Court/Judicial body: Federal Court of Australia, Victoria District Registry
Date: November 13, 1998 CRC
Provisions: Article 3: Best interest of the child
Background: Mr Tien and his family’s visas to stay in Australia were cancelled by the Minister for Immigration when he was found to have been involved in the illegal entry of non-citizens to Australia. The original visa applicants—Mr. Tien, his wife, and their five-year old daughter—applied to review the Minister’s decision as contrary to the Convention on the Rights of the Child (“CRC”). Specifically, they claimed that, contrary to the legitimate expectation created under Article 3 of the CRC (see below), the Minister had failed both (1) to take into account the best interests of the child when making his decision and (2) to notify Mr. Tien of his intention not to treat the best interests of the child as a primary consideration.
Issue and resolution: Best interests of the child. The Court held that the Minister’s decision to cancel the visas of Mr. Tien and his family should be set aside because the immigration official did not consider the best interests of Mr. Tien’s five-year old daughter, nor did the official notify Mr. Tien of her intention not to do so.
Court reasoning: Following the decision from Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (summary and case available at http://www.crin.org/Law/instrument.asp?InstID=1431), the Court agreed that Australia’s ratification of the CRC created a “legitimate expectation” that administrative decision-makers would act in conformity with the Convention. Because of this legitimate expectation, when an administrative decision-maker decides not to act in conformity with a treaty, as a matter of procedural fairness, the decision-maker must notify the person affected by the decision so as to afford the person an opportunity to argue that the decision-maker should do so. In this case, the immigration official knew about Mr. Tien’s five-year old daughter, and Article 3 of CRC created a legitimate expectation that the immigration official would consider the daughter’s best interests when deciding whether or not to deport Mr. Tien. However, the evidence indicated that the immigration official did not specifically consider the daughter’s best interests at all, nor did she notify Mr. Tien of her intention not to do so. Therefore, following the principle set forth in Teoh, the Minister’s decision to cancel Mr. Tien and his family’s visa should be overturned.
Excerpt citing CRC and other relevant human rights In the further written submissions received from counsel for the applicants my attention was directed to Art 3 of the United Nations Convention on the Rights of the Child 1989, done at New York on 20 November 1989 (the Convention). The Convention came into force on 2 September 1990 and was ratified by Australia with effect from 16 January 1991. Article 3 states: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” It has not been incorporated into Australia’s domestic law by statute. … Thus, it was said that the best interests of the child should have been a primary consideration but that they were not. Reliance was placed on Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and Davey Browne v Minister for Immigration and Multicultural Affairs (1998) 27 AAR 353. It followed, said the applicants, that there had accordingly been an error of law within s 476(1)(e) of the Act as the law applicable to the third applicant, the child, had been incorrectly applied. The respondent submitted that as a matter of fact the rights of the child had been taken into account but that in any event there was no action involved “concerning” the child as the decision to cancel Mr Tien’s visa did not affect the child’s visa; rather it was the Act (s 140) which cancelled the child’s visa. … “Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.
That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as ‘a primary consideration’.” … Even if it could be said, contrary to my finding, that Ms Leonardi did turn her mind to, or focus on, the best interests of the child, the evidence does not support the conclusion that Ms Leonardi considered the best interests of the child as a primary consideration. I am satisfied on the evidence before the Court that Ms Leonardi, in reaching her decision to cancel Mr Tien’s visa did not consider the best interests of the child as a primary consideration nor did she tell Mr Tien that she was intending not to consider the best interests of the third applicant as a primary consideration. Adopting the words of Wilcox J in Davey Browne (supra) 24, Ms Leonardi: “… did not grapple with the obligation under the Convention to make the best interests of [the child] a primary consideration.” The decision which Ms Leonardi made did not necessarily have to be a decision in the best interests of the child but Ms Leonardi was obliged to address that issue as a primary consideration at the same time as she was considering the matters which tended to support a decision adverse to the best interests of the child. As I noted earlier, if she decided not to make the best interests of the child a primary consideration she was bound to draw this decision to the attention of Mr Tien and give him an opportunity to respond to it.
Notes: In the wake of the Teoh case, the government made statements that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging administrative decisions. Nevertheless, the judge in this case concluded that these statements were of no effect, and that Teoh’s principle, which is concerned with procedural fairness, still held unless the Parliament or the Executive told decision-makers not to act in accordance with treaties. Shortly after this case, legislation was introduced in parliament to reverse the position created by Teoh and this case. Although the legislation never passed, courts have shown strong reservations about following the logic of the Teoh and Tien cases going forward. For more information, read an Article about “The Rise and Fall of Teoh in Australia” here: http://www.austlii.edu.au/au/journals/UMonashLRS/2010/8.html.
CRIN comments: In line with the CRC, CRIN believes that the best interests of children must be a primary consideration in every proceeding involving them, whether directly or indirectly. CRIN believes that this case as decided is consistent with the CRC. In any proceeding where an immigrant parent is at risk of being deported from a country, the interests of children involved must be considered and all efforts to avoid separating the family made. In the same way that this judgment is consistent with the CRC, however, the legislation introduced after this case was decided and subsequent case law on the subject is inconsistent with the CRC. As a party to the CRC, Australia must respect its international obligation to consider the best interests of children in all proceedings involving them.
Citation:  FCA 1552
Link to full judgement: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/1998/1552.html?query=