Wan v. Minister for Immigration & Multicultural Affairs

Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 (18 May 2001)

Last Updated: 25 May 2001

FEDERAL COURT OF AUSTRALIA

[2001] FCA 568

LEI WAN

v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

EXPLANATORY STATEMENT

1 The judges in this case (Justices Branson, North and Stone) have prepared this statement to assist understanding of the decision of the Court in this appeal. It is intended to explain the function of the Court in a case involving the review of a decision of the Administrative Appeals Tribunal. It must be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment.

2 This appeal relates to an application by Mr Wan for a visa to stay in Australia. His application was considered by a delegate of the Minister for Immigration and Multicultural Affairs. The delegate found that Mr Wan is not of good character. This finding meant that the delegate had a discretion to grant or to refuse to grant a visa to Mr Wan. The delegate refused to grant a visa to Mr Wan. The decision of the delegate was reviewed by the Administrative Appeals Tribunal and the decision confirmed.

3 In the circumstances of this case, the law required the Tribunal, in determining whether to confirm the refusal to grant a visa to Mr Wan, to treat the best interests of any child affected by its decision as a primary consideration.

4 Mr Wan has two children, one aged 8 and the other aged 20 months. Both children are Australian citizens.

5 The Full Court has concluded that the Tribunal failed to treat the best interests of Mr Wan's children as a primary consideration. It follows that Mr Wan is entitled to have the decision of the delegate reviewed again on a proper basis.

6 This does not mean that if the Tribunal decides it would be in the best interests of the children for Mr Wan to be granted a visa, that the Tribunal must grant that visa. It does mean, however, that the Tribunal would only be entitled to refuse to grant the visa if it finds that other relevant considerations outweigh the best interests of the children.

7 The role of the Court in a case like this is to ensure that the Tribunal acts in accordance with the law. As the Tribunal did not treat the best interests of the children as a primary consideration as it was required by law to do, the decision of the Tribunal must be set aside. However, it is for the Tribunal, not the Court, to determine what decision would be in the best interests of the children and, if that decision is that Mr Wan be granted a visa, whether other relevant considerations are of such weight that, nevertheless, Mr Wan should not be granted a visa.

8 The Reasons for Judgment of the Court will be available to the parties at the time judgment is delivered and will be available to the public generally shortly afterwards via the Federal Court's homepage at www.fedcourt.gov.au.

Federal Court of Australia

Sydney

18 May 2001

FEDERAL COURT OF AUSTRALIA

Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568

MIGRATION - visa applicant found not to be of good character - discretion to refuse to grant visa - whether proper consideration given by Administrative Appeals Tribunal to the best interests of the applicant's children in reviewing the decision to refuse visa - requirement that the best interests of the children be a primary consideration - nature of "a primary consideration" - need to make finding as to the decision that would be in the best interests of the children - requirement for proper, genuine and realistic consideration of interests of the children

Migration Act 1958 (Cth) ss 499, 501

Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B)

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, followed

Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608, applied

LEI WAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1369 of 2000

BRANSON, NORTH and STONE JJ

SYDNEY

18 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1369 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LEI WAN

APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:

BRANSON, NORTH and STONE JJ

DATE OF ORDER:

18 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed and the orders made at first instance be set aside.

2. In lieu of the orders set aside, the decision of the Administrative Appeals Tribunal made on 10 August 2000 be set aside; the respondent Minister pay the appellant's costs of the application; and the matter be remitted to the Tribunal differently constituted to be heard and determined again.

3. The respondent Minister pay the appellant's costs of the appeal.

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

N 1369 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LEI WAN

APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:

BRANSON, NORTH and STONE JJ

DATE:

18 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

1 The appellant ("Mr Wan") is married to an Australian citizen. He and his wife have two children, one aged 8 years and the other aged 20 months. Both of the children are Australian citizens.

2 On 13 June 1995 Mr Wan applied for a permanent residence (general-spouse) visa. On 6 May 1999 a delegate of the respondent ("the Minister"), being satisfied that Mr Wan was a person who was not of good character, decided to refuse to grant Mr Wan the visa for which he had applied.

3 On 24 May 1999 Mr Wan applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision of the Minister's delegate. On 10 August 2000 the Tribunal, constituted by Deputy President McMahon, affirmed the decision of the Minister's delegate.

4 By a notice of appeal dated 23 August 2000 Mr Wan appealed to this Court from the decision of the Tribunal. The notice of appeal included a number of grounds of appeal but only one of the grounds of appeal is of present relevance. That ground is that the Tribunal did not give consideration to the best interests of Mr Wan's children. The significance of this ground of appeal is considered below.

5 The learned primary judge who heard and determined Mr Wan's appeal from the decision of the Tribunal considered that "a fair inference can be drawn that the Tribunal did, in fact, intend to treat the best interests of any relevant children as a primary consideration". By order dated 4 December 2000 his Honour dismissed Mr Wan's appeal.

6 Mr Wan has appealed to this Court from the judgment of the learned primary judge. The only ground of appeal is that:

"His Honour erred in determining, on the evidence before his Honour, that the decision of a member of the Administrative Appeals Tribunal gave proper consideration to the `best interests of the ... children' in the exercise of the discretion not to grant the appellant's visa."

7 In our view, Mr Wan's appeal must be allowed and the matter remitted to the Tribunal to be heard and determined again. This does not mean that we consider that Mr Wan should be granted a visa. It is not for this Court to determine whether Mr Wan should or should not be granted a visa. However, this Court does have jurisdiction, on an appeal from the Tribunal, to set aside a decision made by the Tribunal if the decision followed a hearing at which the appellant to this Court was denied procedural fairness. We have reached the decision that the appellant was denied procedural fairness before the Tribunal and is for this reason entitled to a fresh hearing.

STATUTORY PROVISIONS

8 Section 501 of the Migration Act 1958 (Cth) ("the Act") provides for the refusal or cancellation of a visa on character grounds. At the time relevant to Mr Wan's application for permanent residence (general-spouse) visa, s 501 provided:

"(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 ...."

9 Section 499(1) of the Act, at the time relevant to Mr Wan's application, provided:

"A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing."

10 Sections 499 and 501 of the Act were substantially amended on 1 June 1999 upon the coming into operation of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth). However, the amended provisions have no relevance to Mr Wan's appeal.

THE RELEVANCE OF THE CHILDREN'S BEST INTERESTS

11 Australia ratified the United Nations Convention on the Rights of the Child ("the Convention") on 17 December 1990 and the Convention entered into force for Australia on 16 January 1991. Article 3 of the Convention relevantly provides:

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

12 In Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291-292 ("Teoh") Mason CJ and Deane J, in giving consideration to the Convention, observed:

"... ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of children as `a primary consideration'. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.

... 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. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated." (citations omitted)

13 In Teoh Toohey and Gaudron JJ, in separate judgments, also concluded that, in the circumstances of that case which it is conceded were not relevantly different from the present case, procedural fairness required that, if the delegate were considering proceeding on a basis other than that the best interests of the children to be affected by the decision were "a primary consideration", she should have so informed Mr Teoh and given him an opportunity to persuade her not to take that course.

14 McHugh J, the only other justice to sit on Teoh, published a dissenting judgment.

15 The Minister did not contend before the primary judge, or before this Court, that the Tribunal took any step to give notice that it proposed to make a decision which did not accord with the principle that the best interests of Mr Wan's children were "a primary consideration" in its decision making process. That being so, Mr Wan will have been denied procedural fairness by the Tribunal unless, in fact, the Tribunal did act on the basis that the best interests of Mr Wan's children were "a primary consideration".

REASONS OF THE TRIBUNAL

16 The Tribunal noted that Mr and Mrs Wan presently live in Sydney, that Mrs Wan's parents live with them, and that Mr Wan runs a Chinese restaurant in a northern Sydney suburb. It further noted that their elder child has been accepted as a student at a well-known private school in Sydney, and that it is intended that the younger child also be educated in Australia.

17 The Tribunal made a finding, which has not been challenged, that Mr Wan is not of good character. It then turned to give consideration to factors relevant to whether the discretionary power contained in s 501 of the Act to refuse to grant a visa to Mr Wan ought to have been exercised. The Tribunal's consideration of these factors is set out in the following paragraphs of its written reasons for decision:

"32. There is a residual discretion vested in the Minister notwithstanding my finding that the applicant is not of good character. The relevant general direction deals with discretionary matters only briefly. There is no reason why considerations other than those set out in the direction ought not to be taken into account in determining whether the discretion ought to be exercised in the applicant's favour.

33. A consideration previously recognised in the Migration Instruction Series and now recognised in the current Ministerial Direction is the best interests of any relevant children.

34. So far as [the elder child] is concerned, it may be noted that she spent almost the first three years of her life in China, away from her mother. A future life in China, should she accompany her father back to that country, would be easier for her than a child of a different ethnic background born in Australia. [The younger child], of course, is only 10 months old and is too young to have culturally identified with Australia. If Mr Wan returns to China leaving behind his wife and children, Mrs Wan would undoubtedly suffer hardship. There would be no impediment, however, to her visiting China and returning from time to time as she has done on at least six occasions in the last few years. She is an Australian citizen and is free to travel between both countries. There might be some residual hardship to her parents, who live with her, and there might be some financial hardship if the Chinese restaurant were obliged to close. None of these subsidiary matters, however, outweigh the strength of community expectations to which I have referred.

35. Furthermore, Mrs Wan has been aware for many years of Mr Wan's activities which have led to the current decision. When she first met him he was an illegal entrant. By the time they married he had been charged with criminal offences. Their life was shared in Club 77. She is at least as responsible as he is for the immigration misconduct that took place with their employees.

36. Against these general aspects of hardship, there are public interest considerations. It would be totally unacceptable to the community that any person should be rewarded for continued and systematic breaches over a period of more than 10 years. Mr Wan overstayed his visa, he made an improbable refugee status claim, he has made false statements to officers of the Department, as well as being obscenely abusive (according to some reports). He has even attempted to deceive this Tribunal in the course of his evidence. Whatever countervailing considerations can be put forward on his behalf (and all that could possibly be said for him was skilfully presented by his solicitor) the countervailing considerations of public interest far outweigh them."

REASONS OF THE PRIMARY JUDGE

18 The learned primary judge, in an ex tempore judgment, accepted a characterisation of the reasons of the Tribunal in relation to the interests of the children as "somewhat sparse". However, his Honour concluded that it was clear that the Tribunal had turned its mind to the question of the best interests of the children. His Honour also concluded that the Tribunal was conscious of the requirement "that it must take account of the best interests of any relevant children", and (as noted above) that "a fair inference can be drawn that the Tribunal did, in fact, intend to treat the best interests of any relevant children as a primary consideration". His Honour was willing to draw the inference as to the Tribunal's intention from the Tribunal's reference to an instruction in the Migration Instruction Series which identified "the best interests of any child associated with the visa applicant/s" as a relevant factor in considering whether to grant a visa following an adverse character finding, and from the Tribunal's reference to "the current Ministerial Direction". His Honour understood the Tribunal's reference to "the current Ministerial Direction" as a reference to the direction under s 499 of the Act which came into effect on 16 June 1999 which may be cited as "Direction - Visa Refusal and Cancellation under section 501 - No. 17" ("the Ministerial Direction"). Paragraph 2.3 of the Ministerial Direction provides:

"In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children."

19 The Ministerial Direction, as both the Tribunal and his Honour appreciated, had no direct application to Mr Wan's application as, by its terms, it only applied to s 501 of the Act as amended by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth).

20 His Honour, in considering whether the Tribunal did treat the best interests of the children as a primary consideration, set out par 34 from the Tribunal's written reasons for decision (see [17] above). Having done so, his Honour said:

"That passage indicates, in my view, that the Tribunal had concluded that it would be in the best interests of the children that Mr Wan should not be refused a visa. The Tribunal was considering the possibilities in which the children might be permitted to remain with their father. They might travel to China with him and the express reference to that possibility indicates that the Tribunal considered that that was not beyond the realms of possibility. The clear assumption, however, it seems to me from the Tribunal's reasons, is that the Tribunal was assuming that it would be in the best interests of the children generally to remain in Australia, and that there was no real detriment from their father returning to China, apart from the financial hardship. I am not suggesting that that was in any way minimised.

It is clear that the Tribunal found that the matters summarised in the passage that I have just set out did not outweigh the strength of community expectations, in the light of the finding that was made in relation to the character of Mr Wan. I do not consider that Mr Wan had made out his complaint based on any failure on the part of the Tribunal to treat the best interests of children as a primary consideration. It would, of course, have been preferable for the Tribunal to set out in some more detail the reasoning that led to the conclusion that the subsidiary matters did not outweigh the strength of community expectations. I did not understand Mr Wan to rely on the Tribunal's characterisation of the matters as `subsidiary' as an indication that the Tribunal had not treated the interest of children as primary."

His Honour dismissed Mr Wan's appeal.

CONSIDERATION

21 The Full Court of this Court gave consideration in Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608 ("Vaitaiki") to the substance of the obligation (should it arise) on an administrative decision-maker, in making a decision affecting a child, to treat the best interests of the child as a primary consideration.

22 The appellant in Vaitaiki was a citizen of Tonga. He had six children, all of whom were Australian citizens. A deportation order was made against him as a non-citizen who had been convicted of serious offences. Mr Vaitaiki applied to the Tribunal for review of the deportation order. Coincidentally the application for review was heard and determined by the same Deputy President whose decision was the subject of the appeal to the Court in this case. Mr Vaitaiki's application to the Tribunal resulted initially in a decision that the decision to issue the deportation order be affirmed. The decision of the High Court in Teoh was published after the date of the Tribunal's reasons, although the decision of the Full Court of this Court in Teoh, which was upheld by the High Court, was available at the time of the Tribunal's decision. An appeal from the decision of the Tribunal was instituted in the Court and by consent the appeal was allowed and the matter remitted to the Tribunal for reconsideration according to law. Unusually the matter was heard and determined on the remittal by the Deputy President who had made the decision which had been set aside by consent. The Deputy President incorporated by reference his earlier reasons for decision in his reasons for decision following his reconsideration of the matter on the remittal. An appeal to the Court from the second decision of the Tribunal was dismissed by a judge of the Court and an appeal from that judgment was made to the Full Court. By majority (Burchett and Branson JJ) the appeal was upheld and the matter again remitted to the Tribunal for hearing according to law by a tribunal different constituted. Whitlam J would have dismissed the appeal.

23 In Vaitaiki, Burchett J pointed out (at 618) that the question which the Tribunal was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported. In that regard, his Honour considered that the failure of the Tribunal to advert to the status of the children as Australian citizens was of considerable significance. With respect to the Tribunal's initial reasons for decision, his Honour (at 614) said:

"The fact that the children's citizenship was not mentioned does not necessarily mean that their best interests were not treated as a primary consideration .... But it does mean, when one looks at the context of the reasons, that a most relevant aspect of the children's position received no consideration. And when neither the Convention nor the children's citizenship is mentioned, and after a lengthy discussion of other considerations the situation of the younger three children is dismissed with the almost perfunctory curtness I have quoted, the conclusion must be that their interests were not treated as a primary consideration." (citation omitted)

24 In considering the Tribunal's written reasons following its reconsideration of Mr Vaitaiki's application, his Honour observed (at 616) that:

"... at the least the substantive law required the interests of young children who were Australian citizens to be taken into account as very significant matters. The view should not be entertained that, when parliament provided for the assertion of community interests under the former s 55, it excluded from those interests the well-being of the community's weakest and most vulnerable members, who are also its future."

25 In Vaitaiki, Branson J accepted (at 630) that the reasons for decision of the Tribunal were to be understood on the basis that the Tribunal did purport to act in conformity with the Convention. At 631, however, her Honour observed:

"If the reasons for decision of the AAT are considered on the above basis, it is noteworthy that nowhere do they seek to identify what would, in the circumstances before the AAT, be the result that would overall be conducive to the best interests of the children. At best they give consideration to the children's best interests in a limited way within a restricted framework. For example, the AAT concluded that the younger children's interests in a `continuing close and daily relationship with their father' would be served by his being deported in circumstances in which they would accompany him to Tonga. It reached this conclusion without, apparently, having regard to the fact that by so accompanying him they would have to leave the community in which they had lived all of their respective lives, start a new life in a new land, and lose the many benefits available to them as citizens of Australia. As to the older children, the AAT concluded that their best interests would be served by remaining in Australia with their mother, should their father be deported. It reached this conclusion without, apparently, having regard to the break-up of their family unit which would flow from their father's deportation, with consequential restrictions on their subsequent contact with their father and half-siblings and a likely diminution in their father's capacity to influence and guide them.

I conclude, in broad agreement with Burchett J, that although the AAT purported to act on the basis that the best interests of the appellant's children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children's best interests: Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409 at 414; [1994] FCA 1017; 121 ALR 436 per Black CJ; Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388 at 392 per Toohey J; Flentjar v Repatriation Commission (Fed C of A, Full Court, 10 October 1997, unreported) at 5."

26 Having regard to views expressed by the majority of the Full Court in Vaitaiki, the written reasons for decision of the Tribunal in this case, so far as they relate to the interests of the children, are, we consider, open to more severe criticism than the observation that they are "somewhat sparse" (see [18] above). Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. That this is the starting point for the Tribunal's consideration follows from Teoh and from Vaitaiki. The Tribunal did not refer to either of these cases.

27 In view of the obligation placed on the Tribunal by s 43(2B) of the Administrative Appeal Tribunal Act 1975 (Cth) ("the AAT Act") to include in its written reasons for decision "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based", we do not consider that it was open to the learned primary judge to conclude that the Tribunal impliedly found that the best interests of each of the two children indicated that his or her father should be granted a visa. To so conclude was to conclude that the Tribunal failed to comply with the obligation imposed on it by s 43(2B) of the AAT Act. Moreover, immediately after identifying the best interests of the children as a consideration relevant to its determination, the Tribunal turned to consider how the interests of the children would be affected by their accompanying their father to China, or alternatively by their remaining in Australia while he lived in China. This suggests that the Tribunal was concerned to identify, not what decision would be in the best interests of the children, but rather how the children's interests would be affected by a decision to refuse to grant their father a visa.

28 In giving consideration, as it had done in Vaitaiki, to what the children might do if their father were required to cease living in Australia, the Tribunal was not undertaking an inherently inappropriate task. Such consideration was capable of assisting the Tribunal in determining whether the strength of any other consideration or considerations outweighed the best interests of the children. However, it was not a useful thing to do without the Tribunal having first identified what the best interests of the children indicated should be decided with respect to Mr Wan's visa application.

29 The Tribunal considered the interests of the children, were their father to cease living in Australia, on two alternative bases: first, that they would accompany their father to China (presumably with their mother remaining, at least primarily, an Australian resident), and secondly, that they would reside in Australia with their mother after their father had returned to China. Although it is of limited significance to the outcome of this appeal, it is appropriate to note that in considering the interests of the children on these alternate bases, the Tribunal failed to have regard to matters identified by the majority of the Full Court in Vaitaiki as being of importance in a case in which a decision might result in young Australians leaving this country and residing with their father but not their mother.

30 With respect to the first of the alternatives which it considered, the Tribunal noted that the elder child had spent almost the first three years of her life in China away from her mother, and that a life in China would be easier for her than for a child of a different ethnic background born in Australia. The Tribunal further noted that the younger child, then ten months old, was too young to have culturally identified with Australia. The Tribunal's written reasons for decision contain no consideration of the following matters:

(a) the fact that the children, as citizens of Australia, would be deprived of the country of their own and their mother's citizenship, "and of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle" (Vaitaiki per Burchett J at 614);

(b) the resultant social and linguistic disruption of their childhood as well as the loss of their homeland;

(c) the loss of educational opportunities available to the children in Australia; and

(d) their resultant isolation from the normal contacts of children with their mother and their mother's family

(Vaitaiki per Burchett J at 614 and Branson J at 631).

With respect to the second alternative which it considered, namely that the children would reside in Australia with their mother following their father's departure to China, the Tribunal apparently accorded no significance to the children's loss of regular contact with, and opportunity for guidance by, their father or to the disruption to their family life which would flow from their father's inability to live in this country (Vaitaiki per Branson J at 631). The only personal hardship referred to by the Tribunal in considering this alternative is hardship to Mrs Wan and possible residual hardship to Mrs Wan's parents.

31 Even if we are wrong in concluding that the Tribunal did not identify what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa, the conclusion is, in our view, inescapable that the Tribunal did not treat the best interests of the children as "a primary consideration" in its determination. First, the Tribunal does not anywhere in its written reasons for decision describe the best interests of the children as "a primary consideration". The Tribunal's reference to the Ministerial Direction is not, in our view, sufficient to negate the significance of this omission as the Tribunal also refers to a Ministerial Direction and to a Migration Series Instruction which do not suggest that the best interests of affected children are a primary consideration. Secondly, the Tribunal in par 34 of its reasons for decision (see [17] above) appears to describe matters touching on the interests of the children as "subsidiary matters". Moreover, in the same paragraph the Tribunal finds that matters touching on the interests of the children do not "outweigh the strength of community expectations". That is, the Tribunal does not in fact treat the best interests of the children as a primary consideration but rather treats considerations touching on community expectations as considerations which should prevail unless "outweighed" by other considerations. As Mason CJ and Deane JJ pointed out in Teoh at 292:

"A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it."

32 An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan's children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan's children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.

34 Nothing in the Tribunal's written reasons for decision, however, suggest that it undertook an exercise of the above kind. It did not act on the basis that the best interests of the children were a primary consideration in the exercise of the discretion to grant, or to refuse to grant, Mr Wan the visa for which he had applied. To the extent that it gave consideration to the interests of the children, it did not give proper, genuine and realistic consideration to their best interests. For these reasons, it not having placed Mr Wan on notice that it was considering proceeding on a basis other than that the best interests of his children were a primary consideration, the Tribunal denied Mr Wan procedural fairness.

35 In our view, the appeal should be allowed and the orders made at first instance set aside. In lieu of the orders set aside it should be ordered that the decision of the Tribunal be set aside, the Minister pay Mr Wan's costs of the application and the matter be remitted to the Tribunal differently constituted to be heard and determined again according to law. The Minister should pay Mr Wan's costs of the appeal.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 18 May 2001

Counsel for the Appellant:

Mr PLG Brereton SC with Mr MA Robinson

Solicitor for the Appellant:

Christopher Levingstone & Associates

Counsel for the Respondent:

Mr R Bromwich

Solicitor for the Respondent:

Australian Government Solicitor

Date of Hearing:

14 May 2001

Date of Judgment:

18 May 2001