Taurino v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119 (25 February 2005)

Last Updated: 1 March 2005

FEDERAL COURT OF AUSTRALIA

Taurino v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119

CONSTITUTIONAL LAW – Immigration – Applicant’s permanent visa cancelled under s 501 of the Migration Act on the basis that he did not pass the character test – Whether applicant was within the Constitutional reach of s 501 – Applicant born in Papua New Guinea of an Australian citizen father – Whether applicant was an ‘alien’ within the meaning of s 51(xix) of the Constitution.


IMMIGRATION – Validity of Minister’s decision – Obligation of Minister to treat as a primary consideration the best interests of the applicant’s children – Failure of Minister to determine what the best interests of the children indicated should be decided with respect to the visa cancellation – Failure to consider the effect of the applicant’s deportation on the children if they remained in Australia.



Singh v Commonwealth of Australia [2004] HCA 43 applied
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 26 AAR 227; 150 ALR 607 considered and applied
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 considered and applied



Migration Act 1958 (Cth) ss 501(2) and (6), 501G(1)

Constitution of the Commonwealth of Australia s 51(xix)





SEBASTIAN JAMES TAURINO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 880 of 2004


WILCOX J
25 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 880 of 2004

BETWEEN:	SEBASTIAN JAMES TAURINO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	25 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the former Minister for Immigration and Multicultural Affairs, dated 1 November 2002, to cancel the applicant’s Transitional (Permanent) Visa under s 501(2) of the Migration Act 1958 (Cth) be quashed.
2. The respondent and every person who is an ‘officer’, within the meaning of the said Act, be restrained from deporting or removing the applicant from Australia in reliance upon the said decision.
3. The applicant be released from further compliance with the conditions set out in order 2 made on 16 September 2004.
4. The respondent pay the applicant’s costs of this proceeding.

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	NSD 880 of 2004

BETWEEN:	SEBASTIAN JAMES TAURINO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	25 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1 This is an application, remitted from the High Court of Australia, in which the applicant, Sebastian James Taurino, applies under s 39B of the Judiciary Act 1903 (Cth) for the constitutional writs of certiorari and prohibition in relation to a decision made on 1 November 2002 by the former Minister for Immigration and Multicultural and Indigenous Affairs (‘the former Minister’) to cancel his Transitional (Permanent) Visa. The former Minister acted in reliance upon s 501(2) of the Migration Act 1958 (Cth) (‘the Act’). The current Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) is the respondent to this application.

2 In support of the application, counsel for the applicant, Mr P Brereton SC, Mr M A Robinson and Mr C D Jackson raised two points: one a constitutional matter and the other a claim of administrative irregularity.

The legislation

3 Section 501(2) of the Act is in the following terms:

‘The Minister may cancel a visa that has been granted to a person if:

(a)	the Minister reasonably suspects that the person does not pass the character test; and
(b)	the person does not satisfy the Minister that the person passes the character test.’

4 Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record within the meaning of s 501(7) of the Act. It is common ground that the applicant has a substantial criminal record within that meaning. His criminal record appears to have arisen out of a heroin addiction.

The Constitutional point
(i) Background

5 The applicant was born in Lae, in the Independent State of Papua New Guinea (‘PNG’), on 11 October 1980. His father, George Francis Taurino, was born in Port Moresby, in what was then the Territory of New Guinea (‘the Territory’), on 10 March 1936. The applicant’s mother, Joyce Mary Taurino, was born in the Territory on 27 August 1956.

6 It is common ground that, at birth, the applicant became a citizen of PNG. The applicant does not contend he has ever become an Australian citizen. However, he argues that, by virtue of his parentage, he is not an ‘alien’ within the meaning of s 51(xix) of the Constitution of the Commonwealth of Australia (‘the Constitution’). Additionally, the applicant says that, by reason of his long residence in Australia, he must be taken to have been absorbed into the Australian community; therefore the Parliament’s power over immigration and emigration (‘the immigration power’) (the Constitution O 51(xxvii)) has no application to him. In consequence, he argues, the Act has no application to him.

7 In relation to the first point, it is relevant to note that, on 26 January 1949, at the commencement of the Nationality and Citizenship Act 1948 (‘the N and C Act’), the applicant’s father became an Australian citizen. This was because s 25 of the N and C Act conferred Australian citizenship on British subjects born in the Territory prior to that date. The applicant’s mother was then not born. On her birth in 1956, she acquired the status of a British subject within the meaning of s 7(1) of the Australian Citizenship Act 1948 (Cth) (‘the AC Act’).

8 Counsel for the applicant read an affidavit made by the applicant’s mother, without objection by counsel for the respondent, the Commonwealth Solicitor-General, Mr D J M Bennett QC and Mr G R Kennett. In that affidavit, the applicant’s mother said she was informed by her husband, George, and believed that:

‘(a) George was an Australian citizen at the time we married;

(b) George had been an Australian citizen for some years prior to our marriage;
(c) George had first travelled to Australian [sic] in or about 1949 or 1950;
(d) George travelled frequently between Papua, New Guinea and Australia from that time until 1982; and

(e) When he travelled, George did so on an Australian passport.’

9 The applicant’s solicitors attempted to obtain access to all Australian incoming and outgoing passenger cards completed by Mr George Taurino. Apparently, the only records now available are microfiche copies of cards dated between 17 July 1976 and 6 January 1982. This material is difficult to read but it appears that Mr George Taurino entered Australia four times during that period and left on three occasions. Each passenger card identifies Australia as his ‘country of citizenship’ and quotes an Australian passport number. It appears that a new passport was issued to Mr George Taurino between August 1978 and June 1981, that is, after PNG obtained its independence. This suggests Mr George Taurino did not opt for citizenship of PNG and thereby forfeit his Australian citizenship.

10 It appears from the microfiche records that Mr George Taurino’s last entry to Australia was on 6 January 1982. The relevant card described his entry that day as ‘Resident returning to Australia’. That entry is consistent with evidence given by Mrs Joyce Taurino that she moved to Australia permanently in 1982. She said she has not since left Australia. Mr George Taurino died at Leichhardt, in the State of Queensland, in 1995.

11 The applicant came to Australia with his parents on 6 January 1982, being then fifteen months old. He travelled on an accompanying family member visa. The effect of this visa, after entry into Australia, was to confer on the holder Australian permanent resident status. The applicant has not since left Australia.

12 It is common ground that, by virtue of the provisions of the AC Act, from the date of his entry into Australia until his eighteenth birthday on 11 October 1998, the applicant was entitled to become an Australian citizen on registration at an Australian Consulate. On his eighteenth birthday, the applicant’s entitlement became subject to the condition that the Minister must be satisfied that the applicant is of good character.

(ii) The applicant’s argument

13 No application for registration was made by or on behalf of the applicant with the result, as the applicant concedes, that he is not an Australian citizen. However, he contends that, at the time of his entry into Australia in 1982, he was:

‘(a) a citizen of PNG under PNG Constitution, Article 66(1);

(b) a person having the status of a ‘British subject" pursuant to Australian Citizenship Act 1948-1973, s.7(1), and Australian Citizenship Regulations, reg 5A [inserted by Australian Citizenship Regulations Amendment (SR1979 No 143)];
(c) accordingly, not an "alien" pursuant to Australian Citizenship Act 1948-1973, s.5(1).’

14 As originally enacted, s 5(1) of the AC Act defined the word ‘alien’ in terms that excluded a person who had the status of a British subject. That exclusion was omitted in 1984: see the Australian Citizenship Amendment Act 1984 (Cth) s 4(2)(a). However, the applicant argues this omission does not derogate from his argument that he is not now an ‘alien’ within the meaning of s 51(xix) of the Constitution. His counsel contend that alienage is a constitutional, not a statutory, concept. They refer to comments by Kirby J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 72; 203 ALR 143 at [79] and [94] (‘Shaw’).

15 Counsel say:

‘The power to make laws with respect to "aliens" is a power to make laws with respect to a particular class of people, the existence of which is assumed. It differs from a power to make laws with respect to a subject matter defined in conceptual terms, such as "bankruptcy", or "divorce". It is akin to the Constitutional power to make laws with respect to corporations, and Aboriginals.’

16 Counsel argue that the concept of alienage ‘is not susceptible of statutory definition, at least so as to enlarge the concept (and thereby impose a burdensome status on persons who otherwise would not have been so burdened)’. They say:

‘An alien is a person who does not owe allegiance to the Queen. At all material times, the applicant has owed allegiance to the Queen. He was in Australia permanently from 6 January 1982, and he was a British subject with [sic] the meaning of Australian law from that time.

The applicant was in Australia long before the "correct date" for the change in status (from privileged to not so privileged) of a subject of the Queen in Australia according to the minority justices in Shaw ... at [169] to [177] (per Callinan J, with McHugh and Kirby JJ agreeing). The applicant submits that the judgments of the minority justices should be applied to the present case.’

17 The applicant’s other argument, in relation to the applicability of the Act, is that, at the time of the Minister’s decision, the applicant was not a person affected by the immigration power because he had been absorbed into the Australian community. Counsel refer to Kirby J in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [304]; and Kirby and Callinan JJ in Shaw at [66] and [154] respectively.

(iii) The respondent’s argument

18 In their written submissions, counsel for the Minister disclaimed reliance on the immigration power. They supported the validity of s 501(2) of the Act, in its application to the applicant, by reference only to s 51(xix) of the Constitution (the naturalization and aliens power (‘the aliens power’)). Without making any concession about the matter, they did not dispute that the applicant’s father was an Australian citizen, both at the date of the applicant’s birth and the date of his arrival in Australia. But they argued this to be immaterial. In their contention, an alien is simply a person who is not a citizen of Australia. As it is common ground that the applicant is such a person, counsel say he is subject to the Act. Counsel cited an observation of Gaudron J in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at 189:

‘An alien (from the Latin alienus – belonging to another) is, in essence, a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined. For most purposes it is convenient to identify an alien by reference to the want or absence of the criterion which determines membership of that community. Thus, where membership of the community depends on citizenship, alien status corresponds with non-citizenship.’

19 Counsel noted a difference in opinion in Nolan, between Gaudron J and other members of the High Court, as to whether alienage extended to certain persons who had entered Australia as British subjects. That controversy, which is not presently relevant, was resolved in Shaw.

20 Counsel also cited authority for the proposition that, subject to some limitations, Parliament has power to determine which persons have the status of alienage: see Re Minister for Immigration and Multicultural Affairs: Ex parte Te [2002] HCA 48; (2002) 212 CLR 162 at [24] and [110] and Shaw at [2]. They said references in cases, such as Pochi v McPhee [1982] HCA 60; (1982) 151 CLR 101 at 109:

‘to "a [any] person who was born outside Australia, whose parents were not Australians, and who has not been naturalised as an Australian" provide a serviceable "general" definition, but do not purport to chart the outer limits of the power. They reflect the facts of the decided cases, which have all concerned persons born outside Australia to non-Australian parents.’

(iv) Singh

21 In their written submissions, counsel for the Minister predicted the then pending decision of the High Court in Singh v Commonwealth of Australia ‘will determine how s 51(xix) applies when the facts are varied to include birth in Australia to non-Australian parents’. They suggested a case of birth outside Australia to an Australian parent would not result in an outcome more favourable to an applicant than birth in Australia.

22 As it happened, the High Court delivered judgment in Singh on the same day as that which had been fixed for the hearing of this case: see [2004] HCA 43. Counsel for both parties became aware of the substance of the High Court’s decision during the course of the hearing in this Court. However, they sought and obtained leave to file supplementary written submissions, dealing with the application of Singh to the facts of this case.

23 It is convenient to reproduce the respondent’s summary of the decision in Singh:

‘The plaintiff in Singh was born in Australia and was the child of two Indian citizens, who were not Australian citizens or permanent residents. She was therefore excluded from the statutory status of Australian citizenship by s.10(2) of the Australian Citizenship Act 1948. It was understood that she was an Indian citizen by descent, under the law of that country. The Court (McHugh and Callinan JJ dissenting) gave an affirmative answer to a question asking whether the plaintiff was an "alien" within the meaning of s.51(xix) of the Constitution.

The majority judgments support the proposition ... that the power in s.51(xix) includes power to define and alter the criteria which determine whether a person has the necessary connection to the Australian body politic to make him or her a non-alien.

The majority judgments also emphasise that the central element of the concept of alienage was and continues to be allegiance to another country (or, where relevant, statelessness). Hence, the plaintiff (being an Indian citizen) was an "alien", or at least within the scope of the aliens power and capable of being designated as an "alien".’ (footnotes omitted)

24 I think this summary is accurate: see per Gleeson CJ at [4]-[5] and [30]; per Gummow, Hayne and Heydon JJ at [154] and [196]-[205]; and per Kirby J at [248]-[249] and [273].

25 Counsel for the respondent argued:

‘The Applicant accepts that he was and remains a citizen of Papua New Guinea by birth. On that basis (and with Australian statute law not having conferred on him membership of the body politic, in the form of citizenship), the majority reasoning in Singh dictates the conclusion that he is an "alien" for the purposes of s.51(xix).’

26 In their supplementary submissions, counsel for the applicant sought to distinguish Singh. They pointed out that Singh was concerned with a person born within Australia to non-Australian parents. They said:

‘Singh does not conclusively resolve the issue which arises in the present case, namely whether a child born overseas of an Australian citizen parent, who is entitled to citizenship by registration, is beyond the reach of the aliens power. Indeed, it would be strange if an Australian parent or parents, while overseas, had to return to Australia prior to the birth of their child and ensure that the child be born within the territorial limits of Australia, in order to avoid the child being liable to be dealt with as an alien. (It is no answer to this, from the constitutional perspective, that by statute Parliament has provided a facility for registration at an embassy, which is purely a matter of policy which could be revoked at any time).’

27 Counsel for the applicant said they must acknowledge:

‘that, in reaching the conclusion that a person born within the territorial limits of Australia was not beyond the reach of the aliens power, the majority relied upon the view that an alien was no more or less than a person who was a citizen or subject of another state, so that it was sufficient that the plaintiff in Singh was a citizen of India, despite having been born in Australia, to bring her within the constitutional meaning of the term "alien".’

28 Counsel said that approach, if applied to the present case, would result in the applicant, a citizen of PNG, falling within the scope of the aliens power. However, they noted the rejection in Singh of the argument that the meaning of the word ‘alien’ was, in effect, frozen at 1901 and that the High Court held that Parliament has scope to alter the basis upon which citizenship is conferred, and who will be dealt with as aliens. In that connection, they noted that, at the time of the applicant’s entry into Australia on 6 January 1982, he was a citizen of PNG but a person having the status of a ‘British subject’ pursuant to the AC Act; therefore, they said, he was not then an alien pursuant to that Act. Accepting that Parliament can from time to time determine who has the status of an alien, it was not enough that an amendment to the AC Act had merely removed the exclusion of persons who had the status of British subjects. They said:

‘Alienage is a burdensome status. Only words of the plainest intent could operate to deprive the Applicant of the fundamental rights and privileges of his "non-alien" status, and saddle him with the burdensome status of alienage, even if it is open to Parliament unilaterally to deprive him of that status, having first conferred it upon him.

There was nothing in the 1984 amendments, by reason of which he is supposed to have been deprived of his non-alien status, that could be said plainly to evince an intent that British subjects (including the Applicant) in Australia, who thitherto had by definition been "non-aliens", were thenceforth to be, and be liable to be treated as, aliens. The mere omission of a definition of "aliens" does not have the effect that those previously defined not to be aliens thereupon become aliens.’

(v) Conclusion

29 It is true, as the applicant’s counsel submit, that the facts of Singh differ from those of the present case. However, the case is relevant, and important, for two things. First, for its insistence that it is for Parliament, within presently immaterial limits, to determine which people have the status of being aliens. Secondly, because a majority of the High Court was prepared to accept that the word ‘alien’ is synonymous with ‘non-citizen’. On that basis, counsel for the Minister is correct in arguing that the appellant’s non-citizenship is fatal to his argument that he is not reached by the aliens power.

30 It is true that the 1984 amendment to the AC Act did not include a statement to the effect that those British subjects who had previously been excluded from the definition of alien were thereafter to be so regarded. However, in the absence of a relevant saving provision, that was the effect of that amendment.

31 Especially in the light of Singh, it must be concluded that the application of s 501(2) of the Act to the applicant is supported by s 51(xix) of the Constitution. The applicant’s first major submission fails.

The administrative law point
(i) Background

32 Counsel for the applicant read an affidavit made by Amanda Lee Cook. Ms Cook is apparently an Australian citizen. She described herself as the applicant’s fiancée and stated they have two children, a daughter born in 1999 and a son born in 2001. Counsel for the Minister accept that the former Minister was under an obligation to treat the best interests of those children as a primary consideration in making his decision as to revocation of the applicant’s visa. The reason for this concession is that such an obligation was mentioned in a Minister’s Direction that was sent to the applicant, in inviting his submissions prior to the decision being made.

33 The applicant contends that, in making his decision to revoke the applicant’s visa, the former Minister failed to take into account the best interests of these children. Counsel for the Minister dispute that statement.

34 The only evidence as to the reasons for the former Minister’s decision is the content of an Issues Paper prepared by Departmental officers on 18 October 2002 (‘the Issues Paper’). The former Minister apparently did not give the applicant a written notice setting out the reasons for his decision, as required by s 501G(1)(e). No statement of reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 has been tendered in evidence.

35 Several documents were annexed to the Issues Paper. They included a submission from the applicant received on 20 August 2002, in response to a notice inviting submissions as to the possibility of cancellation of his visa, and a letter from Ms Cook received by the Department on 29 August 2002.

36 The Issues Paper contains a section headed ‘The Best Interests of the Children’. In that section, it is noted that the applicant has two children and had stated in his submission that ‘these children would be affected by a decision under s 501(2)’. Under the sub-heading ‘the nature of the relationship between the child and the non-citizen’, the Departmental officers quoted statements in the applicant’s submission about the ages of his children, his fiancée bringing them to see him – presumably in prison – each weekend and his belief that it would be in the best interests of the children if he could have the opportunity to be a parent ‘and give them a loving and healthy start in life’.

37 Under a heading concerning the duration of the relationship between the non-citizen and the children, the authors of the Issues Paper stated that the applicant had not provided any information on this point. However, they quoted a statement in Ms Cook’s letter that the applicant ‘is a good family man, he is a great father who loves his children very much’ and also her statement ‘... our children, espeacially [sic] my daughter, thinks the world of him, they/we all share a very speacial [sic] bond, and we are a loving family’.

38 The Issues Paper noted the ages of the children and that they are Australian citizens. Under the heading ‘the likely effect that any separation from the non-citizen would have on the child’, the authors simply said: ‘Mr Taurino did not provide any information with which to address this point’.

39 After noting that there was no record of either child having departed Australia at any time, the Issues Paper considered the circumstances likely to apply if the children accompanied the applicant to PNG. The authors suggested it was open to the Minister ‘to find that the children may be adversely affected if they were to accompany their father if he were removed from Australia as the health and educational facilitates in Papua New Guinea may be of a lesser standard than that found in Australia’. (Emphasis added). The authors also noted that the children may be adversely affected by language and cultural barriers if they accompanied their father to PNG. The authors concluded it was open to the Minister ‘to find from the information given that the cancellation of Mr Taurino’s visa and his removal from Australia may have a detrimental effect on his children’. (Emphasis added)

(ii) The applicant’s argument

40 In their written submissions, counsel for the applicant argued:

‘The Minister was required first, to assess and identify what the best interests of the children required with respect to the exercise of his 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 ... unless the Minister warned the Applicant that he intended to do otherwise.’

41 Counsel cited four authorities: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568, 107 FCR 133 (‘Wan’), Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 218 (‘Long’), Nguyen v Minister for Immigration and Multicultural Affairs [2004] FCA 757 (‘Nguyen’) and Powell v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 717 (‘Powell’). However, it is desirable for me to refer first to an earlier Full Court decision Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 26 AAR 227; 150 ALR 607 (‘Vaitaki’).

42 Vaitaiki concerned a decision by the Administrative Appeals Tribunal (‘the AAT’) to uphold a deportation order made against a Tongan national who had six Australian-citizen children residing in Australia. By majority (Burchett and Branson JJ; Whitlam J dissenting) the Court set aside the AAT’s decision on the ground that it had failed to take the best interests of the children into account, as very significant matters, in accordance with the principle enunciated by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (‘Teoh’).

43 It is not necessary for me to set out the criticisms of the AAT’s decision in Vaitaiki that were made by Burchett J (with whom Branson J relevantly agreed). However, it is desirable to note a comment by Burchett J (at 236; 618) as follows:

‘I am compelled to conclude that, not only were the children´s best interests not made a primary consideration; they were not given adequate consideration at all. They were not treated as a factor of great significance in the decision whether the appellant should be deported. That they were not is highlighted by the way ... when reaching his conclusion, the deputy president treats the question, not as what the best interests of the children require him to decide with respect to the proposed deportation of the appellant, but what each set of children should do, given that their father would be deported. This, of course, was not a matter over which he had any jurisdiction in respect of Australian citizens.’ (Original emphasis)

44 At 249; 630 Branson J accepted ‘that the reasons for decision of the AAT, read as a whole, are to be understood on the basis that the AAT did purport to act in accordance with the Convention’. However, her Honour went on:

‘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.

45 Wan was a decision of a Full Court comprising Branson, North and Stone JJ. The case concerned a decision of the AAT to refuse a permanent visa to the father of two Australian citizen children, aged eight years and 20 months. The Full Court held that the AAT’s decision was invalid because it failed ‘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’: see para 26. The AAT in this case was constituted by the same person as in Vaitaiki.

46 At para 26 of its reasons for decision, the Wan Full Court criticised the paucity of the AAT’s reasons for decision, insofar as they related to the interests of the children. The Court said:

‘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.’

47 The Court went on, at para 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.’

48 The Wan Full Court observed that the AAT had 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 (their mother remaining in Australia) and, secondly, that they would remain in Australia with their mother. In relation to the first possibility, at para 30 their Honours noted the AAT’s lack of consideration (amongst other things) of the circumstances that the children, Australian citizens, ‘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 232; 614)’. In relation to the possibility of the children remaining in Australia, the Court said the AAT:

‘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 250-251; 631).’

49 Nguyen was a decision of Lee J concerning the former Minister’s cancellation of a visa held by a Vietnam national who was married to an Australian citizen and the father of two Australian citizen children. As in the present case, the only material bearing on the former Minister’s reasons for decision was what might be inferred from the contents of an ‘Issues Paper’ prepared for his guidance by Department officers. Although the Issues Paper suggested that a decision to cancel the applicant’s visa and to remove him from Australia would have a detrimental effect on the children, Lee J held the Minister’s decision was invalid.

50 At para 53, Lee J said:

‘The Minister could not assume that the applicant’s wife would depart the country of nationality of herself and the children and relocate herself and the children in Vietnam. As the wife’s letters to the Minister’s Department implied, a decision to cancel the visa held by the applicant would present her with unpalatable options, none of which would mitigate the impact of that decision on the children. One of those options would be to remain in Australia with the children. Before the Minister could make the ultimate determination of what decision would best serve the interests of Australia and its citizens, the Minister, in giving primary consideration to the best interests of the children, had to consider the possible impact upon the children of the range of events that may follow if the applicant’s visa were cancelled.’

51 After referring to some facts peculiar to that case, at para 55 Lee J made a comment which, the applicant claims, has relevance to the present case:

‘Insofar as the Issues Paper informed the Minister that it was "open" to the Minister to find that a decision to cancel the visa held by the applicant would have a detrimental effect upon the children, it may have distracted the Minister from the actual task before him at law, namely, to give primary consideration to what was in the best interests of the children. It may be assumed in the present case that the only conclusion the Minister could have reached in respect of the best interests of the children was that such interests would be met by the Minister deciding not to cancel the visa held the by [sic] applicant. That had to be the "starting point" in the Minister’s treatment of the interests of the children as a primary consideration ... If the Minister determined as a primary consideration that the best interests of the children would be served by the Minister declining to cancel the visa held by the applicant, the Minister would then have to determine, and identify, what consideration, or considerations, were of sufficient weight or importance to supersede the best interests of the children.’

52 Powell also concerned a decision by the former Minister to cancel a visa under s 501 of the Act. The applicant was the mother of two children, aged three and two years respectively. The only evidence of the former Minister’s reasons was the material set out in the Issues Paper prepared for his consideration by officers of his Department. At para 23, Carr J said:

‘Once it is known that the decision was to cancel the visa, the reasons thus emerge from the Issues Document itself. That is what the applicant would reasonably have understood when given notice of the decision accompanied by the Issues Document. That is also what the respondent’s Department intended her to understand when it forwarded that document to her and described it as setting out the reasons for the decision. It is not necessary for me to decide whether the Issues Document complied with the technical requirements of s 501G(1).’

53 The applicant’s argument on the administrative law issue may be summarised as follows:

(i)	it was the duty of the former Minister to determine what the best interests of the children indicated should be decided with respect to the applicant’s visa: Wan at paras 26 and 28;
(ii)	in the absence of contrary evidence, either in the form of a statement of reasons under s 501G(1)(e) of the Act or of affidavit or oral evidence from the former Minister, it may be inferred that the decision to cancel the applicant’s visa was based on the matters set out in the Issues Paper: Long at paras 45, 51 and 52 and Nguyen at para 56;
(iii)	the Issues Paper made no statement as to what the best interests of the children indicated should be decided. In the absence of evidence to the contrary, it ought to be inferred that the former Minister reached no conclusion about that subject;
(iv)	even considering the Issues Paper as a statement of considerations relevant to the best interests of the children, it was defective in that:

(a) it paid scant attention ‘to the fate of the children given the most likely scenario, that they would remain in Australia’;
(b) it made no reference to the effect upon the children, if they accompanied their father to PNG, of the loss of the benefit of being able to reside in their country of nationality.

(iii) The respondent’s submissions

54 In their written submissions, counsel for the respondent accepted that the Issues Paper was not a statement of the former Minister’s reasons for the purposes of s 501G(1)(e) of the Act. However, they argued:

‘That document clearly is evidence of what was placed before the former Minister, what issues were drawn to his attention and, hence, some evidence of what he took into account. It is relevant and admissible as evidence of what issues figured in the Minister’s reasoning process.’

55 In responding to the applicant’s criticism of the lack of any conclusion about the decision indicated by consideration of the best interest of the children, counsel said:

‘the Minute was clearly an issues paper and not a draft statement of reasons. It did not make recommendations, suggest conclusions or give any particular weight to the issues discussed. It made clear to the Minister, in the introductory remarks on the exercise of his discretion, that his task involved "balancing the relevant factors" and that it was for the Minister to decide what weight should be given to each factor. That observation, together with the reference to the Convention, made it clear that the task for the Minister would involve considering where the best interests of the children lay and whether other factors outweighed those interests.’

56 In relation to the attention given to the ‘most likely scenario’ – that the children would remain in Australia – counsel said:

‘[T]he author of the issues paper was reporting to the Minister on the material that had been obtained in connection with the possible cancellation of the Applicant’s visa. The primary source of such information was the Applicant. The author noted that one of the important issues was "the likely effect that any separation from the non-citizen would have on the child", and reported that the Applicant had not provided any information on that point. That, of course, did not prevent the Minister from considering the point, and it cannot be inferred that the Minister did not consider it. [Footnotes omitted]

...

If the admissible evidence of the Minister’s reasoning process is limited to the Minute, it does not support a conclusion that the Minister failed to have regard to the children’s interest in the manner required by the Convention.’

(iv) Conclusions

57 On this second major issue, I accept the submissions of counsel for the applicant.

58 The authorities cited by counsel for the applicant dictate that the Issues Paper be treated as evidencing the reasoning process adopted by the former Minister. It would be inconsistent with the quoted statements in those authorities for me to accept the respondent’s submission that it is open to the Court to assume the former Minister gave consideration to, or reached conclusions about, matters not discussed in the Issues Paper. It follows that I should infer that the Minister failed to take the step, required by Vaitaiki and Wan, of determining what the best interests of the children indicated to be the decision appropriate to be made in relation to cancellation of the applicant’s visa.

59 There are cases in which it is possible, from its content, to read an Issues Paper which the Minister is taken to have adopted as implying the conclusion that removal of the affected person would not be in the best interests of the child, even though there is no express statement to that effect. For a recent example, see Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13. However, it seems to me impossible to read the present Issues Paper in that way. Unlike in Lorenzo, the Issues Paper failed to reach a firm conclusion even about detriment.

60 The applicant’s other point is also well taken. The Issues Paper was silent about the consequences for the children of the applicant being forced to leave Australia, with the children staying in Australia with their mother. Under the heading ‘the likely effect that any separation from the non-citizen would have on the child’, the Issues Paper simply said the applicant ‘did not provide any information with which to address this point’. No mention was made of the children’s loss of the company, support and guidance of their father; still less was there any attempt to assess the significance to the children of that loss.

Disposition

61 In my opinion, the applicant is entitled to succeed on the administrative law point taken by him. The decision of the former Minister to cancel the applicant’s visa should be quashed and an order made restraining the Minister and every person who is an ‘officer’, within the meaning of the Act, from deporting or removing the applicant from Australia in reliance upon that decision. The respondent must pay the applicant’s costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 25 February 2005

Counsel for the Applicant:	Mr P Brereton SC, Mr M A Robinson and Mr C Jackson
Solicitor for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	Mr D J M Bennett QC and Mr G R Kennett
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 September 2004
Date of Judgment:	25 February 2005