it is of limited significance to the outcome of this appeal, it is appropriate to note that in considering the interests of the children on these alternate bases, the Tribunal failed to have regard to matters identified by the majority of the Full Court in Vaitaiki as being of importance in a case in which a decision might result in young Australians leaving this country and residing with their father but not their mother.
30 With respect to the first of the alternatives which it considered, the Tribunal noted that the elder child had spent almost the first three years of her life in China away from her mother, and that a life in China would be easier for her than for a child of a different ethnic background born in Australia. The Tribunal further noted that the younger child, then ten months old, was too young to have culturally identified with Australia. The Tribunal's written reasons for decision contain no consideration of the following matters:
(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother's citizenship, "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" (Vaitaiki per Burchett J at 614);
(b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland;
(c) the loss of educational opportunities available to the children in Australia; and
(d) their resultant isolation from the normal contacts of children with their mother and their mother's family
(Vaitaiki per Burchett J at 614 and Branson J at 631).
With respect to the second alternative which it considered, namely that the children would reside in Australia with their mother following their father's departure to China, the Tribunal apparently accorded no significance to the children's loss of regular contact with, and opportunity for guidance by, their father or to the disruption to their family life which would flow from their father's inability to live in this country (Vaitaiki per Branson J at 631). The only personal hardship referred to by the Tribunal in considering this alternative is hardship to Mrs Wan and possible residual hardship to Mrs Wan's parents.
31 Even if we are wrong in concluding that the Tribunal did not identify what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa, the conclusion is, in our view, inescapable that the Tribunal did not treat the best interests of the children as "a primary consideration" in its determination. First, the Tribunal does not anywhere in its written reasons for decision describe the best interests of the children as "a primary consideration". The Tribunal's reference to the Ministerial Direction is not, in our view, sufficient to negate the significance of this omission as the Tribunal also refers to a Ministerial Direction and to a Migration Series Instruction which do not suggest that the best interests of affected children are a primary consideration. Secondly, the Tribunal in par 34 of its reasons for decision (see [17] above) appears to describe matters touching on the interests of the children as "subsidiary matters". Moreover, in the same paragraph the Tribunal finds that matters touching on the interests of the children do not "outweigh the strength of community expectations". That is, the Tribunal does not in fact treat the best interests of the children as a primary consideration but rather treats considerations touching on community expectations as considerations which should prevail unless "outweighed" by other considerations. As Mason CJ and Deane JJ pointed out in Teoh at 292:
"A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it."
32 An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan's children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan's children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.
34 Nothing in the Tribunal's written reasons for decision, however, suggest that it undertook an exercise of the above kind. It did not act on the basis that the best interests of the children were a primary consideration in the exercise of the discretion to grant, or to refuse to grant, Mr Wan the visa for which he had applied. To the extent that it gave consideration to the interests of the children, it did not give proper, genuine and realistic consideration to their best interests. For these reasons, it not having placed Mr Wan on notice that it was considering proceeding on a basis other than that the best interests of his children were a primary consideration, the Tribunal denied Mr Wan procedural fairness.
35 In our view, the appeal should be allowed and the orders made at first instance set aside. In lieu of the orders set aside it should be ordered that the decision of the Tribunal be set aside, the Minister pay Mr Wan's costs of the application and the matter be remitted to the Tribunal differently constituted to be heard and determined again according to law. The Minister should pay Mr Wan's costs of the appeal.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.