Case: Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 17
Outcome: cited
Although not bound to apply Direction 21, being a direction under s 499(1) of the Act (see Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 17 at 28 per Jacobson and Bennett JJ), the Minister specifically stated, in her reasons for decision, that she "proceeded in accordance" with the Direction. Direction 21 relates to the application of the character test and the exercise of discretion in determining whether or not to cancel a visa. Direction 21 provides that a decision-maker should have regard to three "primary considerations", one of which is "in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children". 20 In conformity with the Direction, the Minister stated, in her reasons, that: I gave primary consideration to the best interests of any children who are less than 18 years of age and with whom Mr YALNIZ is in a parental or other close relationship. Mr YALNIZ has four children from his second marriage and five children from his third marriage, all of whom are under the age of 18 years. Mr YALNIZ was imprisoned in January 2002 and I noted that he has not had contact with any of his children since his incarceration. I noted Ms Sowerine's statement that Mr YALNIZ has desperately wanted to contact his children and that he was advised by his solicitor that he should wait until he is released from prison before commencing proceedings in the Family Court. There is no evidence of any current Parenting Order in force imposing parental responsibilities on Mr YALNIZ for any of his nine children. On balance the information relevant to this consideration weighed against cancelling Mr YALNIZ's visa. I gave this consideration considerable weight. 21 In her reasons, the Minister also stated she had "carefully assessed all of the information set out in the Issues Paper". Indeed, the Minister's signature was endorsed at the conclusion of this document. In relation to the best interests of Mr Yalniz's children, the Issues Paper referred to art 3.1 of the Convention on the Rights of the Child and to par 2.16 of Direction 21, which set out factors to be taken into account when considering a child's best interests. The Issues Paper referred to the ages of Mr Yalniz's children and to the fact that there was "no indication that the children would accompany Mr Yalniz if his visa were cancelled". The Issues Paper also referred to his incarceration, his desire to see his children and his solicitor's advice. The Issues Paper emphasized Mr Yalniz's feelings for his children and referred to the submissions made by Victoria Legal Aid and the declaration made by Mr Yalniz's uncle. Finally, on this topic, it stated: Should Mr Yalniz's children accompany him to Turkey, it is open for you to find that the standards of education and health care in Turkey are not comparable to those available in Australia. It is open for you to find that should Mr Yalniz's children leave Australia, they may be separated from their mothers and would face a period of readjustment as they become accustomed to a new school and attempt to establish new social networks. It is open for you to find that it would be in the best interests of the children to remain in Australia and not to experience the disruptions involved in relocating to Turkey. It is reasonable to accept that Mr Yalniz's children would be affected by a decision under s. 501(2) and that it remains in each child's best interests that Mr Yalniz not be removed from Australia. In the event of his removal, the children would be deprived of a continuing relationship with their father.