Federal Court (Full Court). Were the best interests of the children under Direction 90 to be viewed through the prism of what the appellant would do if the visa was refused? Does the fact that the Tribunal was aware that the interests of the relevant minor children differed and the extent to which they did and that the appellant did not put that difference in issue before the Tribunal mean that the Tribunal engaged in the required weighing exercise?
The appellant’s husband’s partner visa application was refused under s 501(1) of the Migration Act 1958 (Cth), after which she applied to the second respondent (Administrative Appeals Tribunal) for review of the refusal. The Tribunal was obliged to comply with Ministerial Direction 90, para 8.3 which required it to: consider the best interest of minor children in Australia; and, if there were two or more relevant children, give individual consideration to the extent that their interests may differ. The Tribunal affirmed the refusal, saying as follows:
121. This primary consideration weighs substantially in favour of granting the visa if the Review Applicant decided to remain in Australia with her children, and less so if she decided to reunite with the Visa Applicant in Lebanon as she previously intended.
The appellant then unsuccessfully applied to the Federal Court for judicial review of the Tribunal’s decision and appealed to the Full Court (FCAFC). On appeal, she argued that the primary judge erred by failing to find that the Tribunal had failed to comply with para 8.3 by:
“(a) considering the best interests of the minor children in Australia affected by the decision through the prism of the hypothetical future decisions that might have been made in the event the visa was refused, rather than by reference to whether the best interests of the children would be served by the grant or refusal of the visa; and
(b) failing to consider the differential interests of the children, which existed whether the visa was granted or refused, and which (the appellant contends) were particularly acute if the visa was refused.”
Some of the questions to the FCAFC were as follows:
Question 1: Were the best interests of the children under Direction 90 to be viewed through the prism of what the appellant would do if the visa was refused?
Question 2: Does the fact that the Tribunal was aware that the interests of the relevant minor children differed and the extent to which they did and that the appellant did not put that difference in issue before the Tribunal mean that the Tribunal weighed the best interests of the children by reference to the individual interests of each child to the extent that they diverged?
The FCAFC answered those questions as follows: