Case: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: distinguished
In his written submissions to this Court the applicant's counsel submitted that paragraph 2.3(c) of Ministerial Direction No. 21 'incorporates Australia's obligations under the United Nations Convention of the Rights of the Child: see the decision in Minister for Immigration &amp; Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273'. 67 However, in his oral submission the applicant's counsel contended that there was a wider obligation imposed upon the AAT than that contained in paragraph 2.3(c) of Ministerial Direction No. 21. The wider obligation arises because Australia is a party to the Convention on the Rights of the Child and, it was submitted, bound to treat the best interests of the child as a primary consideration in all cases concerning children. Thus it was put because of that international obligation the decision maker has to have regard to the interests of any child whether or not there is a parental or close relationship as required in paragraph 2.3(c) of Ministerial Direction No. 21. For that submission, the applicant's counsel again relied upon Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 (' Teoh '). 68 In that regard, his oral submissions contradicted his written submissions. Nevertheless, I will deal with the submission. 69 Article 3(1) of the United Nations Convention on the Rights of the Child 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.' 89 Allsop J said at 471: '70 By reason of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ( Teoh ) it was incumbent upon the Minister, in order to accord procedural fairness to Mr Perez, that if he were proposing to make a decision on a basis other than that the best interests of the children to be affected by the decision were a primary consideration, he would have to inform Mr Perez of that, and he would have to provide Mr Perez with an adequate opportunity of presenting a case against the taking of such a course: Teoh , supra at 291-92, 302, 304-5; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. No such notice was given by the Minister or the department to Mr Perez. Therefore, if the interests of Mr Perez's three children and one step-child were not treated as a primary consideration in the making of the decision, that is that the decision was made on a basis other than that their best interests to be affected by the decision were a primary consideration, the decision was flawed and liable to be set aside under the AD(JR) Act . I should add that Mason CJ and Deane J had expressed their views in Teoh , supra at 291-2, on the basis of the existence of a legitimate expectation, absent statutory or executive indications to the contrary. No such contrary indications were pointed to here.' 90 Allsop J was applying the decision in Teoh . That decision was relevant because there were no statutory or executive indications contrary to the proposition that the best interests of Mr Perez' children ought to be a primary consideration. 91 Allsop J concluded that there was sufficient material before the Minister to enable him to take into account as a primary consideration the best interests of the children who might be affected and there was no evidence that the Minister had not done so. That part of the application failed. 92 Later, in his reasons, Allsop J dealt with a submission that the interests of Mr Perez' children were not taken into account as a primary consideration in respect of a further decision. Allsop J reasoned that where a delegate was obliged to take into account as a primary consideration the interests of children, the delegate should first identify for himself or herself those interests. There can be no doubt that logically that must be so but, as his Honour said, this is not some inflexible rule of law, or requirement for mechanical incantation. In my opinion, Perez is not authority for the proposition advanced by the applicant's counsel. As I have already mentioned, Perez was decided in circumstances where the decision maker did not have the executive instruction contained in Ministerial Direction No. 21.