In the absence of evidence or submissions about the “reduced life opportunities in relocating to Tonga”, did the Tribunal fail to perform its statutory duty to consider the best interests of a child as a primary consideration?

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 (16 July 2021)

Intro:-

This appeal is concerned with a decision made under s 501CA(4) of the Act not to revoke the mandatory cancellation of the appellant’s visa, originally made by a delegate of the Minister and then affirmed by the Administrative Appeals Tribunal.The appellant, Mr Tohi, sought judicial review of the Tribunal’s decision in this Court on the basis that the Tribunal’s decision was affected by jurisdictional error.

Facts:-

The appellant, Stanley Tohi, was born in Tonga in 1955 and lived there until he was 25 when he settled in New Zealand. He is a New Zealand citizen.

Mr Tohi arrived in Australia in 2010, aged 54, on a Subclass 444 special category temporary visa. That visa permits Mr Tohi to remain in Australia for so long as he is a New Zealand citizen.

The Tribunal found that, since 2014, Mr Tohi has been in a relationship with a Tongan national, Ms Sau, who, at the time of the Tribunal’s decision, was living in Australia without a valid visa. They have a five-year-old son, JT, who was born in Australia in July 2015. When JT was born, Mr Tohi and Ms Sau moved in together.

On 25 March 2017, Mr Tohi drove a car whilst heavily intoxicated and struck a pedestrian who sustained serious injuries to her leg. In December 2017, Mr Tohi was convicted of the offence of aggravated dangerous driving occasioning grievous bodily harm and was sentenced to three years’ imprisonment. Until that time, Mr Tohi had no criminal history of any kind

On 17 August 2018, a delegate of the Minister cancelled Mr Tohi’s visa as required by s 501(3A) of the Act. Mr Tohi made representations to the Minister seeking revocation of the cancellation decision. On 20 December 2019, a delegate of the Minister decided not to revoke the cancellation decision. Mr Tohi applied to the Tribunal for review of that decision. After a two-day hearing, during which Mr Tohi was self-represented, the Tribunal affirmed the delegate’s decision

The legal framework

Section 501(3A) relevantly provides that the Minister must cancel a visa that has been granted to a person if the person is serving a full-time custodial sentence and the Minister is satisfied that the person does not pass the character test because, amongst other things, of the operation of paragraph (6)(a) (substantial criminal record) on the basis of paragraph (7)(a), (b) or (c). Paragraph (6)(a), when read with paragraph (7)(c), provides that a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more.

In relation to the meaning and effect of s 501CA(4), I respectfully agree with the view expressed by Colvin J in Viane v Minister for Immigration [2018] FCAFC 116; (2018) 263 FCR 531 at [73]- [74] (with whom Reeves J agreed) that, if the conditions in paragraphs (a) and (b) are satisfied, the Minister is obligated to revoke the original decision. As Katzmann J observed in Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313, the weight of authority in this Court supports that conclusion (at [80]-[85]). No argument was advanced on the appeal to the contrary.

Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made a direction titled “Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79) which came into force on 28 February 2019. In exercising the power in s 501CA(4) to decide whether to revoke the cancellation of Mr Tohi’s visa, the Tribunal was required to apply Direction 79.

Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen's visa, are articulated in Part C). Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations.

Part C of the Direction then sets out the considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4). These considerations are divided into "primary considerations" and "other considerations". Paragraph 13(2) states that the following considerations are "primary considerations":

(a) protection of the Australian community from criminal or other serious conduct;

(b) the best interests of minor children in Australia; and

(c) expectations of the Australian community.

This appeal is concerned with primary consideration (b) – the best interests of minor children in Australia. In respect of that consideration, paragraph 13.2 of the Direction states as follows:

13.2 Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4) In considering the best interests of the child, the following factors must be considered where relevant:

a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e) Whether there are other persons who already fulfil a parental role in relation to the child;

f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The foregoing mandatory consideration reflects Australia’s international obligations under Article 3(1) of the United Nations Convention on the Rights of the Child which provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The ground of appeal

By an amended notice of appeal filed on 6 October 2020, Mr Tohi sought orders setting aside the decision of the primary judge and quashing the decision of the Tribunal. The amended notice contains a single ground of appeal, namely that the Court erred in failing to find that the Tribunal fell into jurisdictional error by failing to “properly consider” a reason for revoking the cancellation, namely, the best interests of Mr Tohi’s child.

It is common ground that, since this issue was not raised below, leave is required to raise it on the appeal.

Issues:-

a) should leave be granted for the Appellant to raise it on the appeal?

b) Did the Tribunal fail to undertake the statutory duty required by s 499 of the Act and Direction 79, to consider the best interests of Mr Tohi’s child and to make a determination about whether revocation is in the best interests of the child. Mr Tohi argued that the Tribunal did not have regard to all relevant factors bearing on the best interests of Mr Tohi’s child, JT, and thereby failed to “make a determination about whether revocation is in the best interests of” JT as required by paragraph 13.2 of Direction 79, as a mandatory relevant consideration.

Analysis:-

a) Should leave be granted?

The starting point remains the importance to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7. Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being differently conducted: Water Board v Moustakas (1988) 180 CLR 491 at 497. The usual approach of the Court in migration cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 in the following terms (at [48]):_

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

As the above cases emphasise, the merit of any proposed new ground is an important consideration to the grant of leave. This does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31].

In support of the grant of leave, Mr Tohi submitted that: there is no prejudice to the Minister; the ground has merit; the ground concerns a pressing interest of the appellant (his right of residence in Australia); and the ground concerns whether the best interests of a child were properly considered and a child stands to be gravely affected by the decision.

It can be accepted that an adverse decision may have very serious consequences for Mr Tohi as he faces the continued cancellation of his visa and removal from Australia.

For the reasons discussed in more detail below, I have come to the view that the proposed new ground of review has sufficient merit to warrant the grant of leave, notwithstanding the factors weighing in the opposite direction. The ground concerns the Tribunal’s consideration of the best interests of Mr Tohi’s child, JT, who is not a party to the proceeding. The best interests of JT was a mandatory consideration for the Tribunal in exercising power under s 501CA(4), and the Tribunal was under a statutory duty to make a determination about whether revocation is in the best interests of JT. It is apparent that the decision whether to revoke the cancellation of Mr Tohi’s visa is likely to have a significant impact on JT.

b) Consideration of claimed failure to perform statutory task

Applicable legal principles

There was no dispute before the Tribunal that Mr Tohi did not pass the character test (as defined by s 501 of the Act) and therefore the relevant question was whether the Tribunal was satisfied that there was another reason why the decision to cancel Mr Tohi’s visa should be revoked (as per s 501CA(4)(b) of the Act). In considering that question, the Tribunal addressed each of the considerations referred to in Direction 79 in turn. For the purposes of this appeal, it is only necessary to refer to the Tribunal’s consideration of the best interests of Mr Tohi’s young son (which the Tribunal referred to as “Primary Consideration B”).

The question raised by the ground of appeal is whether the Tribunal “properly” considered the best interests of Mr Tohi’s son, JT. In determining that question, it is necessary to have regard to the evidence and submissions put before the Tribunal on that issue, and the Tribunal’s consideration of that material as reflected in its reasons.

In Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh), the High Court considered a decision by the Minister to refuse an application for a permanent entry permit on character grounds because the applicant had been convicted of drug offences and sentenced to imprisonment. The applicant’s wife and young children were resident in Australia. A majority of the High Court concluded that Australia’s ratification of the United Nations Convention on the Rights of the Child, and particularly Article 3(1) of that Convention, gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of the applicant’s children as a primary consideration in making the decision whether to grant the permanent entry permit. The majority found that the applicant had been denied procedural fairness because he had not been afforded an opportunity to present a case against the Minister’s decision not to treat the best interests of the applicant’s children as a primary consideration.

The concept of “legitimate expectation” as a necessary criterion of an entitlement to procedural fairness has since been rejected by the High Court (see the discussion in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [28]-[30] (Kiefel, Bell and Keane JJ) and at [61] (Gageler and Gordon JJ)). However, that does not undermine the conclusion reached by the High Court in Teoh that a breach of the requirements of procedural fairness may occur if a decision to refuse to grant, or to cancel, a visa is made without considering the best interests of a child affected by the decision as a primary consideration, and without giving the applicant an opportunity to be heard on that matter. Such a conclusion has been reached by this Court in cases including Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608 (Vaitaiki), Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, Nweke v Minister for Immigration and Citizenship [2012] FCA 266; 126 ALD 501 and Lesianawai v Minister for Immigration [2012] FCA 897; 131 ALD 27.

The above cases are not directly relevant to the ground of review sought to be relied upon by Mr Tohi in this appeal. Mr Tohi’s amended notice of appeal did not allege any failure by the Tribunal to afford procedural fairness. Rather, Mr Tohi alleged a failure to “properly consider” a reason for revoking the cancellation of the visa, being the best interests of Mr Tohi’s child. Despite that, the above cases have some indirect relevance to the ground of review. The cases explain the breadth of the concept of the “bests interests of the child” emanating, as it does, from Article 3(1) of the Convention on the Rights of the Child. The concept embraces consequences of an administrative decision that may bear upon the welfare of children including, most directly, the break-up of the immediate family unit (see Teoh at 304 per Gaudron J). If the effect of the cancellation of the parent’s visa is that the child is likely to accompany the parent to a third country, the welfare considerations may include separation from the child’s extended family and community, the social and linguistic disruption of childhood, and loss or reduction in education opportunities (see Vaitaiki at 614 per Burchett J and at 631 per Branson J).

Unlike the above cases, in the present case the Tribunal was under a statutory duty to consider the best interests of Mr Tohi’s child as a primary consideration: Rokobatani v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at [12]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [55]. That duty arose by force of s 499 of the Act which, by subsection (1), empowered the Minister to issue Direction 79 and, by subsection (2A), stipulated that the persons or body to whom the Direction was applicable must comply with the Direction. The consideration must be weighed as a “primary consideration”. A failure to address the best interests of a child, where relevant, as a primary consideration is a failure to conduct the review required by the Act and, subject to materiality, constitutes jurisdictional error: Uelese v Minister for Immigration (2015) 256 CLR 203 (Uelese) at [68]; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39].

Furthermore, paragraph 13.2(1) of Direction 79 stipulates that the Tribunal must make a determination “about whether revocation is in the best interests of the child”. As Robertson J concluded in Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 at [18]- [19], it is not enough for the Tribunal merely to have regard to those interests; a failure to make a determination about whether revocation is in the best interests of the child is a failure to complete the exercise of jurisdiction.

In Uelese, the plurality stated (at [64]) that the requirement to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case”. Nevertheless, the Tribunal is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1 (at [30]); see also Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 (at [25]).

Did the Tribunal conduct the review as required by Direction 79?

The factual and legal circumstances confronting the Tribunal in this matter involved a number of contingencies. The contingencies arose from the fact that JT’s mother, Ms Sau, was an unlawful non-citizen with no right to reside in Australia. As a consequence, JT’s right to reside in Australia was derived from Mr Tohi’s migration status.

If the cancellation of Mr Tohi’s visa was revoked, Mr Tohi could remain in Australia and the consequential cancellation of JT’s visa (under s 140(3)) would be nullified. Whether Ms Sau was able to remain in Australia would depend upon making an application for an appropriate visa, such as a partner visa. The prospect of successfully obtaining such a visa could only be assessed as a possibility. Whether JT would remain in Australia was, to some extent, dependent upon whether Ms Sau remained in Australia and, if she did not, whether she sought to have JT relocate with her to a third country (likely Tonga) and whether Mr Tohi contested the relocation.

If the cancellation of Mr Tohi’s visa was not revoked, neither Mr Tohi nor Ms Sau would be able to remain in Australia. By operation of s 140(3), a necessary consequence would be that JT could not remain in Australia. Thus, the practical effect of a decision not to revoke the cancellation of Mr Tohi’s visa would be that JT would depart Australia to live with his father, his mother, or both in another country, presumed to be New Zealand or Tonga.

The representations made by and on behalf of Mr Tohi to the Tribunal concerning JT, both before and during the Tribunal hearing, were limited in their scope. The representations concerned the familial and financial care and support that would be provided to JT if the cancellation of Mr Tohi’s visa was or was not revoked. The representations were to the effect that: while JT’s mother had been his primary carer, Mr Tohi’s extended family in Australia had also provided care and support to him and would continue to do so in the future; JT would in the future benefit from the care and support of his father; Mr Tohi intended to raise JT with JT’s mother, Ms Sau; and, if the visa cancellation was not revoked, Mr Tohi wished to reside in New Zealand and care for JT.

In its reasons, the Tribunal addressed those representations. At paragraph 61, the Tribunal concluded that the consideration, the best interests of JT, weighed in favour of revocation because of the care and support JT would receive in Australia from his father and his father’s extended family. But the Tribunal also concluded that:

"... based on the information before the Tribunal, it would appear that at present the only opportunity for Mr Tohi to live as per his stated intention, in a stable family unit with his son and Ms Sau, would be in a third country.

Based on that latter conclusion, the Tribunal determined that the weight to be given to the consideration, the best interests of JT, was “substantially mitigated”. The Tribunal reiterated this conclusion at paragraph 95, stating:

"Mr Tohi's expectations for the care arrangements of his son are unrealistic or not sustainable given the current migration status of his son and the child's mother. Based on the information available, it would appear Ms Sau's migration status in Australia will be difficult to regularise. For this reason the primary consideration concerned with interests of minor children carries some, though not significant weight in favour of revocation."

The Tribunal’s reasons show that its consideration of the best interests of JT had, as a primary focus, the break-up of the immediate family unit. That focus reflected the representations made to the Tribunal by Mr Tohi, and the circumstance that Ms Sau did not hold a visa to remain in Australia. Thus, even if the cancellation of Mr Tohi’s visa was revoked, JT may not be able to reside in Australia with both parents and a possible outcome was that JT would leave Australia to live with his mother.

As cases such as Vaitaiki make clear, if the effect of the cancellation of the parent’s visa is that a dependent child is likely to accompany the parent to a third country, the considerations that may be relevant to the best interests of the child may include separation from the child’s extended family and community, the social disruption of childhood and loss or reduction in education opportunities. The Tribunal took into account the fact that cancellation of Mr Tohi’s visa would result in JT being separated from his extended family in Australia, but also took into account the fact that JT had the prospect of living with both parents in a third country (either New Zealand or Tonga).

I do not accept Mr Tohi’s submission that the Tribunal "failed to engage in any way" with the effect that a decision not to revoke would mean for JT. The Tribunal engaged with the representations made by Mr Tohi and took into account the fact that JT would depart Australia and relocate to either Tonga or New Zealand. It may be accepted, as Mr Tohi submitted, that the Tribunal did not consider whether, and to what extent, JT might have “reduced life opportunities in relocating to Tonga”.

However, in circumstances where no such submission was put to the Tribunal, and no evidence was adduced in support of any such submission, the Tribunal did not err in failing to consider and make findings about such matters. The Tribunal is not under a general duty to inquire: Sami at [30]; SZIAI at [25]. I accept the Minister’s submission that, in the absence of evidence or submissions about the different educational, economic or social opportunities available to JT in Australia as compared with New Zealand or Tonga, the Tribunal was not required to speculate about such matters in making its determination.

Having regard to the above matters, I am not persuaded that the Tribunal failed to perform its statutory duty to consider the best interests of Mr Tohi’s child as a primary consideration. It follows that the appeal must be dismissed.

Conclusion:-

a) The appellant be given leave to advance the ground of appeal as stated in his amended notice of appeal filed on 6 October 2020.

b) The appeal be dismissed.

c) The appellant pay the first respondent’s costs of the appeal.