Aporo v Minister for Immigration & Citizenship [2008] FCA 102 (11 February 2008)

MITA APORO v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR
NSD 2090 OF 2007

RARES J
11 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2090 OF 2007

BETWEEN:	MITA APORO Applicant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	11 FEBRUARY 2008
WHERE MADE:	SYDNEY

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 2090 OF 2007

BETWEEN:	MITA APORO Applicant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	RARES J
DATE:	11 FEBRUARY 2008
PLACE:	SYDNEY

1 Mr Aporo seeks constitutional writ relief against the decision of the tribunal to affirm the cancellation by a delegate of the Minister of his transitional special category visa (subclass TY444) pursuant to s 501(2) of the Migration Act 1958 (Cth). The Court has jurisdiction to decide the matter under s 39B of the Judiciary Act 1903 (Cth) and s 476A(1) of the Migration Act. The principal question presented by this application is whether the Administrative Appeals Tribunal failed to take into account, actually or constructively, the nature of the relationship between Mita Aporo and his nephew and nieces who were the children of his (half) brother. In the evidence before the tribunal were statutory declarations by both Mr Aporo’s brother and their mother (the nephew and nieces’ grandmother). Those demonstrated a close and loving relationship between Mr Aporo and the nephew and nieces.

2 There are also subsidiary questions including whether the tribunal also erred in failing to identify and take into account the best interests of Mr Aporo’s daughter.

3 These questions arise in circumstances where Mr Aporo had a long criminal history. He had been incarcerated for considerable periods. That criminal history was primarily connected to his drug addiction and his antisocial behaviour as a result of either the drugs themselves or his desire to procure money to support his habit.

4 It is common ground that Mr Aporo did not pass the character test by reason of his incarcerations. That test is prescribed in s 501 of the Act. In those circumstances the Minister had power to exercise the discretion to cancel Mr Aporo’s visa.

5 For the purposes of the exercise of the discretion, s 499 of the Act provides that the Minister may issue a direction as to relevant considerations to be taken into account by a decision-maker. The Minister made Direction No 21, ‘Visa refusal and cancellation under s 501’. In par 2.3, it directed the tribunal, as the decision-maker, to have regard to three primary considerations. Only the third is relevant here, namely:

6 The direction required decision-makers to have regard to the importance placed by the government on the three primary considerations, but also to adopt a balancing process which took into account all relevant considerations (par 2.2). The prescribed relevant considerations concerning the best interests of a child were set out in pars 2.13-2.16 of the direction. In particular par 2.16(a) required a decision-maker to have regard to the nature of the relationship between the child and non-citizen when considering the child’s best interests.

7 Additionally, the direction identified other considerations in par 2.17 as relevant, but not primary. These included the extent of disruption to the non-citizen’s family (par 2.17(a)), the degree of hardship which would be caused to immediate family members lawfully resident in Australia and the nature of the relationship between the non-citizen and the immediate family members (par 2.17(c)) and the family composition of the non-citizen’s family (par 2.17(d)).

8 No doubt cognisant of the decision in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, the direction specifically required decision-makers to consider international obligations under a number of conventions to which Australia is a State party. However, those conventions did not include a convention on which Mr Aporo relied before the tribunal, namely the Convention on the Rights of the Child. It provided in Article 3(1) that:

9 The tribunal conducted a hearing at which Mr Aporo gave oral evidence. In his examination-in-chief Mr Aporo was asked about his relatives here and in New Zealand (where he had been born and had mainly lived until he was in his mid-teens). He said that his younger (half) brother, nieces and nephew lived here. He said his brother had three children. He said that he was very close to his younger brother. Next he was asked only about the names of the three children before the subject-matter of questioning changed. No other evidence concerning the relationship Mr Aporo had with his nephew and nieces was led from him. He was not cross-examined about that topic.

10 The tribunal had before it statutory declarations by Mr Aporo’s mother, brother and former de facto (who was the mother of his daughter). Mr Aporo’s mother said that he had always been a supportive uncle to his nephew and nieces, that he was ‘great with them and my grandchildren love him dearly’. She said that he saw his nephew and nieces at least fortnightly and that they were always happy to see him. She said that he always had strong ties with her, his brother, nephew and nieces, and that he loved his daughter very much.

11 Mr Aporo’s brother said that since the birth of his first child in 1999, Mr Aporo had shown compassion and love to all of his children. Despite his background, Mr Aporo was held in high regard by his nephew, nieces and family generally, and that he had always tried to model ‘right behaviour’ in their presence. The brother said that the times Mr Aporo had spent with his family, especially his children, had been valued because of the love and affection he had displayed; and that the family’s position should be considered by the addressee of the statutory declaration in order to allow him to remain with the family who loved him and supported him unconditionally. Mr Aporo’s brother said that he would like his children to know their uncle, and for their uncle to be there and provide the love and support they deserved from him. He said that his children loved their uncle very much and were delighted to see him whenever he would visit, which was, at his best efforts, fortnightly.

12 The mother of Mr Aporo’s daughter said that she acknowledged that in the long-term it was in the daughter’s best interest to know her real father and to form a meaningful bond and relationship with him. There was some evidence before the tribunal as to the circumstances in which Mr Aporo had conducted his relationship with his daughter. That relationship had only developed in the last two or three years before the hearing, and then in circumstances in which Mr Aporo had been incarcerated or in detention for most of that period.

13 During the course of final address before the tribunal, Mr Aporo’s representative referred to the relationship between Mr Aporo’s daughter and her father, and to the Convention on the Rights of the Child but only in relation to Mr Aporo and his daughter. The Minister’s representative accepted in final address before the tribunal that the interests of the child were always served if both the child’s parents remained with the child, but said that if Mr Aporo were removed that would have the effect of maintaining the status quo.

14 In its decision and reasons for decision the tribunal referred to the fact that Mr Aporo had described his various family members in Australia and the close relationships he had with these members, including his 10 year old daughter. It noted that he had given slightly confusing, and at times contradictory, evidence about the nature of his relationship with his daughter.

15 The tribunal also referred to the three statutory declarations which I have mentioned. In particular, the tribunal referred to Mr Aporo’s brother’s statutory declaration as stating his ‘love and affection for his nieces and nephew whom he sees fortnightly’.

16 The tribunal also had before it a report of Dr Gary Banks, a consultant clinical psychologist. That report had been prepared for the hearing, although Dr Banks was not able to give oral evidence. Dr Banks’s report referred to the effect that a cancellation of Mr Aporo’s visa might have on his relationship with his daughter. And the tribunal, having recited parts of the report that it considered to be relevant, noted that it would examine in more detail those issues when looking at the best interests of the child and other considerations.

17 The tribunal accepted that the family was a supportive family unit, although it noted that their presence to date had had little impact on Mr Aporo’s offending behaviour. The tribunal placed very considerable weight on the importance of the protection of the Australian community from Mr Aporo, having regard to his extensive criminal history. He accepted that that was a relevant consideration for the tribunal to which it could give weight.

18 Under the heading: ‘The best interests of the child’, the tribunal’s reasons considered only the best interests of Mr Aporo’s daughter. The Minister accepted that there was no separate consideration by the tribunal of whether Mr Aporo’s relationship with his nephew and nieces came within the terms of par 2.3(c) of the direction, namely whether it was a ‘close relationship’. However, in that part of its reasons the tribunal identified Mr Aporo’s contention that it was in the best interests of his 10 year old child if he were to remain in Australia and then continued: ‘He also has an ongoing relationship with his nieces and [nephew] under the age of 18’.

19 Significantly, the tribunal did not elaborate, as a primary consideration, on anything else to do with the latter relationship. It did, however, say under the heading: ‘Other considerations’, that the contention of hardship that would be faced by his nieces and nephew if he were removed from Australia was one which it did not accept. It noted that they, together with his other family members, had apparently managed during his frequent and lengthy incarcerations.

21 In my opinion, that reasoning acknowledged that the tribunal had not had regard, as a primary consideration, to the question of whether the nephew and nieces’ best interests would be affected by a decision to cancel his visa. This is confirmed in the tribunal’s summary of its decision. There it stated:

22 The Minister argued that the tribunal was not required to consider the position of the nephew and nieces as a primary consideration because Mr Aporo had not put forward a clearly articulated argument to that effect; and there was no need to inform him that it was not going to have regard to those matters as a primary consideration. The Minister contended that this was not a case where the tribunal had failed to make a finding on a substantial, clearly articulated argument relying upon established facts so as to amount to either a failure to accord procedural fairness or a constructive failure to exercise jurisdiction: see NABE v Minister for Immigration [2004] FCAFC 263; (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.

23 In that case the decision was made in the context of the inquisitorial functions of the Refugee Review Tribunal, unlike here where the proceedings before the tribunal were adversarial. As the Minister pointed out, it is more difficult to find a jurisdictional error by a decision-maker of failure to address a claim where its procedure is adversarial. In such cases an applicant can be expected to articulate his or her own case, the moreso where the applicant is represented.

24 Nonetheless, in this case the tribunal was clearly apprised of the evidence from Mr Aporo’s mother and brother of the relationship he had with his nephew and nieces. It referred to that relationship and the evidence to support it in the course of its reasons, but it did not consider whether or not that evidence gave rise to a need to consider the primary consideration of those children’s best interests. The real question for decision is whether, in the context which I have described, the tribunal needed to do so.

25 One reason why the best interests of children are a primary consideration in making decisions which may impact upon those children is that the child or children would, in the ordinary course, not be able to articulate for themselves their own best interests in the circumstances. Adults who have a relationship with children are not always the best placed to articulate what the child or children’s best interests are.

26 That is why decision-makers at common law, under the direction and in circumstances involving any international conventions, must have regard to the best interests of the child or children affected or potentially affected by a decision, as a primary consideration, for the reasons given in Teoh [1995] HCA 20; 183 CLR 273. Here, of course, par 2.3(c) of the direction required the tribunal to have regard to the primary interests of the relevant child or children.

27 In Wan v Minister for Immigration [2001] FCA 568; (2001) 107 FCR 133 at 140 [26] Branson, North and Stone JJ said (and see too at 142 [32]):

28 The Minister accepted that because the tribunal did not ask itself that question, it had not articulated any reasoning concerning the best interests of the nephew and nieces. But, he contended that there was no need to do so because no such case was put forward by Mr Aporo.

29 I am of opinion that it was clearly articulated on the material before the tribunal that the nephew and nieces had a relationship which was capable of being described as close within the meaning of par 2.3(c), depending upon the view the decision-maker took of that relationship. Here, the tribunal never asked itself the question whether, in fact, that relationship was a close one. I appreciate that it proceeded in circumstances where Mr Aporo, himself, was not asked in-chief about the detail of that relationship. But, the tribunal was clearly informed that the relationship was an important one and there was evidence suggesting that it was close given by the mother and brother in their statutory declarations. Moreover, the tribunal had regard to Dr Banks’s report which stated:

30 In the circumstances, I am of opinion that the tribunal did not consider a matter which par 2.3(c) required it to, namely whether there was any close relationship between Mr Aporo and his nephew and nieces. On the evidence it may have been open to the tribunal to come to a view one way or the other on this question. It is not the function of the court to determine the merits of such an argument, rather it is for the court to ensure that the procedures required by law are followed. The principles of procedural fairness focus on procedures rather than outcomes. They focus on what a decision-maker must do in the course of deciding how a particular power must be exercised: Appellant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 96 [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.

31 If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances to make an erroneous finding or reach a mistaken conclusion, and that affects the exercise or purported exercise of the tribunal’s power, it exceeds its authorities or power under the law. That is a jurisdictional error which invalidates any order or decision of the tribunal which reflects it: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Such a decision is regarded, in law, as no decision at all: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

32 The classic statement of when a decision-maker fails constructively to exercise its jurisdiction was given by Jordan CJ in Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420: see also Re Media Entertainment and Arts Alliance; Ex parte Arnel [1994] HCA 1; (1994) 179 CLR 84 at 94 per Mason CJ, Brennan, Dawson and Gaudron JJ; Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 208-209 [31] per Gleeson CJ, Gaudron and Hayne JJ; and 227-229 [82]-[85] per Kirby J. Jordan CJ said:

33 It is important that decision-makers direct themselves to relevant questions concerning the best interests of children even in adversarial proceedings particularly where the children concerned cannot speak for themselves or make submissions to the tribunal. Here the children were all under the age of 10. If there were a close relationship, then their best interests had to be taken into account as a primary consideration by the tribunal. The tribunal failed to ask itself the question whether Mr Aporo had such a close relationship on the evidence which it had recited and which was clearly articulated in the statutory declarations of the grandmother and father of those children.

34 Whether or not it would have come to the conclusion that there was a close relationship is not to the point. The tribunal did not embark upon the inquiry which the direction and, thus, the Act, required it to undertake, namely to have regard to that question and answer it before proceeding to affirm the cancellation of Mr Aporo’s visa.

35 I am mindful that there were very substantial discretionary factors which may be called in aid to support the tribunal’s reasoning and ultimate conclusion that the primary considerations of community protection and expectations outweigh the best interests of Mr Aporo’s daughter and, perhaps, his nephew and nieces. But, in my opinion, unless the tribunal first inquired into the matters which it was required by law to inquire into, it could not arrive at a result unfavourable to Mr Aporo in accordance with law.

36 For the reasons that I have given, I am of opinion that the tribunal constructively failed to exercise its jurisdiction by failing to inquire into and ask itself the question whether the relationship between Mr Aporo and his nephew and nieces fell within the meaning of ‘close relationship’ in par 2.3(c) of the direction.

37 I should also express my views, although they are not necessary to my decision, on the other substantive issues which were argued. First, Mr Aporo argued that even if the best interests of his nephew and nieces were not primary considerations, nonetheless their interests ought to have been considered in accordance with par 2.2 of the direction. The tribunal did have regard to that issue, although briefly. It said that it did not accept Mr Aporo’s contention that his nephew and nieces would face considerable hardship if he were removed because they had apparently managed during his frequent and lengthy incarcerations. Whether all decision-makers would necessarily take such a view is not a question for me. I do not consider that a jurisdictional error would be established on the basis of that argument.

38 Secondly, Mr Aporo argued that the tribunal never identified what the best interests of his daughter were for the purposes of then considering the exercise of its discretion in relation to the question it had to address under par 2.1(c). I think there is some force in this criticism. In Wan 107 FCR at 140 [26], 142 [32], the Full Court held that it was necessary for the decision-maker to identify what the best interests of the children were. Indeed, the tribunal referred to this legal obligation in its own reasons. And it also referred expressly to par 2.16 of the directions as setting out considerations that the decision-maker had to take into account.

39 The tribunal referred in its reasoning to Mr Aporo’s contention, which I have set out above, that it was in the best interests of his 10 year old daughter that he remain in Australia. It also described his evidence about his relationship as being unclear, and observed that one reason for the infrequency of Mr Aporo’s visits to his daughter was his many incarcerations. It also referred to evidence concerning the daughter’s knowledge of Mr Aporo and the circumstances in which he had seen her or they had had contact. It referred to the evidence of the mother that it would be in the daughter’s best interests for Mr Aporo to remain in Australia. Then the tribunal referred to a submission that the daughter had a right to know who her father was. It said that that was a very conservative aspiration which was undoubtedly correct, but that there was no impediment presented by Mr Aporo being geographically removed because he could maintain contact with her by modern communication. The tribunal then said that: ‘I would think it possible for her to visit him in New Zealand if she so desired’.

40 In my view, that reasoning does not seem to have regard to identifying what the best interests of the child were. That was the task of the tribunal: Wan 107 FCR at 140 [26], 142 [32]. The tribunal appears to have referred to submissions about this issue as opposed to itself identifying, as a primary consideration, what the child’s best interests were. Of course, it was necessary for the tribunal to have regard as well to the submissions that were made but that did not relieve the tribunal of the need to identify the child’s best interests as an impartial decision-maker. The decision-maker must consider, as a primary consideration, the child’s best interests in the context of the impact that the decision may have on the child as opposed to the impact that it may have on the parties. I must say that the suggestion that a 10 year old child could decide for herself whether to visit her father in another country seems to me to be one that no reasonable decision-maker could have made, but that point was not argued and I need say nothing further about it.

41 The tribunal also referred to a submission that Mr Aporo had a right to be here for his daughter and to provide her with the love and guidance that she deserved. It dismissed that submission on the basis that he had not exercised access rights given to him in the past. Again, that did not address the issue of what his daughter’s best interests were.

42 The tribunal was entitled reflect upon whether or not Mr Aporo would avail himself of those rights. But the first question was what were in the child’s best interests. Only when they had been identified could the tribunal determine, in the exercise of its discretion, how to weigh those best interests as a primary consideration, with the other two primary considerations and all other relevant considerations, in arriving at the ultimate decision as to how to exercise its discretion.

43 In my opinion, there was force in some of the criticisms made by Mr Aporo of the way in which the tribunal assessed the best interests of his daughter.

44 I am of opinion that the tribunal made a jurisdictional error in failing to have regard to whether or not the nephew and nieces were in a ‘close relationship’ for the purposes of par 2.3(c) of the direction. Mr Aporo is entitled to relief.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Solicitor appearing for the Applicant:	R Turner

Solicitor for the Applicant:	Parish Patience

Counsel for the Respondent:	J Smith

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	11 February 2008

Date of Judgment:	11 February 2008

Federal Court of Australia

Aporo v Minister for Immigration & Citizenship [2008] FCA 102 (11 February 2008)