Paul Cutler's Migration Case Law Blog

Best interests of the children

unfairnessThe best interests of minor children is one of the primary considerations which has to be taken into account in making a decision whether or not to revoke a visa cancellation on character grounds. Usually, the interests of children is raised by Applicants as a reason in favour of revocation i.e. the children shouldn’t be separated from, or deprived of, a relationship with both parents.

The Full Court decision of  Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59  is interesting for a couple of reasons. Firstly, because the judicial review applicant succeeded on a ground that wasn’t raised before the primary judge; and secondly because the Tribunal found that the best interest of the children would be served by separation from their father. The jurisdictional error was that Mr Korat was dealt with in a procedurally unfair way when the interests of the children factor was applied in support of the cancellation decision.

Submissions to the Tribunal

Mr Korat’s visa had been cancelled inter alia because of assault conviction and some breaches of an AVO. Unfortunately some of that offending conduct had been directed towards his wife. One of the factors relevant to the interests of the children was the position of Mrs Korat (the applicant’s wife):

  1. Before the delegate, Mrs Korat had said that if her husband’s visa application for revocation was unsuccessful, she would relocate to India with their two children; however, 
  2. by the time the matter was in the Tribunal she had had a change of heart and her evidence was that she and the children would remain in Australia.

This clearly influenced the way the parties made their submissions at the Tribunal:

  1. the Applicant argued that Mr Korat had played a significant role in the upbringing of his children and that the best of interests of the children were strongly in favour of the revocation of the cancellation decision; and
  2. the Minister accepted that the factor would weigh in favour of revoking the visa cancellation but that it should not have been given much weight.

Decision of the Tribunal

Despite those submissions, the Tribunal found (see [23] of the judgment) that:

  1. If the appellant’s visa cancellation was not revoked such that he would return to India, Ms Korat would not leave Australia, and neither would the children.
  2. The appellant’s drinking issues had not resolved and were not purely a historical problem. The appellant remained vulnerable to resorting to alcohol use and then engaging in aggressive behaviour.
  3. The family violence and the alcohol misuse presented serious challenges to the proposition that revocation of the visa cancellation was in the children’s best interest.
  4. Ms Korat had cared for the children all their lives, including during the appellant’s incarceration and detention, and she had fulfilled the parental role as a loving, caring, and responsible parent.
  5. On balance, the Tribunal would give the “best interests of the children consideration” some weight against revocation. This was principally for two reasons: (1) Ms Korat would remain in Australia with the children and had looked after them lovingly and well; and (2) the appellant’s drinking issues were live issues which might devolve into aggressive behaviour.
  6. Thus, the Tribunal concluded that the best interests of the children were better served by the appellant being separated from the children, giving the consideration some weight against revocation

The procedural fairness issue

The Full Court found that Mr Korat had not been given procedural fairness because:

[61] The Tribunal had asked Ms Korat questions relevant to the “best interests of the children consideration”, but the Tribunal had not directly put to a witness, or raised as an issue with the appellant, that the “best interests of the children consideration” might weigh against revocation as opposed to a matter: (a) going to how strongly the matter weighed in the appellant’s favour; or (b) neutralising it as a matter in the appellant’s favour. The Tribunal did not raise the issue during submissions.

[62]….In light of the course of the proceedings, practical injustice could only be avoided if the appellant were provided an opportunity to address the issue which the Tribunal ultimately found against the appellant. This was not an issue put forward by the parties, it was not an issue which the Tribunal squarely raised, and it was not an issue which was obvious given the course of the administrative decision-making process and the course the proceedings had taken; and 

[63] The denial of procedural fairness deprived the appellant of a realistic possibility of a different outcome:……The Tribunal heard no argument (from either party) about why the “best interests of children consideration” should not weigh against revocation.

If nothing else, the decision is a good example of procedural fairness in action.

Creative commons acknowledgment for the photograph.

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