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Federal Court of Australia |
Last Updated: 19 January 1999
IMMIGRATION - Class 812 Transitional (Permanent) visa - refusal of grant of - applicant convicted of possession of prohibited imports - applicant not of good character - discretion to grant visa - whether decision-maker gave a primary consideration to the best interests of a child.
Migration Act 1994 (1958) (Cth), 22 475, 476, 500, 501.
Migration Regulations , sch 4, cl 4001.
United Nations Convention on the Rights of the Child.
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (FCA/FC)
Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (FCA/FC)
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409
KWONG LEUNG LAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 364 OF 1997
SACKVILLE J.
SYDNEY
4 MARCH 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 364 of 1996 |
|
BETWEEN: | KWONG LEUNG LAM
Applicant |
|
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
|
|
JUDGE: | SACKVILLE J. |
| DATE OF ORDER: | 4 MARCH 1998 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.
3. The Minister pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 364 of 1997 |
|
BETWEEN: | KWONG LEUNG LAM
Applicant |
|
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent |
|
JUDGE: | SACKVILLE J. |
| DATE: | 4 MARCH, 1998 |
| PLACE: | SYDNEY |
The applicant claims that the AAT made errors of law in reaching its decision. Accordingly, the Court has jurisdiction to entertain the appeal: see ss 475(1)(c), 476(1)(e), 500(1)(b) of the Act. Although the notice of appeal raised a number of grounds, the applicant's written submissions supported only two arguments. These were the following:
* Secondly, the AAT's exercise of discretion had miscarried because the AAT misconstrued and misapplied the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, in that it failed to give effect to the best interests of the applicant's child, David, as "a primary consideration" in accordance with the requirements of art 3 of the United Nations Convention on the Rights of the Child ("Convention").
In his oral argument Mr Gageler, who appeared for the applicant, elaborated only the second of these arguments.
THE CONVENTION, LEGISLATION AND REGULATIONS
It was common ground that the Migration Regulations ("Regulations") specify the criteria governing the applicant's eligibility for a Class 812 Transitional (Permanent) visa. The criteria include the public interest provisions contained in cl 4001 of schedule 4 to the Regulations. Clause 4001 is satisfied if the applicant meets the requirements of subcll (2), (3) or (4):
Section 501 of the Act, so far as relevant, states as follows:
"(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.
(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.
(4) An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa."
The instrument ratifying the Convention was deposited for Australia on 17 December 1990 and entered into force for Australia on 16 January 1991. On 22 December 1992 the Attorney-General declared the Convention to be an international instrument relating to human rights and freedoms, pursuant to s 47(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See Teoh, at 285, 306. Article 3 of the Convention is as follows:
"501(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
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
...
THE FACTS
"1. 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.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision."
The following account is taken from the findings of the AAT.
The applicant was born in 1959 in a small village in Guangdong Province in the People's Republic of China ("PRC"). He remained in the village until 1979, receiving some schooling and assisting his father with farming. In 1979, the applicant entered Hong Kong as an illegal immigrant. He was subsequently apprehended and fined, but permitted to stay in the Colony. He remained in Hong Kong until 1985.
In about December 1985, the applicant stowed away on board a cargo ship, which brought him to Australia. He jumped ship in Sydney. He obtained work at a Chinese restaurant, known as the Emperor's Garden, first as a kitchenhand, then as an assistant cook.
On 12 April 1988, the applicant was married at the Emperor's Garden restaurant, in a traditional Chinese ceremony, to Ms Lu, at that time a Vietnamese citizen residing in Australia. On 20 November 1988, they had a son, David.
On 11 May 1989, the police raided the applicant's home at the Sydney suburb of Marrickville. The raid followed receipt of information by the National Crime Authority about a Chinese male working at the Emperor's Garden restaurant who was suspected of having a large cache of drugs stored in the roof of his home. A quantity of heroin was discovered and the applicant was charged with possession of heroin and possession of heroin for supply.
On 10 July 1990, in the New South Wales District Court, the applicant pleaded guilty to a charge of possessing a prohibited import, namely heroin, contrary to s 233B of the Customs Act 1901 (Cth). The maximum penalty for this offence was twenty-five years imprisonment or a fine not exceeding $100,000, or both. The weight of the pure heroin involved in the applicant's case was 1433.3 grams, with an estimated street value of $3 million. Judge Hosking sentenced the applicant to a minimum term of seven years imprisonment and imposed an additional term of two years and four months, with a direction that the minimum term was to date from 11 May 1989 and to expire on 10 May 1996.
The applicant subsequently lodged an unsuccessful appeal against this sentence to the New South Wales Court of Criminal Appeal. In dismissing that appeal the Court said this:
On 8 September 1990, the applicant married Ms Lu who had become an Australian citizen. The marriage took place when the applicant was on remand awaiting his trial. The applicant applied for a permanent visa on 20 December 1993. That application was rejected on 22 April 1996.
"At the time of his arrest on 11 May 1989, the applicant was an illegal immigrant residing at 100 Neville Street Marrickville with his wife, their child and relatives of his wife. On 11 May 1989 a number of police from the National Crime Authority searched the applicant's home in exercise of a search warrant and found the subject heroin secreted in a disused chimney in the roof. The applicant told the police that he was given the heroin by a person whom he only knew as Joe. He was to receive $10,000 for minding the heroin. The applicant stated that he initially met Joe at the racetrack and since that time had met him on a number of occasions at a TAB in a hotel near his place of work in Chinatown. During these meetings Joe had given the applicant money which he did not have to repay and racing tips.
After the heroin had been given by Joe to the applicant and he had been told that it was to be placed in a safe place where it would not be ravaged by rodents or subject to wetting, the applicant wrapped it in aluminium to afford further protection and secreted it in the chimney. According to statements made by the applicant to the police, the heroin had remained in this position for some six weeks as Joe had not returned to collect it. During the course of his remarks on sentence his Honour said:
`The prisoner's explanation to the police as to how he became involved is not one which compels acceptance. However it is uncontradicted that it is true. As his counsel Mr Stratton QC says that none of the paraphernalia of the sale or retail of drugs was found at the house, for example no scales were found or sums of money or any other matter which might suggest that he was actually a distributor. However, the prisoner himself did not give evidence before me but I do accept that his level of intelligence is low. I also accept that he is well down the line so far as culpability is concerned. There is no suggestion he was involved in the actual importation. His role was to mind it for someone else.'
And his Honour said later in his remarks on sentence:
`Mr Stratton also submitted that as a matter of general approach it is necessary to distinguish between those actually involved in the importation as against those who merely possess the import. That submission seems to me to overlook the fact that Parliament has prescribed the same maximum penalty in each case.'
And later his Honour said:
`I accept the submission of Mr Guy who appeared for the Crown that whilst it is not suggested the prisoner is anywhere near the apex of the organisation he is at least as blameworthy as any courier.'
The applicant was born on 21 September 1959 in Canton where his entire family lived in a one room hut. He is barely literate in his own language, unskilled in English and his level of intelligence is low. At the age of 20 he escaped to Hong Kong where he lived illegally for some time working on low wages. He managed to enter this country, having apparently paid for a passage on a freighter. He obtained employment in Sydney as an assistance cook at a Chinese restaurant.
It was submitted on his behalf that by reason of his illegal status and his (in effect) living in a ghetto he was particularly vulnerable to involvement in criminal activities....
[I]t is the duty of this Court to determine whether his Honour exceeded the sentencing discretion which was available to him in the light of those positive findings of fact, generous as they may be. Bearing in mind the subjective material which was before his Honour and the serious objective factors and that in sentencing for an offence of this nature general deterrence is a very important element, I am not satisfied, despite the careful and detailed submissions which have been put to us on behalf of the applicant, that his Honour did exceed in any way the sentencing discretion which was available to him."
THE AAT'S REASONS
The AAT set out extracts from the Minister's Procedural Advice Manual ("PAM") which incorporated Ministerial policy and provided guidance, inter alia, as to the interpretation of s 501 of the Act. The material extracted included par 9.9:
It will be seen from the note to par 9.9.1 that the guidelines did not address the "findings" of the High Court in Teoh, pending guidance from the Minister.
"9.9 Exercising the discretion to refuse/not refuse the grant after a negative character finding
9.9.1 When an officer is satisfied that a person is not of good character after having regard to the person's past criminal conduct, general conduct or by association with a person, group or organisation which is involved in criminal conduct, the discretion to refuse or not refuse a visa under section 501 is enlivened.
NOTE: In all cases following an adverse character finding, all mitigating factors must be balanced against the adverse character finding. While there is an issue regarding the application of international obligations when considering the discretion to refuse after a finding that a person is not of good character subsequent to the findings of the High Court in the Teoh case, these will not be considered in [the Migration Service Instructions] until further guidance is sought from the Minister. In any applications where there is an Australian citizen or resident child the case should be referred to Director, Health and Character Section, Migration and Temporary Entry Branch, Overseas Client Services Division, Central Office.
9.9.2 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:
. genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;
. the best interests of any child associated with the visa applicant/s;
. the strength of the family, social, business and other ties to the Australian community;
. periods of previous lawful residence;
. the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);
. family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of international obligations under the Refugee Convention (see section 8).
* whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and
* whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.
The above list of matters is not exhaustive.
9.9.3 Unless the officer is satisfied that there is sufficient credible evidence available to overcome the discretion to refuse on character grounds, based on the above factors, and that undue harm would be unlikely to result to the Australian community, a decision should usually be made to refuse to grant the visa." (Emphasis in original.)
The reasons pointed out that the guidelines in PAM were not binding on it, but that the AAT had consistently stated that it would follow publicly declared Ministerial policy or Departmental guidelines unless there was some good reason not to do so. The AAT then made an observation of some importance in this case:
The AAT identified two distinct issues for consideration arising under s 501 of the Act. The first was whether it was satisfied that the applicant was not of good character, having regard to his past criminal conduct. The second, which arose only if the first was answered unfavourably to the applicant, was whether in the circumstances a visa should not be refused, despite the adverse finding as to character.
"In the present case there is no good reason why the guidelines should not be followed."
On the question of character, the AAT identified a number of activities engaged in by the applicant which allowed an objective assessment to be made that he was not a person of good character. These activities began with his illegal entry into Hong Kong and then into Australia as a stowaway; continued with his illegal employment at a restaurant and his involvement in a serious drug offence. The AAT considered that these activities were in themselves sufficient to show that the applicant was not a person of good character. He had shown "a cynical and systematic disregard for the laws of this country which he entered by stealth". He had concealed his presence from the authorities until apprehended for a serious offence. The AAT found that the applicant did not convey the impression that he felt either contrition or remorse for his past actions. The reasons continued as follows (par 49):
The AAT then considered whether, despite being satisfied that refusal under s 501 of the Act to grant the visa was justified, the power should not be exercised in the circumstances of the case. The AAT's reasons on this question were as follows:
"The pattern of conduct that he has shown has demonstrated that he is prepared to breach the laws of this country and, earlier, Hong Kong to gain entry to each jurisdiction. Having illegally arrived here, be became involved in what was acknowledged to be a very serious offence involving trafficking in drugs. At no stage did he provide the police or NCA with a plausible explanation of how the drugs came into his possession. He continued to maintain before the Tribunal that he thought they were precious `medicines', as they had been given to him by a man known simply as `Joe' for safekeeping. Mr Lam was unhelpful and evasive when giving his evidence, and gave no details about how he arrived in this country. In these circumstances, the Tribunal was not satisfied that Mr Lam might not engage in further illegal conduct if the need or opportunity arise."
Accordingly, the AAT affirmed the decision under review.
"50. The PAM guidelines provide advice on the policies to be adopted when a decision-maker exercises the discretion not to refuse the grant of a visa under section 501.... The guidelines make it clear that the factors which lead to the adverse character finding must be balanced against all relevant mitigating factors. A primary consideration for the Tribunal must be that it is satisfied that undue harm would not be likely to result to the Australian community should a visa be granted. The Tribunal must weigh up the risks of the likelihood of a person reoffending or engaging in unacceptable conduct in Australia against such mitigating factors as may emerge from the circumstances of each individual and visa application case.
51. In submissions made on behalf of Mr Lam, Mr Jones urged the Tribunal to give its primary attention to the interests and rights of two Australian citizens associated with the applicant - his wife and his son. David Lam, who is now eight years of age, was born in this country and grew up here. He continues to attend school in Australia and though no doubt bilingual, the language of his socialisation is English. He has never been to the PRC and if his father is refused a visa, his parents face a terrible choice. That choice would be for the whole family to go to the PRC or for Mrs Lam to remain in Australia with her son and be separated from Mr Lam for what would probably be the rest of their lives. Should David go to live in China he would find himself in a totally alien society, and one completely different from the one he had grown up in. He would also probably find himself living in quite serious poverty and would have to recommence his education in a completely different environment and language. The evidence presented to the Tribunal indicated that David was a bright child who did well at school.... He was unlikely to have such good educational prospects in the PRC. The applicant's wife, Ms Lu, attested to the genuineness of her relationship with Mr Lam and told the Tribunal that she has no relatives in the PRC, and has never even been there.
52. If the family decided that David should stay in Australia with his mother the economic situation might be a little better and they would probably be able to survive on social security. The real suffering experienced by David would be psychological and would affect his development. He has already grown up for a significant time without the physical presence of his father but his parents have been very careful to try and maintain a relationship, even during the long period of his incarceration. This relationship had resumed in a physical sense with Mr Lam's release. The psychological impact of Mr Lam being again taken away from him would be devastating.
53. Mr Jones drew the Tribunal's attention to the decision of the High Court in [Teoh]. In that case the High Court considered the effects of [the Convention] upon Commonwealth decision-making regarding deportation and like matters. The High Court determined in Teoh that even though the Convention had not been incorporated into Australian municipal law by statute, its ratification by the Commonwealth gave rise to a legitimate expectation that a decision-maker would exercise his or her statutory discretion in conformity with the terms of the Convention.
54. Mr Hardman did not contest the relevance of Teoh to the present proceedings. He said, however, that the welfare of David Lam was one of the primary considerations that should be taken into account by the Tribunal when weighing up the factors concerned with the exercise of its discretion. It was certainly not the primary consideration. In a number of decisions since Teoh, the Tribunal has adopted the view of its effect suggested by Mr Hardman.... There is little purpose elaborating further on these decisions in the present case.
55. Mr Hardman said that the respondent did not dispute that if Mr Lam were to be removed from this country that it would cause great upheaval to him, his wife and their son. Such upheaval was unavoidable but had to take second place to the need to protect the broader interests of the Australian community. These interests included being protected against the depravities of those who sought to distribute heroin and other drugs to the community, actions which he submitted were clearly identified as justifying the expulsion of non-citizens under the respondent's criminal deportation policy applying to section 200 of the Act.
56. It was also important, said Mr Hardman, that the Australian community should have the ability to determine its composition on the basis of character. The community also had to have trust in the integrity of its migration program. Mr Lam had completely by-passed the recognised migration safeguards in a way which was not simply an administrative oversight or the result of a fraudulent representation made by him. The Tribunal should consider the message that would be sent to those who wished to come to Australia through the legitimate mechanisms established under the nation's migration program. It would send completely the wrong message if Mr Lam were permitted to remain in the country having evaded all of the normal requirements of applying for entry and being considered on merit for acquiring a lawful residency in Australia. The Tribunal must think about the deterrence of others who might be persuaded to use similar methods to come to Australia if they felt that they would ultimately be permitted to stay here.
57. The Tribunal has given careful consideration to the submissions made on behalf of both of the parties. On the evidence before it the Tribunal is satisfied that a bona fide marriage and relationship continues to exist between Mr and Mrs Lam and that both are committed and dedicated parents. Mrs Lam has already endured substantial hardship and depravation during the years of Mr Lam's imprisonment. She has sustained their relationship through this period of incarceration and has assumed most of the responsibilities for brining up David.
58. The Tribunal did not have the benefit of a psychological report regarding David's current status and wellbeing but the evidence which was available suggested that he was a well adjusted and bright boy with a sound educational performance at school. The Tribunal accepts that a decision to deny Mr Lam a visa which would enable him to remain in this country would have a profound impact on all members of the Lam family and especially David. It would place upon the family the extremely difficult choice of all moving to the PRC, or Mr Lam going alone to that country whilst Mrs Lam and David remained in Australia. The Tribunal is conscious of the provisions of the [Convention], especially those of articles 3 and 9.... [These were then set out.]
59. In the present case the Tribunal is faced with the unenviable task of balancing the obligation of the Convention and Mr Lam's family and associated ties to Australia against the other factors which must be taken into account when exercising the discretion under section 501 of the Act. The Tribunal notes that since his release, the applicant has been working at Neptune Palace Restaurant...and has not been involved in any further offences. His pattern of conduct since leaving the PRC has involved an ongoing series of illegal actions. Under the established policy guidelines the principal factor which must be considered is the protection of the Australian community. The Tribunal has already expressed an adverse opinion about Mr Lam's general prospects of becoming a law abiding member of society.
60. The Tribunal accepts the submission made by Mr Hardman about the importance of deterring others like Mr Lam who illegally enter Australia as stowaways or in other ways which bypass the nation's legitimate migration program. Maintaining the integrity of that program requires that those who reach these shores undetected as stowaways, and who then commit a serious crime, should not be seen to benefit from their illegal actions. In this case the legitimate interests of the Australian community must outweigh the hardship which a decision to refuse permission to take up lawful residence imposes on the family of this illegal immigrant."
THE APPLICANT'S SUBMISSIONS
The applicant, in his written submissions, contended that the AAT had erred in determining that he was not a person of good character. The error was said to be that the AAT had applied a presumption that, by reason of the applicant's past criminal conduct, he was a person of bad character. Accordingly, the AAT, particularly in par 49 of its reasons, had wrongly imposed an onus on the applicant to satisfy the AAT that he was a person of good character. It had failed to ask the right question, namely, whether it was positively satisfied that the applicant, at the time of the decision, was so lacking in moral quality so as not to be of good character.
The applicant's second argument, which was developed in Mr Gageler's oral submissions, was that the AAT had misconstrued and misapplied Teoh. Teoh had held that the ratification by Australia of an international Convention created a legitimate expectation that a decision-maker would act in conformity with the terms of that Convention. As Mason CJ and Deane J said (at 291-292):
The AAT was therefore bound, as a matter of procedural fairness, to apply Art 3 of the Convention.
"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".
Article 3 required the AAT to give effect to the best interests of the applicant's child as "a primary consideration". The AAT, in par 59, said that "[u]nder the established policy guidelines the principal factor which must be considered is the protection of the Australian community" (emphasis added). This passage, and the AAT's reasons as a whole, demonstrated that it had not regarded the best interests of the applicant's child as a primary criterion. Thus, it had committed an error of law.
Since oral argument revolved around the applicant's second submission, I shall address that first.
THE TEOH ISSUE
There was some common ground between the parties. Mr Hilton SC, who appeared with Mr Harvey for the Minister, did not dispute that the AAT had fallen into error if it had not regarded the best interests of the applicant's child as a primary criterion. Nor did he dispute that, if the AAT had made such an error, the Court was empowered to review the decision pursuant to the provisions of the Act to which I have already referred. No submission was made that the Court was precluded from granting relief by reason of s 476(2)(a) of the Act.
The critical question, then, is whether the AAT failed to act in conformity with art 3 of the Convention. As Mr Gageler pointed out, Teoh itself illustrates that a decision-maker who treats the good character requirements as the primary consideration in a case in which the interests of children are involved is unlikely to be regarding the best interests of the children as a primary consideration. In Teoh, Mason CJ and Deane J, with whom Gaudron J agreed, considered (at 292) whether the delegate in that case made her decision without treating the best interests of the children as a primary consideration:
(A fuller extract of the delegate's reasons appears in the report of the Full Federal Court's decision in Teoh: Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409, at 422, per Lee J.)
"It can be said that the delegate carried out a balancing exercise in which she considered the plight of Mrs Teoh and the children and recognised that they would face a `very difficult and bleak future' if the respondent were deported. On the other hand, she considered that the respondent had been convicted of very serious offences and this factor outweighed the `compassionate claims'. However, it does not seem to us that the Panel or the delegate regarded the best interests of the children as a primary consideration. The last sentence in the recommendation of the Panel reveals that, in conformity with the departmental instructions, it was treating the good character requirement as the primary consideration. The Panel said:
`The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh's criminal record.' (Emphasis added.)
The language of that sentence treats the policy requirement as paramount unless it can be displaced by other considerations. There is no indication that the best interests of the children are to be treated as a primary consideration. 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. The decision necessarily reflected the difference between the principle and the instruction." (Emphasis in original.)
Toohey J addressed the same question in a similar fashion (at 303):
It is well-established that the reasons of the decision-maker, in this case the AAT, are to receive a beneficial construction. The joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 271-272, approved observations of a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, at 287. The joint judgment in Wu said that in Pozzolanic the Full Court
"It is apparent that the delegate did not approach the matter on the footing that the interests of the children were a primary consideration. Instead, she appears to have treated the policy requirement that applicants for the grant of resident status be of good character as the primary consideration. It need hardly be said that the decision-maker might treat the best interests of the children as a primary consideration yet, in all the circumstances, refuse the application for resident status."
In the face of this warning, which rests on fundamental considerations going to the nature of judicial review, it is impossible to be other than "acutely conscious of the need for the Court to exercise restraint in hearing appeals from the [AAT]": Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431, at 435, per Hill J. Particularly is this so when the AAT has prepared detailed and careful reasons, as in the present case. Nonetheless, I have concluded that the AAT did fail to give effect to the terms of art 3 of the Convention.
"collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be `concerned with looseness in the language...nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: `The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.'
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."
Mr Hilton, correctly, submitted that it was necessary to read the AAT's reasons as a whole and not to examine pars 59 and 60 in isolation from the remainder of the analysis. He submitted that, read in this way, the AAT had appreciated the significance of Teoh to the proceedings and had understood that the welfare of the applicant's child was "one of the primary considerations [to] be taken into account by the Tribunal when weighing up the factors concerned with the exercise of its discretion" (par 54). The PAM guidelines, in terms, were not intended to apply where Australia's international obligations under the Convention required consideration. The AAT had made findings that to deny the applicant a visa would have a "profound impact" on David (par 58) and that the "psychological impact of [the applicant] being again taken away from him would be devastating" (par 52). Essentially, the AAT engaged in the exercise contemplated by Teoh, namely, looking to the best interests of the child as a primary consideration and asking whether the force of any other considerations outweighed it. The AAT made the difficult decision that the other considerations, notably the importance of deterrence and of maintaining the integrity of the migration program, did outweigh the best interests of the child.
The Minister's submissions encounter the difficulty that the penultimate sentence of par 59 states that under "the established policy guidelines the principal factor which must be considered is the protection of the Australian community". As Mr Gageler pointed out, this sentence occurs in carefully expressed reasons in which the Deputy President, when summarising the Minister's submissions made by the Minister's counsel, explicitly distinguished between the welfare of the child being one of a number of primary considerations and being the primary consideration (par 54). That sentence strongly suggest that, despite the analysis earlier in the reasons, the AAT regarded the interests of the child as outweighed because the protection of the Australian community was the principal factor to be considered.
I would be extremely reluctant to overturn a decision of the AAT merely because of the unfortunate phrasing of one sentence in the reasons. But I think the difficulty goes beyond that. When I asked Mr Hilton for an explanation of why the AAT's reasons included the sentence in question, he replied that the Deputy President was summarising what he understood to be the effect of the guidelines. However, according to Mr Hilton, the AAT then proceeded to apply, not the guidelines, but the quite different weighing process dictated by Teoh. Mr Hilton (rightly in my view) did not suggest that the explanation for the sentence was simply a typographical mistake or other error of this kind.
I do not find this explanation convincing. I think that the sentence in par 59 is indicative of a more pervasive reasoning process, which reflects a failure to apply art 3 of the Convention. The AAT, after quoting par 9.9 of PAM, explicitly stated that there was "no good reason why the guidelines should not be followed" (par 13). Yet the guidelines themselves acknowledged, in the note to par 9.9.1, that they had not been drafted so as to provide assistance where an issue arose concerning the application of Australia's international obligations. Further guidance on this question was to be sought from the Minister and in the meantime departmental decision-makers were directed to refer cases of this kind to a particular officer.
Paragraph 9.9 of PAM, in the form quoted by the AAT, was of course drafted prior to the decision in Teoh. The paragraph refers to undue harm to the Australian community being "a primary consideration", including "the best interests of any child associated with the visa applicant". But par 9.9.3 suggests that where an applicant is found to be not of good character then, unless the officer is satisfied, inter alia, that
In the light of par 9.9.3 it is not surprising that the AAT characterised the guidelines in the way it did, that is, as identifying protection of the Australian community as the principal factor to be considered.
"undue harm would be unlikely to result to the Australian community, a decision should usually be made to refuse to grant the visa."
In my view, a fair reading of the AAT's reasons indicates that, despite the references to Teoh, the AAT gave effect to the guidelines contained in PAM. It interpreted the guidelines as requiring the protection of the Australian community to be regarded as the principal factor, even in a case raising for consideration the best interests of a child. Despite Mr Hilton's invitation, I cannot read pars 59 and 60 of the AAT's reasons as applying criteria other than those contained in the very guidelines the AAT said should be followed. Had the AAT intended to depart from those criteria, so soon after summarising them, it could have been expected to say so. Paragraph 60 of the AAT's reasons is in terms quite consistent with the AAT applying the guidelines it had previously identified and the effect of which it had summarised in par 59.
It follows from what I have said that the AAT did not correctly apply art 3 of the Convention to the circumstances of this case. According to Teoh, the AAT was not obliged to apply art 3 of the Convention. However, if it did not intend to apply the Convention it was obliged, as a matter of procedural fairness, to inform the applicant and to give him an opportunity to make submissions as to why the proposed course should not be followed. This step was not taken. Accordingly, the AAT erred in its approach. As I have already noted, the Minister did not dispute that the error, if established, constituted a ground for setting aside the AAT's decision.
One further comment should be made. In my view this case illustrates the dangers of following guidelines that are not designed for or adapted to the particular circumstances falling for consideration. Where guidelines specifically state that they are or may not be appropriate for a particular category of case, considerable care should be exercised before relying on them in such a case. As the guidelines recognised, the decision in Teoh made it at least questionable whether they were appropriate criteria to apply in a case involving a child resident in Australia.
THE CHARACTER ISSUE
In view of the conclusion I have reached, it is not necessary for me to address the applicant's first argument. It is enough to say that I can see no error in the AAT's approach to the question of character. In my view, it acted in conformity with the terms of s 501 of the Act and of the Regulations: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (FCA/FC).
CONCLUSION
The decision of the AAT should be set aside. The matter should be remitted to the AAT, differently constituted, for determination according to law. The Minister should pay the applicant's costs.
|
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
Sackville |
Associate:
Dated: 4 March, 1998
|
Counsel for the Applicant: | Mr S J Gageler |
| Solicitor for the Applicant: | Mr Ray Turner |
| Counsel for the Respondent: | Mr J S Hilton SC with Mr I Harvey |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 23 February 1998 |
| Date of Judgment: | 4 March 1998 |
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 534 of 1997 |
|
BETWEEN: | KWONG LEUNG LAM
Applicant |
|
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent |
|
JUDGE: | SACKVILLE J. |
| DATE: | 4 MARCH, 1998 |
| PLACE: | SYDNEY |
The file number for this matter should be NG 534 of 1997, not NG 364 of 1997 as stated on the judgment of Sackville J dated 4 March 1998.
Deborah de Fina,
Associate to Sackville J.
Dated: 18 September 1998.
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