Federal Court (Full Court). Does the word "may" in s 501CA(4) indicate a discretion? Was AAT obliged to consider best interests of minor children, even if those interests were not advanced by the appellant? If so, can it nevertheless be said that AAT "is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised"? If a child who is not a NZ citizen is granted a subclass 444 visa under s 78(1), does it immediately cease to have effect? If a person's visa is cancelled under s 501(3A), is a visa granted to their child under s 78 cancelled by operation of s 140(3)? If so, does the revocation of a visa cancellation under s 501CA(4) have the effect of nullifying a consequential cancellation under s 140(3)? Does Teoh still have work to do?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Subsection 501CA(4) of the Migration Act 1958 (Cth) provided as follows: "The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the person satisfies the Minister that the person passes the character test (as defined by section 501)". Does the use of the word "may" in the chapeau of s 501CA(4) indicates that the Minister has a discretion to revoke the mandatory cancellation of a visa?
Question 2: Can it be said that "it might usually be inferred from the fact that the appellant was legally represented [in the court below] that the omission to raise [a point in that court] was a result of a deliberate forensic decision"?
If the answer to Question 2 is "yes":
Question 3: In circumstances where the "appellant was almost certainly the only party who was able to positively establish whether this was [a deliberate forensic choice]", could an affidavit from Counsel who appeared before the primary judge rebut that inference?
Question 4: Can it nevertheless be said that "litigants may be represented by practitioners of insufficient ability in the areas in which they profess to practise", in which case "the Court may be more willing to accept that a point was not taken at first instance as a result of an oversight"?
Question 5: Can it be said that, "in every case where a new ground with some merit is identified after the first instance hearing, an appellant will be able to claim some prejudice if leave is not allowed to raise it on appeal on the basis that the matter may be dealt with otherwise than on the real issues"?
Question 6: Can it be said that, "in many migration cases, [not granting leave to raise a new ground not raised below] will raise the spectre of the loss of an entitlement to remain in Australia which is accepted by this Court as amounting to prejudice of a varying degree depending upon the circumstances of the case"?
Question 7: Does the consideration of whether it is in the interest of justice to grant leave to a party to raise a new ground not raised below "extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration"?
Question 8: Is the customary application of s 510CA(4) by the Executive branch of government irrelevant to its correct construction?
Question 9: Does s 510CA(4) import an obligation to consider the best interests of any children of a non-citizen as that concept is used in the United Nations Convention on the Rights of the Child?
Question 10: In determining under s 501CA(4) whether there is "another reason" to revoke the mandatory cancellation of a visa, is an administrative decision-maker required to consider a claim which, although not clearly articulated by an applicant, "clearly" or "squarely" arose from the evidence before it?
Question 11: In performing the function required by s 501CA(4)(b)(ii), was the Tribunal required to take into account the factors which were raised by the appellant in the course of the Tribunal hearing?
Question 12: In determining whether leave should be granted to raise a new ground for the first time on appeal, can it be said that some prejudice to the respondent arises because additional costs will be incurred and that such prejudice should inform that determination?
Question 13: In determining whether leave should be granted to raise a new ground for the first time on appeal, can it be said that some prejudice to the respondent arises because a possible right of appeal will be lost, as an appeal to the High Court can only occur if special leave to appeal is granted?
Question 14: Does the fact that the Minister inadvertently made legally erroneous submissions to the Tribunal, which might have misdirected the Tribunal in its consideration of the best interests of a minor child of the appellant, militate in favour of granting leave to the appellant to raise a new ground for the first time on appeal?
Question 15: Clause 444.511 of Schedule 2 to the Migration Regulations 1994 (Cth) provided that a subclass 444 visa is a “[t]emporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen". If a child is granted a subclass 444 visa by operation of s 78(1) of the Act, but the child is not a New Zealand citizen, would the child's visa immediately cease to have effect?
Question 16: Should the following words in square brackets be read into s 140(3) of the Act: "If: (a) a person's visa (the cancelled visa) is cancelled under any provision [of Part 2] of this Act; and (b) the person is a parent of another person; and (c) the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa; the other visa is also cancelled"? In other words, can it be said that, if a person's visa is cancelled under s 501(3A), a visa previously granted to their child under s 78 is not cancelled by operation of s 140(3)?
Question 17: If the answer to Question 16 is "no", does the revocation of a visa cancellation under s 501CA(4) have the effect of nullifying a consequential cancellation under s 140(3), by reason of s 501CA(5)?
Question 18: The concept of “legitimate expectation” as a necessary criterion of an entitlement to procedural fairness discussed by the High Court in Teoh has since been rejected by the High Court. Does that "undermine the conclusion reached by the High Court in Teoh that a breach of the requirements of procedural fairness may occur if a decision to refuse to grant, or to cancel, a visa is made without considering the best interests of a child affected by the decision as a primary consideration, and without giving the applicant an opportunity to be heard on that matter"?
Question 19: Can it be said that the concept of the best interests of a child under Direction 79 "embraces consequences of an administrative decision that may bear upon the welfare of children including, most directly, the break-up of the immediate family unit" and, "if the effect of the cancellation of the parent’s visa is that the child is likely to accompany the parent to a third country, the welfare considerations may include separation from the child’s extended family and community, the social and linguistic disruption of childhood, and loss or reduction in education opportunities"?
Question 20: If the answer to Question 20 is "yes", is the decision-maker, in considering s 501CA(4), bound not only to consider the best interests of a child, but also to make a determination about whether revocation is in the best interests of the child?
Question 21: "In Uelese, the plurality stated (at ) that the requirement to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case"". Nevertheless, can it be said that the Tribunal "is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised"?
The FCAFC answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.