Nathanson extended to failure to consider child’s views?

The applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) for character reasons, after which a delegate of the first respondent (Minister) refused to revoke the cancellation pursuant to s 501CA(4) of the Act. The applicant then applied to the second respondent (Administrative Appeals Tribunal) for review of the non-revocation decision. The Tribunal was bound to comply with Direction 90, para 8.3(4)(f) of which provided that decision-makers must consider, in determining the best interests of a minor child affected by a decision not to revoke the cancellation, “any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)”.

A 13-year-old daughter of the Applicant wrote a letter giving reasons why the cancellation should be revoked. The Applicant relied upon that letter in his statement of facts, issues and contentions (SFIC) to the Tribunal. The Tribunal purported to assess the child’s best interests and weighed that consideration moderately in favour of revocation, but affirmed the non-revocation decision, as other factors outweighed that consideration.

The applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal’s decision. One of the grounds of judicial review was a claim that the Tribunal ignored the letter written by the Applicant’s daughter. Another ground claimed that Tribunal fell into error by “using the cases of my father and brothers and additional warnings as a deterrent”.

Some of the questions to the FCA were as follows:

Question 1: Was the Tribunal bound to consider the known views of the child affected by the Tribunal’s decision where those views were relevant child's best interests?

Question 2: May weight given to a child’s views vary according to the age and maturity of the child?

Question 3: As the child's letter containing her views was before the Tribunal, was the Tribunal required to treat those views as 'known'?

Question 4: Did the Tribunal consider the known views of the daughter by taking into account the evidence, which coincided with the child's evidence, of the applicant and his partner concerning the effect his removal would have upon the child?

Question 5: Was there an expectation that the Tribunal would refer to the child’s views, given the centrality of those views to the Applicant’s case and the requirement under para 8.3(4)(f) of Direction 90?

Question 6: In Nathanson, Kiefel CJ, Keane and Gleeson JJ held in the context of a denial of procedural fairness that the standard of reasonable conjecture, used to determine whether an error was material and thus jurisdictional, was "undemanding". In determining through reasonable conjecture whether the Tribunal’s error was material to the outcome and thus jurisdictional, was the standard of reasonable conjecture equally undemanding?

Question 7: Can it be said that "a child’s views may carry greater persuasive weight than evidence about the child’s views or effects on the child given by the former or prospective visa holder or other witnesses"?

Question 8: If the answer to Question 7 is 'yes', would it have been open to the Tribunal to accord greater weight to the daughter’s expression of her views about the effects of the removal upon her than it did to her parents’ evidence, in the absence of error? In other words, does the materiality test involve a balancing, as opposed to a binary, exercise?

Question 9: Was the Tribunal's error immaterial in that, "in the absence of [the child's] knowledge as to relevant family violence and substance abuse, her views would not overcome or add to the evidence in a meaningful way"?

Question 10: Can the Tribunal make a decision as a means of punishing a former visa holder?

Question 11: Can the Tribunal make a decision as a means of deterrence of criminal conduct?

The FCA answered those questions as follows: