Australian Immigration Daily News

Exactly how should the “best interests of children” be considered in a case involving visa cancellation on character grounds?

Or for that matter, in any other migration decision?

For example, do the “best interests” of children override all other considerations?

Can other considerations, such as the possible risk of harm to the Australian community if the visa holder were to re-offend be assigned more weight in the decision-making process than the best interests of the visa holder’s children?

These issues were re-visited in a recent decision of the Full Court of the Federal Court, Murad v Assistant Minister for Immigration and Border Protection (2017) FCAFC 73 (11 May 2017).

The circumstances in Murad were as follows:

The visa holder was a person of Palestinian origin who had arrived in Australia in December 2001 when he was 15 years of age. He had been convicted of several serious offences, including “specially aggravated, attempt to enter a dwelling with the intent to commit a serious indictable offence, namely intimidation” and “firing a firearm at a house with disregard for the safety of other persons”.  He was sentenced to a total of 6 years and two months imprisonment for these offences. The visa holder was also convicted of the offences of possession of a self-loading rifle without the authority of a licence or permit, and possession of a pump-action shot-gun without the authority of a licence or permit”, and he had received separate sentences totaling 65 months for these offences.

The issue raised by the visa holder before the Full Court was whether the Minister had failed to consider the best interests of the visa holders minor children as a “primary consideration” in determining whether to cancel his visa.

As readers will be aware, the source of the obligation to treat the best interests of children as a primary consideration is Article 3.1 of the United Nations Convention on the Rights of the Child, which provides:

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

So, does that mean that if a visa holder has children, then the best interests of those children will be paramount, or will override every other consideration, when it comes to decisions whether or not to cancel a visa?

No, it does not.

As observed by the Full Court in Murad, the High Court held in the case of Minister for Immigration and Ethnic Affairs v An Hin Teoh, the wording of the Convention requires only that the best interests of children be treated as “a” primary consideration, and not as “the” primary consideration.

What this means, under Teoh, is that the best interests of children must be given “first importance”, but it does not mean that the best interests of children necessarily and by itself outweighs all other considerations.  It remains possible that other considerations may, in any given case, outweigh the best interests of children.

However, what is also clear, under the decision of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs is that no other consideration can be treated as “inherently more significant” than the best interests of children.  In other words, under Wan, the evaluative exercise that must be undertaken in deciding whether to exercise the discretion to cancel a visa is to identify the best interests of the visa holders children, and then to assessed whether the strength or other considerations outweighs the best interests of the children.

And what if, in the course of decision-making, the Minister or other decision-maker does not positively identify where the best interests of any children are?

Such a failure may amount to “procedural unfairness”, and thus jurisdictional error that will cause the decision to be quashed.

The key to finding this type of jurisdictional error is to look to see if the Department/Minister has used hypothetical language when referring to the best interest of children – for example, whether the wording of the decision document speaks in terms that it “may” be in the best interests of children to exercise decisional discretion in a particular way, rather than making a definite decision as to what the best interests of children do require.

There is one more aspect of the Murad decision that is worthy of note. 

The Full Court held that simply because the Minister may refer, in the Statement of Reasons for a visa cancellation, to there being an “unacceptable risk of re-offending” that language does not, by itself, mean that Minister has given insufficient weight to the best interests of children. It would only be if the Minister says that the risk of re-offending is the primary consideration, or the paramount consideration that outweighs all other considerations, or that it is a consideration that is inherently as significant as the best interests of children, that jurisdictional error will be found.

Questions: This email address is being protected from spambots. You need JavaScript enabled to view it.