s 501CA(4): best interests of “other children” relevant?

Federal Court. For the purposes of s 501CA(4) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"? If the non-citizen has minor children in Australia, but does not make their best interests part of his/her claim, does the AAT nevertheless have an obligation to consider those interests if it is aware of the existence of the children? Does that obligation arise if the non-citizen is not the parent of the children? If not, does that obligation nevertheless arise if "there are a number of additional circumstances known to the [AAT that indicate that the children in question] may be affected by the decision"? Further, did the AAT misinterpret cl 14.2(1)(b) of Direction 79?

The Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on character grounds. A delegate of the Minister decided not to exercise the power conferred by s 501CA(4) to revoke the cancellation of the visa.

The Applicant applied to the Tribunal for merits review of the non-revocation decision. As the Applicant failed the character test, the question to the Tribunal under s 501CA(4) was whether there was "another reason" to revoke the cancellation. The Tribunal was bound by s 499 to comply with Direction 79.

Clause 13.2 of Direction 79 required decision-makers to take into consideration the best interests of minor children in Australia affected by the decision, whether or not they are the children of the non-citizen in question.

The Applicant had 3 children, Child A, Child B and Child C with Ms A, Ms B and Ms C, respectively. The Applicant was in a relationship with Ms C at the time of the Tribunal's decision.

Ms C had 4 other children from a previous relationship (Ms C's other children).

The Applicant's "case" before the delegate and also before the Tribunal articulated only the best interests of Child C.

The Tribunal, who was aware of all of the above facts, considered the best interests of Child A, Child B and Child C, but not of MS C's other children, and affirmed the delegate's decision.

Further, cl 14.2 of Direction 79 read as follows:

14.2    Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

In that respect, the Tribunal's decision contained the following paragraph (emphasis added):

140.    I consider that the nature of Mr Downes’ connections with Australia, primarily through his connection to Australian citizens and parts of the indigenous communities in central Australia to be significant, notwithstanding that less weight is to be given to this factor where Mr Downes began offending soon after arriving in Australia, and there is only limited evidence demonstrating periods of positive contribution to the community. I consider this factor weighs in favour of revoking the visa cancellation.

The questions to the Federal Court (FCA) were as follows:

Question 1: For the purposes of s 501CA(4) of the Migration Act 1958 (Cth) and Direction 79, can the "circumstance that a father does not disclose the existence of his natural children ... be taken into account in determining where the best interests of the children may lie"?

Question 2: If the non-citizen has minor children in Australia but does not make their best interests part of his/her claim, does the Tribunal nevertheless have an obligation to consider those interests if it is aware of the existence of the children?

Question 3: Can it be said, without more, that the revelation of the existence of Ms C's other children was sufficient to invoke an obligation to consider their best interests?

Question 4: If the answer to Question 3 is "no", can it be said that the obligation to consider the best interests of Ms C's other children nevertheless arose because there were "a number of additional circumstances known to the Tribunal that indicated that Ms C’s other children may be affected by the decision"?

Question 5: If the Tribunal's failure to consider the best interests of Ms C's other children constituted an error, was that error material to the Tribunal's decision?

Question 6: Did the Tribunal misinterpret cl 14.2(1)(b) of Direction 79?

Question 7: If the answer to Question 6 is "yes", was that misinterpretation/error material to the Tribunal's decision?

The FCA answered those questions as follows:

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