I received this in a CCH news alert email today - a very interesting case about the interests of family members in the context of a visa cancellation based on bad character:
| Cancellation of visa; legitimate expectations, 22 October 2012 |
| 23 October 2012 |
| |
The Federal Court has further explained the Article in the United Nations Convention which (relevant to Australia and its decision-makers) requires that the best interests of the child shall be a primary consideration.
The case was Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, concerning a delegate’s decision to cancel the appellant’s visa under s 501(2) of the Migration Act 1958 (Cth) on the basis of a “substantial criminal record”.
In an unsuccessful appeal to a full court of the Federal Court, the full court said that the appellant (father of three children who lived with other family members) had misstated the effect of the observations of Mason CJ and Deane J in the 1995 High Court case Teoh.
The full court said that it agreed with the following analysis by Tracey J of that aspect of Teoh inBasile v Minister for Immigration and Citizenship (2011) 193 FCR 329:
“Teoh does not require that the best interests of Mr Basile’s children must be given temporal primacy over the other three primary considerations which are identified in the Direction. The case stands for the proposition that, by ratifying the United Nations Convention on the Rights of the Child 1989, done at New York on 20 November 1989 (the Convention), the Australian government has represented that it will act conformably with the terms of the Convention. One of its Articles provided that, in all actions concerning children, administrative authorities of the State would ensure that ‘the best interests of the child shall be a primary consideration’ (emphasis added). Although the Convention had not become part of domestic law, its ratification gave rise to a legitimate expectation that administrative decision-makers would comply with it and would not fail to do so without first affording an affected person the opportunity to argue that the decision-maker should treat the interests of a child as a primary consideration. It was not held that an Australian administrative decision-maker must always accord primacy to the interests of any relevant child much less that such a consideration must be brought into account before any other considerations are selected and weighed by the decision-maker.”
In Baker, the full court also held that the primary judge was correct to emphasise the need to appreciate that it is usual for administrative decision-makers (and indeed others) to express their reasons sequentially. For example, expressions of conclusion in a particular sequence did not necessarily indicate that there has been a failure to consider the evidence as a whole.
|
|
Posts
