FEDERAL COURT OF AUSTRALIA Administrative law - natural justice - whether the rules of natural justice were breached where the decision-maker allegedly failed to warn that it would rely on certain factual and evidentiary matters in reaching its findings - opportunity to present case - evaluating procedural fairness in the light of all the circumstances. Immigration - deportation - risk of recidivism where applicant had a long criminal history. Treaties - status in domestic law - meaning of "a primary consideration" - balance of considerations - requirement that where a decision-maker proposes to make a decision inconsistent with the legitimate expectation that an application would be dealt with in accordance with the Convention, then the person affected must be afforded procedural fairness. UN Convention on the Rights of the Child - Article 3 Migration Act 1958, ss 200-1 Administrative Appeals Tribunal Act s 23B, s 39 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 - distinguished Kunz v FCT (1996) 41 ALD 533 - distinguished Amrit Lal Narain v Parnell (1986) 9 FCR 479 - distinguished Dobbie v The Secretary, Department of Social Security (1995) ASSC ¶92-137 - distinguished R v Secretary of State for the Home Department, Ex parte: Venables [1997] 3 WLR 23 - considered Patel v The Minister for Immigration [1997] 1 NZLR 252 - considered Vaitaiki v the Minister for Immigration and Ethnic Affairs, Beaumont J, 20 June 1997 - applied IMAD SALAMEH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS NG 889 of 1995 JUDGE: BEAUMONT PLACE: SYDNEY DATED: 23 JUNE 1997 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 889 of 1995 ) GENERAL DIVISION ) BETWEEN: IMAD SALAMEH Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: BEAUMONT PLACE: SYDNEY DATED: 23 JUNE 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 889 of 1995 ) GENERAL DIVISION ) BETWEEN: IMAD SALAMEH Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: BEAUMONT PLACE: SYDNEY DATED: 23 JUNE 1997 REASONS FOR JUDGMENT INTRODUCTION This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Deputy President Dr. P. Gerber, given on 26 October 1995, affirming a decision of the Minister made on 2 October 1993 under the then s 55, now ss 200 and 201 of the Migration Act 1958, to deport the applicant. Sections 200 and 201 provide: "Deportation of certain non-citizens 200. The Minister may order the deportation of a non-citizen to whom this Division applies. Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes 201. Where: (a) a person who is a non-citizen has either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or (B) for periods that, when added together, total less than 10 years; or (ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder: (A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or (B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and (c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; section 200 applies to the person." The deportation order stated that the applicant had been convicted in May 1985 for armed robbery and possession of an unlicensed pistol; offences committed in October 1981 for which he was sentenced to a long term of imprisonment. As will be seen, there were several other convictions available for the purposes of making an order for deportation. In order to understand the questions that arise in the appeal, it will first be necessary to refer to the reasons for an earlier decision of the Tribunal, constituted by Deputy President Mr B. J. McMahon, given in the matter on 15 February 1995 and also affirming the deportation order. THE FIRST DECISION OF THE TRIBUNAL (MR B. J. McMAHON) These reasons may, so far as is material for present purposes, be summarised as follows: The applicant was born in Jordan on 8 May 1958 and remains a citizen of that country. He came to Australia on 5 March 1970, then aged eleven, with his mother. The applicant was first convicted for stealing in 1973; further convictions for dishonesty followed almost annually until he became legally adult. His convictions resulted in his being placed in custody for various periods in a number of juvenile institutions. In 1977 the applicant was convicted on three charges of breaking, entering and stealing and was given a head sentence of five years imprisonment. In April 1978 the applicant was interviewed by an officer of the Department of Immigration in the context of its consideration whether to recommend the deportation of the applicant. Although a decision was then taken not to deport him, the applicant was given a warning by the Department on 23 April 1979 that the commission of any further offences would result in a reconsideration of the question of his deportation. The applicant escaped from custody and was sentenced on 27 January 1978 to a further term of twelve months imprisonment; this conviction is the second of the available deportable offences. The third conviction available was one for larceny of a motor vehicle on 29 August 1983, for which the applicant was sentenced to one year in prison. On 29 October 1982, following an armed robbery at a post office and pursuit by an off duty policeman, the applicant was convicted of four crimes; namely, two charges of robbery whilst armed, one charge of discharging loaded arms with intent to resist arrest and one charge of possessing an unlicensed pistol. The applicant appealed; the appeal was allowed and a retrial ordered. The applicant was again convicted. Following his second conviction, he again appealed. On 27 February 1986 the Court of Criminal Appeal quashed two of the convictions but affirmed the remaining two. Thus, the sentences for robbery whilst armed and possessing an unlicensed pistol were affirmed by the Court of Criminal Appeal and these were the convictions primarily relied upon to base the deportation order. They constitute the fourth set of convictions available for the purposes of the deportation order. While in prison, the applicant was convicted on 2 May 1984 of attempting to pervert the course of justice. The applicant was sentenced to two years imprisonment, cumulative upon the armed robbery sentence. This was the fifth deportable offence. These five convictions were all available even though the last one was on 2 May 1984 when the applicant was aged twenty-six and had been in the country for fourteen years. After the ten year legal residency point had been reached, the applicant continued to be charged and convicted for various crimes. On 17 December 1990 he was convicted of supplying heroin, inter alia, and was sentenced to a fixed term of three years imprisonment. On 24 January 1991 he was charged with possessing a prohibited weapon and possessing a firearm. He was sentenced to a term of two years imprisonment. Finally, he was convicted on 29 May 1992 of supplying a prohibited drug for which he was sentenced to a further two years imprisonment, to date from 13 November 1993. Accordingly, he was not eligible for release until November 1995. It followed that, during the period of approximately twenty-four years while the applicant had then been in this country, he had been in custody for a period totalling approximately thirteen years. On a number of occasions, when he had not been in custody, he had been on parole or had been at liberty as an escapee. Turning to the applicant's personal life, the Tribunal found that the applicant had experienced several de facto relationships. When first interviewed in 1978, the applicant had expressed the hope that he would one day marry Julie Gallaster, with whom he had had a relationship for the previous eighteen months. At interviews in 1983 and in 1986 he said that he had known Gail Pardoe since February 1981. Her boyfriend, Ray Weston, the father of Gail's child, Greta, was in prison and Mrs Pardoe had approached the applicant "to answer a few questions she had". A relationship had developed from there. A son, Richard, was born on 31 May 1982 when Greta was two years old. At an interview in May 1992 the applicant had said that the relationship with Ms Pardoe had lasted only from 1981 to 1984. At the time of this interview he said that he had had a relationship with Marian Rivers, whom he had known since 1990. In evidence before the Tribunal, the applicant said that the relationship with Ms Pardoe had not been terminated but, the fact that she lived at Tamworth, meant that he could see her only occasionally, having regard to his bail reporting conditions. It later emerged before the Tribunal that Ms Pardoe gave birth to a third child, Kayla, of whom the applicant was not the father, some four years after Richard had been born. Before the Tribunal, the applicant had agreed that his relationship with Ms Pardoe was "on and off" over a period of sixteen years. Often they were out of contact for lengthy periods. He had, in fact, not seen her for the previous two years, although they had corresponded. The longest period he had spent with Richard was for five weeks between November 1989 when he was out on bail awaiting trial, and November 1990 when he returned to custody. However, he had also corresponded with Richard and occasionally they had visited him in prison. Mr McMahon's reasons then described other aspects of the relationship with Ms Pardoe as follows: Ms Pardoe was not interviewed in 1992, prior to the making of the order under review, because at that time it appeared that the applicant's principal relationship was with Marian Rivers. She was invited to express her views on the possible deportation of the applicant, but declined to attend for an interview. Accordingly, the Tribunal had no evidence from Ms Pardoe as to any hardship which she might claim if the order were to be carried out. The applicant said that his mother had told him that she had spoken to Ms Pardoe, who had said that Richard had a lump on his arm and that she did not wish to come to the hearing. The applicant said that he had spoken to Ms Pardoe a week previously by telephone, and that she had agreed to come. None of this evidence was corroborated, the Tribunal found, by a bundle of 15 letters, dating from 1992 until late 1994, which the applicant tendered in evidence. The letters from Ms Pardoe and the three children indicated a continuation of a correspondence relationship. Most of Ms Pardoe's letters contained details of news about the children. Sometimes reference is made to the prospect of being reunited after the applicant is released from custody in November 1995. There was nothing in the correspondence, the Tribunal found, that might indicate that Ms Pardoe was even aware that a deportation order had been made, that there was real prospect of it being carried out, or that there had been an application to the Tribunal for a review of that order. Similarly, the applicant said that his plan on being released was to join Ms Pardoe and the children in Brisbane where they lived, and to take his mother with him. There was nothing in the letters, Mr McMahon said, to substantiate such a proposal. Although requests for money were made from time to time in the correspondence, clearly, because of the circumstances, it could not be said that Ms Pardoe or the children were financially dependent upon the applicant. Mr McMahon went on to refer to other aspects of the relationship between the applicant and his parents and his brothers which, for present purposes, are no longer material and need not be mentioned. Mr McMahon then addressed the risk of recidivism but it is not necessary that I refer to the detail of these findings at this stage. Mr McMahon then turned to consider whether there was evidence of any hardship to the two women who had been named in the previous interviews as persons with whom the applicant has had a relationship, as follows: "33. There is no evidence of any hardship to the 2 women who had been named at previous interviews, as persons with whom the applicant has had a relationship. There is no real evidence as to any hardship that might be caused to Ms Pardoe. As I have observed, I am not even confident that she knows of the existence of the deportation order. Certainly the applicant has not lived with her for many years and has not supported her financially, except in some sporadic way, where possible. I am prepared to assume that both she and Richard would prefer that the applicant stay in Australia upon the expiration of his sentence in November 1995. I do not have enough evidence, however, to be confident that if that expectation is not fulfilled, they will suffer any degree of hardship which would be outweighed by any of the considerations pointing to the desirability of the carrying out of the order. 34. Furthermore, whatever ties exist between the applicant and Ms Pardoe arose after he initially became liable for deportation, and particularly after he had received a warning of the possibility of that event. The fact that he ignored the warning and committed further crimes reinforcing the probability of his deportation, must be taken into account in assessing any hardship that might be suffered by Ms Pardoe whom he met for the first time well after the deportation possibility arose." Mr McMahon then expressed his final conclusions as follows: "36. I have concluded, in accordance with paragraph 9 of the Minister's guidelines, that the protection of the safety and welfare of the Australian community outweighs the hardship to which I have referred. The probability of recidivism is overwhelming. The applicant's list of convictions presents a table of crimes of escalating seriousness. The greater the potential effect on the community, or the greater the potential damage to the community (as paragraph 10 of the Minister's guidelines puts it) the lower is the acceptable level of risk that the person concerned will commit further offences. Armed offences and drug offences have capacity for inflicting considerable damage on the community. 37. Indeed they are singled out in paragraph 12 of the Minister's guidelines as peculiarly susceptible for basing a deportation order." THE MINISTER'S GUIDELINES The Tribunal referred to the Guidelines for deportation stated in the "Policy Statement by the Minister for Immigration, Local Government and Ethnic Affairs : Australia's Criminal Deportation Policy". Relevantly, those Guidelines are as follows: "Guidelines for deportation 9. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family. 10. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences. 11. Deportation of a person convicted of crime may be appropriate when a person: · constitutes a threat because there is a risk that he/she will commit further offences if allowed to remain; or · has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or · has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia. 12. Examples of serious offences which may render non-Australian citizens liable to deportation include: · production, importation, distribution, trafficking or commercial dealing in heroin or other 'hard' addictive drugs or involvement in other illicit drugs on a significantly large scale (persons who embark upon drug-related crime for financial gain show a callous disregard for insidious effects on the health and welfare of Australia's young people); this does not necessarily apply to persons who use hard drugs for their own consumption who were not involved in the above illegal actions. It would be invidious if non-citizen residents who seek to profit from the import or supply of drugs, whether or not that profit is motivated by their own need for illicit drugs, were likely to be allowed to remain in Australia. It is important both as a deterrent and to protect Australian society that it is clearly understood that a person convicted of drug trafficking, which puts at risk the very lives of young Australians, has no place in our society; · organised criminal activity (whether within Australia only or internationally); · serious sexual assaults whether or not accompanied by other violence (especially where there has been more than one sexual offence); · armed robbery; · violence against the person; · terrorist activity and assassination; · kidnapping; · blackmail; · extortion...". THE APPEAL FROM MR McMAHON'S DECISION In circumstances similar to those described in Vaitaiki v the Minister for Immigration and Ethnic Affairs, Beaumont J, 20 June 1997, unreported, by consent of the parties, an appeal from Mr McMahon's decision was allowed. Mr McMahon's decision was set aside and the matter was remitted to the Tribunal for reconsideration in accordance with law. THE SECOND DECISION OF THE TRIBUNAL (DR P GERBER) As has been noted, it is from the decision of the Tribunal, given on 26 October 1995, that the present appeal is brought. In its second decision, the Tribunal was constituted by Deputy President Dr P. Gerber. Dr Gerber's reasons can, so far as is material for present purposes, be summarised as follows: In the first place, Dr Gerber referred to the early history of the matter including the initial departmental assessment report, dated 21 September 1993, recommending deportation, which the learned Deputy President described as "careful, balanced and thorough." Dr Gerber then quoted paras 22, 23 and 24 of Mr McMahon's decision which I have already set out above. Dr Gerber then said: "8. It will be seen from the above that on the material before him, the learned Deputy President had no reason to conclude that the deportation of the applicant would result in Richard being deprived of a loving and caring father. Indeed, on the evidence before Mr McMahon, this man would seem to have been virtually a total stranger to his son and, given his long criminal record, a most unsuitable role model for Richard to follow." Dr Gerber went on to consider the relationship between Mr McMahon's decision and the subsequent judgment of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, with the consequence in the present matter that the parties consented to an order setting aside Mr McMahon's decision. Dr Gerber next discussed the reasoning in Teoh and the terms of the joint statement made on 10 May 1995 by the Minister for Foreign Affairs at the time, Senator Evans, and the Attorney-General at the time, Mr Lavarch, on the subject "International treaties and the High Court Decision in Teoh". Dr Gerber then said: "21. ....I am spared the necessity of exploring in detail the effect - if any - the decision in Teoh has on this case since I have concluded on the evidence that even if the interest of Richard and the other two daughters of Ms P were given the primary consideration and thus 'overtrumping', so to speak, the applicant's massive criminal record and likely recidivism, I find the children's connection with the applicant so remote, his potential influence on their development so harmful and the probability of him obtaining any meaningful access so unlikely, that whatever weight one attaches to their 'interest' cannot possibly tip the scales against his deportation. Put another way, given the remoteness of the relationship between the children and the applicant, and their lack of dependence upon him, it is difficult to construe this reference in any real sense as 'an action concerning children' within the meaning of Article 3 of the convention." Dr Gerber turned next to the position of Ms Pardoe and her son Richard and her two daughters as follows: "23. I now turn to Ms P, the mother of Richard and her two daughters. She now lives in Brisbane where she has made a new life for herself. She is thirty-two years of age, outgoing and vivacious and a person who obviously makes friends easily. She has never married. However, a new man has come into her life - Robert U - whom she loves and to whom she is engaged, with marriage likely to take place some time in the future. She deposed that all the children get on well with Robert U. It is against this background that I must look somewhat sceptically at her written statement (exh 'H') that the three children: 'all have a close relationship with Imad Salameh and regard him as their father. They continually show great interest in his welfare and are keen to have contact with him.... The children are very upset by the prospect of Imad being deported, particularly Richard. I had great difficulties managing Richard in late 1994 when he heard his father may be deported from Australia. I arranged for him to see his school counsellor but Richard did not relate well to him. Richard has settled a little now but I believe that this is at the prospect of having regular contact with his father after his release from gaol. Each of the three children have said to me on many occasions that if Imad is deported: 'I will go with him; he's my dad'. My life has taken a different direction from Imad's now, so it is unlikely that our relationship will resume. However, I appreciate the strong bond between the children and Imad and when he is released from gaol I will do my part to ensure that the children are able to maintain contact with him.' 24. A number of letters from Ms P to the applicant, written in 1994, were made exhibits. Two things emerge from these letters. Firstly, there is nothing in any of the corresponden[ce] to and fro which would support the assertion that Ms P was aware of the threat that the applicant may be deported (the deportation order was made on 2 October 1993). The letters are full of intimate trivia, Ms P noting, for example, that one of the girls has a loose tooth. In the circumstances, one would have expected some reference to 'deportation', the more so as Richard required counselling as the result of being told that his father may be deported. I also note Mr McMahon's reference to the fact - albeit hearsay - that Ms P did not wish to attend the first hearing in February this year because 'Richard had a lump on his arm'. The second thing to note is that Ms P's letters are stylistically far removed from her written statement, which bears all the hallmarks of being 'settled' by a more skilful draftsman (the applicant's solicitor visited her in Brisbane some time before the hearing, took notes and sent a draft statement to her for execution, which she admitted signing after only reading it 'fleetingly'). That statement contained two significant errors, subsequently corrected through her counsel at the hearing. I make no adverse findings against the witness based on these errors, albeit her written statement wears the colour of special pleading rather than representing an accurate account of what Ms P told the applicant's solicitor. 25. Ms P impressed me as an honest witness who did her best to tell me of the relationship between her and the applicant without exaggeration, as well as how she felt about the children's attitude to the applicant - all three, it seems, refer to him as 'daddy'. The eldest child, now aged 15, has left school and is working. Richard, now aged 13 years, goes to the local Sate school, as does the youngest daughter. As a single mother, Ms P has done a remarkable job bringing up three children by three different fathers (two in gaol and one dead). It is likely that her forthcoming marriage to Robert U will bring about a stability that an absent father and husband has previously failed to provide. It is not seriously suggested that the children will move to the applicant on his release from gaol. Indeed, counsel frankly conceded that the mother would never permit any of the children to move in with the applicant. Nor do I regard the applicant's statement of a possible move to Brisbane on his release as probable or even desirable. Indeed, if I were sitting in a different jurisdiction, I would have to consider seriously whether I would permit access to this father without the strictest supervision. 26. Turning to Richard, the evidence disclosed that he has seen his father on five occasions - once over Easter and on four prison visits. The lad gave the impression of being a well-adjusted youngster, fond of soccer and having many friends at school. When asked how he got on with Robert, he said 'alright'. I nevertheless got the impression that he was somewhat resentful of this new intrusion into the household where he had been the 'man' of the house, and that it may take some painful adjustment before he will settle down to the new - and to him - novel domestic arrangement. Having observed him in the witness box, I think it unlikely that he will remain at school much beyond the school leaving age and that he has every chance of becoming a useful and productive member of society provided that he does not associate with the 'wrong' company - his mother is very protective of his welfare and is certain to ensure that this will not happen. On that finding, I am satisfied that the deportation of the applicant is most unlikely to leave any lastings scars on Richard's psyche. Indeed, I would go further: I am fearful that any close contact between father and son is not in Richard's best interest." Dr Gerber then expressed his conclusion on this aspect of the matter as follows: "27. In the result, even on the view that Teoh requires me, as the final administrative authority reviewing the decision which may impact on Richard, to make his interest a primary consideration, still leads me to the conclusion that his best interest is not served by recommending against the deportation of his father. The suggestion that the deportation of the applicant has any significant - or indeed any - impact on the two girls is, in the circumstances outlined above, to say the least, absurd." Dr Gerber then addressed the separate legal objection to the making of the deportation order, that, in substance, it was unlikely that the deportation could in fact be executed. Dr Gerber said: "31. This point can be dealt with shortly. It does not appear to have been argued before Deputy President McMahon. However, since this is a hearing de novo, this is not relevant. The circumstances giving rise to this 'defence' arise from the fact that the applicant was born in Bethlehem, had his birth certificate stolen and all attempts to obtain a copy have proved abortive. For good measure, exh 1 is a document emanating from the Department of Foreign Affairs, dated 12 October 1995, presenting its compliments to the Embassy of the Hashemite Kingdom of Jordan and, after referring to earlier correspondence, seeks the assistance of the embassy 'in establishing whether Mr Salameh is entitled to Jordanian citizenship or can resume residence in Jordan. Mr Salameh is entitled to Jordanian citizenship or can resume residence in Jordan. Mr Salameh was born in Bethlehem on 8/5/8/58 and travelled to Australia on his mother's Laissez-Passe issued by the Jordanian government'. 32. A similar argument was advanced in the (unreported) decision of Purvis J (sitting as a Presidential Member of this Tribunal) in Tamayo and Department of Immigration (No N93/374 dated 23 December 1994). In that case, it was submitted that if the Tribunal were uncertain about the enforceability of the deportation order, it was within its discretion to revoke it. After an exhaustive review of the Migration Act and the decision in Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373, the learned Presidential Member concluded that: 'In the present application, the Tribunal is of the view that the potential for delay is not, in itself, sufficient reason to set aside the order.' I respectfully adopt that view in this case. In any event, the submission that the applicant's Jordanian nationality may not be capable of being established comes too soon in point of time to give rise to any reasonable uncertainty as to whether a deportation order can be effected. The letter to the Embassy was dated the same day as its tender before me and the attempts made by the applicant's father to obtain a copy of the son's birth certificate can only be described as 'desultory'. In the result, I find that the evidence of 'uncertainty' is insufficient to persuade me to invoke my discretion in the applicant's favour, albeit I accept that history has shown that those who claim to have been born in Bethlehem and have no documents to prove it are likely to have their status seriously challenged." Having referred to observations made by Brennan J in Salazar-Arbelaez v the Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100 that the duty of the Tribunal "is to apprehend what is an acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk", Dr Gerber said: "40. I respectfully adopt Brennan J's 'duty statement' of... the Tribunal's function in dealing with criminal deportation cases. Applied to this case, the evidence is overwhelming that the criminal record of the applicant, and his likelihood to continue to offend on release from prison is such that his continued presence in this country constitutes 'an unacceptable level of risk', a risk already apparent when the applicant appeared in the dock before Judge Torrington in 1985, who concluded that there was little likelihood that if paroled, the accused would not offend again. Mr Salameh's subsequent record amply justifies that observation. I also adopt the conclusion of Deputy President McMahon, who stated at the first hearing that the applicant: 'at the age of 37... must take responsibility for his own acts. He has known since 1977 that he is not an Australian citizen and that he is liable to deportation. It can not be thought that now, after all he has done, he can invoke the protection that might have been accorded many years ago to a youthful immigrant'." Dr Gerber summarised his conclusions as follows: "43. In summary, I find that the applicant is a sociopath who has made a negligible contribution to this community, has committed numerous serious offences and spent much of his residence in this country in gaol and is, as I find, likely to become an unrepentant recidivist. Anyone who has abused Australia's hospitality to the extent that this man has is estopped by conduct from relying on the 'doctrine' that the breaking up of a family is incompatible with the way 'a mature and civilised nation should act' (see per Murphy J, Re Pochi and Minister for Immigration and Ethnic Affairs (1982) 151 CLR 101 at 115). 44. Even if I am wrong in that view and were to apply the ratio of Teoh to this case, it barely effects the weight in favour of deportation when regard is had to the criminal history of the applicant, the harm likely to result from recidivism on the one hand, and the minimal claim of the children and his family on the other." THE APPLICANT'S GROUNDS OF APPEAL By his notice of appeal the applicant now relies on the following grounds: "(i) The Tribunal erred in considering that the Applicant was 'estopped' by his 'conduct' in relying upon his family ties, particularly his relationships with his son, in seeking to have the Respondent's decision set aside; (ii) The Tribunal erred in either: (a) finding that the Applicant's son's best interests were 'not served' by recommending against the Applicant's deportation; and/or (b) failing to advise the Applicant or his son that it proposed to make a finding in terms of (a) and failing to give the Applicant the opportunity to make submissions in opposition thereto; ..... (iv) The Tribunal erred in finding that the statement of the Minister for Foreign Affairs and the Attorney-General on 10 May 1995 rendered the High Court's decision in Teoh v. Minister for Immigration (1995) 128 ALR 353 a 'jurisprudential artefact'; (v) The Tribunal erred in failing to give reasons for the conclusion in (iii) and (iv); (vi) The Tribunal erred in not advising the Applicant that it proposed to 'look somewhat sceptically' at the written statement of Gail Pardoe; (vii) The Tribunal erred in not advising the Applicant that it proposed to refer to the findings of the Tribunal in proceedings No. 93/789 and giving him the opportunity to make submissions in relation thereto; .... (x) The Tribunal erred in concluding that the proceedings before it were not in 'a real sense an action concerning children' within the meaning of Article 3 of the Convention on the Rights of the child; (xi) The Tribunal erred in failing to advise the Applicant that it would rely on the fact that he was to face a further criminal charge after the conclusion of the hearing before it; ....." In his oral submissions, counsel for the applicant dealt with these grounds in a particular order and I will follow the same course in expressing my conclusions. CONCLUSIONS ON THE PRESENT APPEAL (a) Ground (vi) - whether the Tribunal erred in not advising the applicant that it proposed to "look somewhat sceptically" at the written statement of Gail Pardoe (i) Background As has been seen in para 23 of his reasons Dr Gerber said: "It is against this background [previously described by Dr Gerber] that I must look somewhat sceptically at [Ms Pardoe's] written statement (ex "H") that the three children 'all have a close relationship'..." (see above). In order to understand the context in which these observations were made by Dr Gerber, reference should be made to Ms Pardoe's written statement (exhibit H) and to her oral evidence in chief in that connection. The statement which became exhibit H was as follows: "STATEMENT DATED 26TH SEPTEMBER 1995 BY GAIL PARDOE OF 44 ADELAIDE STREET, KINGSTON QUEENSLAND I was born on 15th August 1963. I am in receipt of a D.S.S. pension. Imad Salameh and I had a full-time relationship in 1980 and 1981 when Imad was not in gaol. For much of the period since that time Imad has been in gaol. I kept in touch with Imad in gaol by telephone and by letters and regular visits. Whenever Imad was not in custody our relationship resumed. Imad assisted the children occasionally by contributions of food, outgoings, clothes and some money. In early 1994 I moved from Tamworth to Brisbane. I last saw Imad in about August 1994. Imad sent money to me so that I could travel from Queensland to his family home at Guildford by bus. I then travelled with Imad's mother Janet Salameh and the children to visit Imad at Goulburn Gaol. The children either remained in regular contact with Imad by telephone or letters until about February of this year when Imad was moved to Lithgow goal. The children and I ceased sending letters to Imad at about that time because he was not receiving our mail and there was no point in sending it. I do not know why he did not receive our mail. In 1994 we made plans to marry but with Imad being moved around between gaols it was difficult to keep in contact with him and the marriage did not eventuate. Early this year I met a foundry worker, Robert Utz. We are in a defacto relationship and have become engaged but we have no firm marriage plans. My three children, Greta age 15 yrs, Richard age 13 yrs (Imad's natural son) and Kayla age 10 yrs. All have a close relationship with Imad Salameh and regard him as their father. They continually show great interest in his welfare and are keen to have contact with him. Imad's moving gaols, my present home location and my financial circumstances have not permitted this in recent times. The children are very upset by the prospect of Imad being deported, particularly Richard. I had great difficulties managing Richard in late 1994 when he heard his father may be deported from Australia. I arranged for him to see his school counsellor but Richard did not relate well to him. Richard has settled a little now but I believe that this is at the prospect of having regular contact with his father after his release from gaol. Each of the three children have said to me on many occasions that if Imad is deported: 'I will go with him; he's my dad'. My life has taken a different direction from Imad's now, so it is unlikely that our relationship will resume. However, I appreciate the strong bond between the children and Imad and when he is released from gaol I will do my part to ensure that the children are able to maintain contact with him." The statement was signed by Ms Pardoe, dated 5 October 1993, and filed by Messrs Peters Crompton Worrall, solicitors for the applicant. When called, after identifying her signature on exhibit H, Ms Pardoe gave this evidence: Q. "Could you just look at the first paragraph, please, in the third sentence of the first paragraph on the first page you state that you met Mr Salameh and you had a full-time relationship in 1980 and 1981 when he was not in gaol? A. Yes. Q. Do you see that? A. Yes. Q. Then later on in the paragraph you say: 'Whenever Imad was not in custody our relationship resumed'. Do you see that, the same paragraph? A. Yes. Q. Is that last statement there completely correct, that whenever you were not in custody, after that time the relationship resumed? A. No, we didn't resume our relationship. Q. What was your contact with Imad after 1980 to 1981? A. Through the children. Q. How did you get on with him? A. Good, we're friends. Q. If you could just go down to the fourth paragraph, do you see that is the one that begins, 'In 1994'? A. Yes. Q. You state in that paragraph you 'met a foundry worker, Mr Robert Utz', do you see that? A. Yes. Q. The last sentence you state, 'We are in a de facto relationship and have become engaged, we have no firm marriage plans', do you see that? A. Yes. Q. Is that true except that you are not in a de facto relationship, that is, not living together? A. No, we're not in de facto. Q. In the next paragraph, do you see that? A. Yes. Q. You state you have got three children, Greta, Richard aged 13 and Kayla, do you see that? A. Yes. Q. And state that, 'all have a close relationship with Imad and regard him as their father'? A. Yes, mainly Greta and Richard. Q. Does Kayla regard Imad as her father? A. Yes. Q. What does she call him? A. Daddy. MR HARDMAN: With respect, I object to that evidence, Deputy President, Kayla I understand is not going to be called, that is hearsay evidence and especially in relation to the importance of this evidence, I would submit that that because of its relation to Teoh and because of the extent that this case is going to depend upon evidence of that nature, that that evidence should not be allowed. ..... Q. THE D. PRESIDENT: Well I am sorry to ask the question about paternity, but who is Kayla's father? Q. MR BEECH-JONES: The natural father of Kayla is not Imad, is that right? A That is right. Q. THE D. PRESIDENT: Looking at the chronology which has not yet been established, Kayla would have very little opportunity to see the applicant? A. Yes she has seen him quite a few times when I have been - bought the kids down to see him. Q. When you brought him down to Sydney or to gaol? A. Yes when I have brought the children from Queensland to see Imad, I have brought Kayla as well. Q. On how [many] occasions would that have taken place? A. About four or five." After hearing further argument on the admissibility of the evidence, the learned Deputy President said: "THE D PRESIDENT: Well look, I will let the Daddy bit in but as to how she feels about this man is not a matter which I am prepared to accept through this witness." The transcript then records the following: "Q The D. PRESIDENT: Did I understand you correctly to say that the statement: 'Whenever Imad was not in custody our relationship resumed' has been resiled from? A. MR BEECH-JONES: Yes it has been resiled from to the--- Q. THE D. PRESIDENT: As well as the statement that there is no de facto relationship between this witness and this other gentleman? A. MR BEECH-JONES: Yes, that is not a de facto relationship; there is a relationship and they are engaged but they are not de facto in the sense of living together. Q. THE D. PRESIDENT: Yes, it is a matter of some interest as to how this statement came about which contains such major inconsistencies. A. MR BEECH-JONES: Well in my submission given the fact that Ms Pardoe lives in Queensland - you are not on the phone in Queensland are you? A. No. Q. THE D. PRESIDENT: But you did sign it? A. MR BEECH-JONES: She did sign it; and now some matters have been brought to her attention and she has considered what is in it and has resiled from the - qualified the statements. With respect, the qualifications are firstly the fact that she is in a de facto relationship is a--- Q. THE D. PRESIDENT: I accept that is not of great relevance to me, but the other statement is because it goes very much to the thrust of the case you are seeking to make out. A. MR BEECH-JONES: Well with respect it does not; the thrust of the case concerns a relationship between Mr Salameh and the children not between Mr Salameh and Ms Pardoe, and if it is against me, given the fact that I have brought her attention to it. We are not in the business of presenting any - seeking to present confused facts, and to one extent as to her--- Q. THE D. PRESIDENT: No but this witness has made a statement which contains two major inconsistencies, even though she is not on the telephone. And somebody must have presumably have taken instructions. A. MR BEECH-JONES: Yes, and with respect those are matters that could have been stated they could have been confused. THE D. PRESIDENT: Yes they could have. Yes all right." Ms Pardoe was further re-examined in chief about the preparation by Mr Worrall, the applicant's solicitor, of her statement, that is, exhibit H. She said that her first contact with Mr Worrall was about a week before she signed the statement prepared by him. Her examination in chief then proceeded as follows: "Q. In your statement this morning you told the tribunal that you did not resume your relationship with Imad after 1980-1981? A. That's right. Q. How is it that you came to sign your statement when it said that? A. I don't know, I think I was surprised because I did not know that it had anything to do with us, this had anything to do with myself or the children, and I was just surprised to have someone that wanted to talk to us about it. Q. Have you ever been a witness in court proceedings before, anything to do with court proceedings? A. No. Q. THE D. PRESIDENT: What do you mean by 'had nothing to do with us'? A. I didn't think we would have to come as witnesses because I didn't really understand the full extent that was happening, just that he was going to get deported but I didn't think we would have to come as witnesses." Ms Pardoe was cross-examined by Mr Hardman, representing the Minister, as to the preparation of exhibit H as follows: "CROSS-EXAMINATION Q. MR HARDMAN: Ms Pardoe, when you made the statement was that in the presence of Mr Worrall? A. Yes. Q. So Mr Worrall came up to Brisbane, did he? A. Yes. Q. Did he visit you at your house or did you arrange somewhere to meet? A. My mother brought him around. Q. How long did Mr Worrall spend with you? A. About two and a half hours. Q. Was it a case of you telling Mr Worrall about the nature of your relationship with Mr Salameh? A. Yes. Q. Would Mr Worrall ask you questions about that relationship and about other circumstances? A. Yes. Q. Was a statement prepared then? A. No, he wrote it in a book. Q. When was the first time that you saw the statement in its current form? A. As he was writing it he showed me what he wrote. Q. Then at some time later you received a typed copy in the mail? A. Yes. Q. What did you do when you received the typed copy, you read it obviously? A. I didn't read all mine, I didn't have time, I read the children's out to them and they signed theirs and I just read bits of mine and I just signed it. Q. What do you mean you just read bits of yours? A. I didn't have time, I was busy at the time, I had to go up to the school for a meeting so I was busy and I was in a rush when I got it. I basically knew what I had said to him and I just went quickly through it and signed it." Later Ms Pardoe gave this evidence in cross-examination: "Q. MR HARDMAN: Are you saying that you did not say it to Mr Worrall that your relationship resumed on every occasion that Mr Salameh was released from gaol? A. That's right. Q. Do you agree that that reference to Mr Salameh or your relationship resuming on each occasion that he was released from gaol appears in the first paragraph of that statement? A. Yes. Q. So, are you suggesting that you did not even read the first paragraph of the statement when you had it at your house or something in the vicinity of five days? A. I just read through it. Q. And are you suggesting---? A. I have more important things to do. Q. So is it the case that you do not view these deportations proceedings seriously? A. Yes, I do. Q. Well, how seriously do you regard them? A. It affects my children. Q. Well, are you saying you do not regard them seriously enough to read a statement which is a page and a quarter? A. I read through it and I signed it." The transcript records the following at the end of the cross-examination: " [MR HARDMAN]: I have no further questions, Deputy President. THE D. PRESIDENT: Ms Pardoe, you have told us that you loved Mr Utz and ultimately, I presume, that you intend to marry him, do you? A. Yes. Q. Is that likely to be in the near future or---? A. I'm not sure yet, probably. Q. I see. Have you discussed having a family together? A. No, we are not going to have any children, three is enough. Q. I see. And he is very happy to take the three children along? A. Yes. Q. They get on well with him? A. Oh, the two girls do. Richard, sometimes, not all the time. Q. Yes, I have nothing else. Mr Jones, any re-examination? A. MR BEECH-JONES: No, I have no re-examination, Mr Deputy President". Counsel for the applicant, having indicated that he proposed to call Mr Worrall, participated in the following exchange: "Q. THE D. PRESIDENT: Is this in relation to--- A. MR BEECH-JONES: The drafting of the statement since it has turned out to be an issue. Q. THE D. PRESIDENT: Well, I thought it had been resolved by the witness having said that she did not say that. A. MR BEECH-JONES: If that is the position--- Q. THE D. PRESIDENT: She has not been challenged on that. A. MR BEECH-JONES: ---and I notice there was never one matter put to her that was suggested that it was not wrong then I will not need to call Mr Worrall, but--- Q. THE D. PRESIDENT: I thought there was no need in the circumstances--- A. MR BEECH-JONES: If everyone is happy with that, then I will not--- Q. THE D. PRESIDENT: Well, I am happy and I do not suppose Mr Hardman's happiness is necessarily a major concern of mine but it was not challenged, the witness denied having said it and that was it. At best she is guilty of carelessness. A. MR BEECH-JONES: And that nothing was put to her to suggest her evidence was not correct either. Q. THE D. PRESIDENT: That is correct. A. MR BEECH-JONES: Well, in that case, I do not need to call Mr Worrall." In the course of counsel's submissions to the Tribunal, Dr Gerber raised the question of the applicant's access to Richard in the following exchange: "THE D. PRESIDENT: I am wondering what kind of access would be available to this lad on the assumption that the mother will marry Robert and live in Queensland? MR BEECH-JONES: Well, to that end there are two possibilities that were raised with Mr Salameh. Firstly, that is, if he found work in Brisbane he would have that form of access, and if he lived in Sydney he would, as he did before when he lived in Sydney and was on bail conditions three times a week but still found the opportunity to go to Tamworth. THE D. PRESIDENT: I suppose, really, the issue of the mother's attitude to access was never really explored? MR BEECH-JONES: Except this. It is stated in her statement in the last paragraph: My life has taken a different direction from Imad's now, so it is unlikely that our relationship will resume. However, I appreciate the strong bond between the children and Imad and when he is released from gaol I will do my part to ensure that the children are able to maintain contact with him.' And you might infer to the fact that she is willing to come down from Queensland on the bus, and even though her relationship with Mr Salameh is over she is nevertheless quite happy to acknowledge his role in maintaining contact with her children. Open and frank about that; never had any trouble with that, notwithstanding the fact that their relationship is over and she has met someone else. THE D. PRESIDENT: Yes, I am prepared to accept that statement. It looks more like Mr Worrall - the deponent - and she does not express it in the terms I would have thought - but in the absence of anything to the contrary I am prepared to assume that access would be readily facilitated". (ii) The applicant's submissions on ground (vi) On behalf of the applicant it is now submitted that the clear effect of the comments of Dr Gerber, made when it was indicated that the applicant wished to call his solicitor, was that any doubts concerning the veracity of Ms Pardoe's statement had been clarified, with no issues concerning its veracity remaining. Despite the exchanges between Dr Gerber and counsel for the applicant noted above, in his reasons for decision, Dr Gerber stated that he would "look somewhat sceptically at her written statement" (see para 23); and he observed that, in his view, the written statement "wears the colour of special pleading rather than representing an accurate account of what Ms P told the applicant's solicitor" (see para 24). In further discounting the matters set out in exhibit H, the applicant submits, Dr Gerber referred to the fact that correspondence between the applicant and Ms Pardoe in 1994 did not reveal that Ms Pardoe was aware of the fact that the applicant would be deported. Ms Pardoe was not cross-examined in relation to her knowledge in 1994 of the fact that the applicant would be deported. Further, Dr Gerber referred to a statement in Mr McMahon's decision concerning the reasons why Ms Pardoe did not wish to attend the hearing which preceded the making of the first Tribunal decision (see para 24). Again, Ms Pardoe was not cross-examined in relation to this matter, although it is difficult to see what its significance would be. Counsel for the applicant submits that the discounting of the statement of Ms Pardoe and the other comments made in para 24 of Dr Gerber's decisions, significantly undermined a central aspect of the applicant's case before the Tribunal. Exhibit H contained evidence as to the nature of the relationship between the applicant and the children. Further, Dr Gerber raised the question whether the applicant would be permitted access to the children "without the strictest supervision" (see para 25), when the written statement and the evidence of Ms Pardoe clearly indicated that she had no difficulty with the applicant having contact. In essence, it is submitted for the applicant that the conduct of the Tribunal, in the light of the subsequent findings and comments in its decision, constituted a breach of the rules of natural justice. Counsel relied upon Kunz v FCT (1996) 41 ALD 533 and Amrit Lal Narain v Parnell (1986) 9 FCR 479 in this respect. (iii) Conclusions on ground (vi) I accept, without hesitation, that the applicant had a right to a fair hearing and that, as an incident of this right, the applicant was entitled to a reasonable opportunity to present his case (see s.39(1) of the Administrative Appeals Tribunal Act 1975; see alsoMark Aronson & Bruce Dyer "Judicial Review of Administrative Action" at 562-3 and the cases there cited). But I am unable to accept that the applicant was denied natural justice in the respects now suggested. In assessing whether there has been a denial of fairness in the hearing process, regard must be had to all the circumstances. Where the circumstances are complex, the task of evaluating whether fairness has or has not been observed may be a difficult one. Questions of degree may arise for determination, in the context of the assessment of the real significance of what happens in the course of a quasi-litigious process of the present kind which, by its nature, is a dynamic and fluid process in which the object of all those involved is to isolate the real or substantial issues. This is never a simple task in a case such as the present. In my view, the nature of the dispute, as a complex one, is legitimately taken into account in the present context. It is one thing to isolate a factor as indicative of fairness where the issue is straight forward or clear cut; it is another thing to attempt that exercise where the case, as this was, is complex. Although I accept that questions of degree may be involved, I am not persuaded that the applicant was unfairly treated in the manner now suggested. The applicant knew that his application for review before Dr Gerber was opposed on many substantial grounds. The previous decision of the Tribunal, amongst other things, must have made that apparent. I note in passing in this connection that, by the provisions of s 23B of the Administrative Appeals Tribunal Act, it is provided as follows: "SECTION 23B RECONSTITUTED TRIBUNAL MAY HAVE REGARD TO RECORD OF PREVIOUS PROCEEDING 23B. If a proceeding is reheard by the Tribunal, the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal as previously constituted including a record of any evidence taken in the proceeding." In the present matter, the applicant was able to call witnesses and did so freely. The only exception that might be suggested is that, although an indication was given of an intention to call the solicitor, Mr Worrall, on a collateral point, this proposal was not proceeded with, after aspects of the matter were discussed. It is not at all clear how any of the evidence of the solicitor on the point mentioned by the applicant's counsel could have been of assistance to the Tribunal. On any view, it was a collateral question. Ms Pardoe had already given her version of the circumstances in which the statement had been prepared. She had given her evidence on the relevant matters before the Tribunal and been cross-examined. How it could be said, that further exploration of the steps taken in the process of preparation of her witness statement, could assist the Tribunal in forming any view on the real issues before it, is not apparent. This would have been a difficult area to pursue in the ordinary course of litigation; in the case of a quasi-judicial body, such as the Tribunal, which is not bound by the rules of evidence, such material would, in my opinion, have simply not have been helpful in the decision-making process. It may, of course, have been a different matter if Ms Pardoe were not available to be cross-examined, but that is not this case. It was made obvious to the applicant at all times that his assertion of the existence of a meaningful relationship with Ms Pardoe and her three children, would be hotly disputed. When Ms Pardoe came to give her evidence, there was confusion on the applicant's side of the record arising out of a truly collateral aspect, namely, the process of preparation of the statement. This certainly did not assist the smooth progress of the hearing. It also provided, I think, the true origins and context in which this ground of appeal is now advanced. In my view, it is without merit and, when regard is had to the whole of the surrounding circumstances, I do not think that the Tribunal unfairly treated the applicant on this account in any respect. I note that a case of apparent bias is not suggested (cf. Re Keeley; Ex parte Ansett Transport Industries (Operations) Pty Limited (1990) 64 ALJR 494). Moreover, in my view, the cases including Kunz and Narain, above, are distinguishable for present purposes. None of them has the complex and collateral features of the present case. To the contrary, they are cases of a straightforward refusal of the body in question to permit a party to present a case on one of the principal issues in the proceedings. In Narain, Burchett J said (at 485): "The duty to accord natural justice has also been referred to as a 'duty to act fairly': see, for example, Kioa v West (Minister for Immigration and Ethnic Affairs) (1985) 60 ALJR 113 at 127; Wheeler v Leicester City Council [1985] 3 WLR 335 at 338-340. The exemplar of one kind of breach of natural justice is a denial of an opportunity to be heard. In this case the applicant was heard, but on an issue which assumed he would be granted bail, and without any notice either that bail was opposed or that it was intended to treat the matter as entirely unaffected by the earlier decision to grant bail. In my view the duty of fairness demanded he be told in the clearest terms that he must call all his evidence over again. I should in this matter accept the law as stated in the Nottingham Justices case, but in any event it so clearly represents virtually universal practice that a departure from it, without adequate warning, would be highly likely to mislead a party into failing to present all his evidence. In Kioa's case (supra) at 349, Mason J referred to 'the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it'. The circumstances of the present case conspired to ensure that the applicant's attention was on one issue, while his application was rejected upon another issue to which his case was not directed. His opportunity to be heard was an illusion: cf Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821." However, it cannot be said that there was anything illusory about the present applicant's right to be heard. In Kunz, a statement of an important witness was admitted into evidence over an objection that it should not be admitted because the witness making the statement was not available for cross-examination. However, in the Tribunal's reasons for decision, the Tribunal said this: "65. During the heat of battle, I decided to accept the tender, mindful that I am not strictly bound by the rules of evidence and that 'Hamlet's ghost' may shed some light on the events. On more mature reflection, I believe I should have rejected it. Right or wrong, having now looked at this exhibit, I am satisfied that, in any event, I can give no weight to its contents, if only because it contains matters which, as a matter of procedural fairness, should be subjected to cross-examination. For good measure, the statement contains critical allegations which were not raised in evidence. Thus, it is stated that the proceeds from the sale of mother's estate, estimated at $300,000, was allegedly paid in cash 'over a period of 2 years' and that the racing partnership between Joseph K and T resulted in a win of some $250,000 at odds of 5/2 on a horse called Washington State. This major win was not mentioned by T in his evidence, despite the fact that he must have had access to Joseph K's statement for some months prior to the hearing." On the appeal from the Tribunal, Jenkinson J said (at 537-8): "It seems likely, but I am not certain, that the 'procedural fairness' the tribunal had in mind was fairness to the respondent. Whether that be so or not, to deny Ex AK evidentiary significance because the statements it contains should have been, in the tribunal's opinion, the subject of cross-examination, and not to reconvene the hearing and inform the applicant's counsel of that conclusion, was in my opinion to deny the applicant procedural fairness in the circumstances of this case. When the document was received in evidence no application was made by counsel for the commissioner that the maker of the statement b[e] made available for cross-examination. The applicant and his counsel were in those circumstances entitled to expect that Ex AK would not be denied evidentiary significance for the reason stated by the tribunal. If the tribunal considered that for that reason the document should be denied evidentiary significance, procedural fairness to the applicant required that the hearing be reconvened and the applicant's counsel informed of that conclusion, so that the applicant could consider whether to apply for leave to re-open his case, in order to adduce other evidence, tending to establish the existence of the facts stated in the exhibit, whether by Mr Beljajev or by another or others. The extent of what procedural fairness would have required of the tribunal would not in my opinion have enabled the applicant to adduce evidence of facts not comprehended by the statements in Ex AK. The applicant by his counsel had made his case, and was not entitled to expect that, because of the opinion which the tribunal had formed, he would be free to enlarge or vary that case. What he could expect - as he could have expected if tender of the document had been rejected - was that he would be entitled to essay proof of the statements of fact contained in the document by the oral testimony of Mr Beljajev or of other witnesses. (That is of course not to deny the existence of a discretionary power in the tribunal, if the hearing had been reconvened for the purpose for which I have held that it should have been reconvened, to permit the applicant to essay proof of other facts, nor to deny the existence of a discretionary power to set a limit to the time within which Mr Beljajev must be available to give evidence). The tribunal's failure to reconvene the hearing for the purpose I have identified was in my opinion an error of law which vitiated the tribunal's decisions. It also constituted a failure to 'ensure that every party... is given a reasonable opportunity to present his case', in contravention of s 39 of the Administrative Appeals Tribunal Act 1975 (Cth). The decisions should be set aside and the matters for review remitted to the tribunal." Again, the case is distinguishable having regard to the straightforward nature of the issue involved. Reference was also made for the applicant to Century Metals and Mining NL v Yeomans (1989) 100 ALR 383. There Fisher, Wilcox and Spender JJ said (at 413): "We agree that an obligation to accord a hearing does not usually carry with it an obligation to direct the attention of an affected person to omissions in his or her case: see Sullivan v Department of Transport (1978) 20 ALR 323 at 343; Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN 13. However, in the present case the Minister did not merely promise an opportunity for the various proponents to put their cases. He promised an independent, impartial and thorough assessment; that is, that the various proposals would be thoroughly evaluated by a person who was independent of DASETT and who was impartial. The Century consortium had a legitimate expectation that this promise would be honoured." But, in the present case, no such promise was given nor was it appropriate that it be given. Another example of a straightforward or clear-cut situation is Dobbie v The Secretary, Department of Social Security (1995) ASSC ¶92-137. It was there held that procedural fairness had been denied to a party when the Tribunal made a finding before the party had been given an opportunity to make final submissions on the principal issues before the Tribunal (see per Black CJ at 84, 269-70; per Heerey J at 84, 275-6). This is far removed from the present case. Not only did counsel for the applicant have an opportunity before the Tribunal to make full submissions on all the issues, but it will be recalled that in his reasons, Dr Gerber said (at para 24) "I make no adverse findings against the witness based on these errors [in the statement]". In those circumstances I am not satisfied that, in this context, the applicant was denied procedural fairness. (b) Ground (vii) - whether the Tribunal erred in not advising the applicant that it proposed to refer to the findings of the Tribunal constituted by Mr McMahon and giving the applicant the opportunity to make submissions in relation thereto (i) Background At the commencement of the proceedings before Dr Gerber, there was a discussion concerning the use that could be made of the findings of Mr McMahon, as follows: "THE D. PRESIDENT: My recollection of Deputy President McMahon's decision is there is no reference to any difficulties, mechanical difficulties in relation to the procedure of deportation, is there? MR BEECH-JONES: As far as I can recall, no, there is no reference in there. THE D. PRESIDENT: Well, was it argued? MR BEECH-JONES: It was not raised by Mr Salameh. THE D. PRESIDENT: Well, on what basis was the ground of appeal? MR BEECH-JONES: There was nevertheless evidence before him which would suggest that that was a matter he should have taken into account and did not. THE D. PRESIDENT: I see, independently of any submission by counsel? MR BEECH-JONES: We did not have counsel. THE D. PRESIDENT: I see, yes. MR BEECH-JONES: He was unrepresented. THE D. PRESIDENT: And that ground is persisted with today? MR BEECH-JONES: Yes, but we are now reviewing Mr Deputy President's. I now make the submission, the substantive submission that you should take that into account. THE D. PRESIDENT: Well I take it that both parties propose to proceed as a hearing de novo? MR BEECH-JONES: Quite so. THE D. PRESIDENT: I see, and I am to ignore the decision of Deputy President McMahon with respect to all aspects of his decision? MR BEECH-JONES: Quite so. THE D. PRESIDENT: Including the record of criminal convictions which is part of your chronology? MR BEECH-JONES: Yes. THE D. PRESIDENT: I put that decision aside. MR BEECH-JONES: Quite so, that will be my submission that you are obliged to do that. THE D. PRESIDENT: I see, yes. MR BEECH-JONES: Now, whether - if either party wants to tender material that was before the Deputy President on your hearing do novo, well, that is a different question and no doubt each party will take their own course on that. Could I just say as to what happened with the appeal, the appeal never got to formal argument, the department conceded the appeal when the matter came on a first return date." Later the following exchange occurred: "MR BEECH-JONES: I think so. Could I just indicate this Mr Deputy President. I would object to Mr Deputy President McMahon's decision being an exhibit or being considered to be in evidence. THE D. PRESIDENT: Well if it is a hearing de novo and by consent the decision is vacated so far as the parties are concerned. I do not suppose it - it is no more than an opinion expressed by a colleague of mine some months before." (ii) The applicant's submissions on ground (vii) On behalf of the applicant, it is submitted that the clear effect of those exchanges between Dr Gerber and counsel for the applicant was that Dr Gerber would not have regard to the findings of Mr McMahon. However, it is submitted for the applicant that Dr Gerber did in fact do that. Reference is made in this connection to para 7 of Dr Gerber's reasons as follows: "7. The application was listed before Deputy President McMahon on 6 February 1995 and on 15 February 1995 the learned Deputy President affirmed the decision under review. After setting out the applicant's appalling criminal record in greater particularity than I have done (I gratefully adopt his findings), Mr McMahon considered the various de facto relationships in which the applicant had been involved and the possible implications his deportation may have on any of the parties who may be affected by such an order. Thus, whilst Mr McMahon noted that the applicant was the father of Richard by Ms P, it is now alleged that the learned Deputy President had failed to deal with the possible impact which the deportation of the applicant may have on Richard. I therefore propose to set it out the relevant extract of his decision in full." (Emphasis added). It will be recalled that, at this point of his reasons, Dr Gerber then set out paras 22-4 of Mr McMahon's reasons. However, Dr Gerber followed this extract with what is set out in para 8 of his reasons which I have quoted above (at p 7). On behalf of the applicant, counsel also refers in the present connection to the circumstance that, when expressing scepticism in relation to the evidence in the statement of Ms Pardoe, Dr Gerber noted (at para 24) a reference in Mr McMahon's decision that "Ms Pardoe did not wish to attend the first hearing in February of this year because Richard had a lump on his arm". Again, it is submitted for the applicant that this amounts to a breach by the Tribunal of the rules of natural justice. (iii) Conclusions on ground (vii) In my opinion, procedural fairness was not denied to the applicant in the respect now suggested. The provisions of s 23(b) of the Administrative Appeals Tribunal Act have already been set out. In my view, it follows from those provisions, that as a matter of power or jurisdiction, it was open to Dr Gerber to have regard to any record of the proceedings before Mr McMahon. However, it should be accepted that the existence of this power or jurisdiction does not detract from the universal implied obligation imposed upon a quasi-judicial tribunal to observe the rules of natural justice. But, in my view, a reading of the reasons of Mr McMahon and of Dr Gerber on the matters now in issue indicates that the only material relied upon by Dr Gerber that appeared in Mr McMahon's reasons, was the statement by Mr McMahon of the undisputed criminal record and history of the applicant. It is clear from a reading of the reasons of Dr Gerber as a whole, and, in particular of those parts of the reasons which I have either summarised or quoted, that Dr Gerber well understood his obligation to give independent consideration to each of the matters that were truly contentious. It is equally apparent that the chronology and details of the applicant's criminal record and history were not contentious. As to the reference by Dr Gerber to the reason why Ms Pardoe did not attend the first hearing, for the reasons given in dealing with ground (vi), I do not see this as a denial of procedural fairness. Ultimately, this question became bound up with the credit of Ms Pardoe and, since, as I have noted, Dr Gerber accepted her personal credibility, no injustice has been done to the applicant in this respect. (c) Ground (xi) - whether the Tribunal erred in failing to advise the applicant that it would rely on the fact that he was to face a further criminal charge after the conclusion of the hearing before it. (i) Background During the proceedings before Dr Gerber, there was discussion concerning an outstanding charge against the applicant which was due to be heard shortly after the proceedings were terminated. The discussion was as follows: "MR HARDMAN: Could I explain the situation in relation to his certificates of conviction. Deputy President, I obtained them just prior to the hearing and I have indicated to my friend that I intend to tender some additional certificates of conviction. They are currently on the T documents which might assist you. THE D. PRESIDENT: Yes, but do you accept the submission that since November 1987 or thereabouts he has not offended, other than these very, very minor infractions within the prison system itself which I propose to ignore. MR HARDMAN: And the charge which is outstanding. THE D. PRESIDENT: And the charge outstanding which currently is merely a charge. MR HARDMAN: Yes. THE D. PRESIDENT: Yes." Later, the following exchange occurred; "MR HARDMAN: Yes, absolutely. Well there are matters which are outstanding of course. THE D. PRESIDENT: I cannot take any notice of those." At the conclusion of the submissions of counsel for both parties, the Deputy President said this: "THE D. PRESIDENT: Gentlemen, thank you both for your not inconsiderable assistance. This matter came to me suddenly, it will take me some weeks before I will be able to hand down my decision - I suspect it might be after your client will be dealt with on that 1994 charge, but that is neither here nor there. I will try and get the decision out by the end of the month, if I can." In the Tribunal's reasons for decision, Dr Gerber said this: "22. Turning to the oral evidence adduced before me, the applicant's father and mother (both naturalised Australian citizens) were called to depose what alleged hardship a deportation of their son would have on their lives. It may well be, assuming that the applicant will shortly be released from gaol (by no means certain - he is facing a serious criminal charge later this month), that he would help his ailing mother with such things as shopping and looking after the garden. However, I could not help noticing the pained expression on her face when confronted with litany of her son's long criminal record." (ii) The applicant's submissions on ground (xi) It is submitted on behalf of the applicant that, by making references to this charge, Dr Gerber breached the rules of natural justice. It is submitted that, had the Tribunal indicated any concern in relation to the charge, the proceedings could have been stood over until hearing of the charge was completed. It is said that, in fact, the applicant was acquitted of the charge. (iii) Conclusions on ground (xi) In my opinion, there has been no denial of natural justice or of procedural fairness in this connection. It is plain that Dr Gerber made only a mere passing reference to the charge in the course of setting out his findings in relation to the evidence of the applicant's father and mother. Dr Gerber made no finding in this area which could be said to have led to the applicant suffering any adverse affect. (d) Grounds (i), (ii), (iv), (v) and (x) - whether Dr Gerber interpreted and applied the Convention correctly in the light of the decision in Teoh. I will deal with these grounds of appeal together: (i) Background and submissions on grounds (i), (ii), (iv), (v) and (x) Counsel for the applicant referred to the discussion by Dr Gerber, at some length, concerning the Convention, the High Court decision in Teoh, and the joint statement of the then Ministers dated 10 May 1995. It is not necessary that I attempt to summarise these observations which appear in paras 10 to 20 inclusive of Dr Gerber's reasons. On behalf of the applicant, it is submitted that the observations may be summarised so far as they impact adversely upon the applicant as follows: "(i) The joint statement had the effect of rendering the decision of the High Court in Teoh 'a jurisprudential artefact': para 18, p 12; (ii) By reason of his criminal behaviour the Applicant 'is estopped by conduct' from relying on the 'doctrine' that the breaking up of a family is incompatible with the way in which a mature and civilised nation should act: para 43, p 20; (iii) even if the interests of his son Richard, and the other two daughters of Ms. P. were given 'the primary consideration', the Applicant's massive criminal record and likely recidivism, his connection with the children being 'so remote', his potential influence on their development being so harmful and the probability of him obtaining any meaningful access is so unlikely that whatever weight was attached to their interests that could not weigh against deportation: para 21, p 13; (iv) putting (iii) 'another way', the remoteness of the relationship between the children and the Applicant and their lack of dependence upon him had the effect that the proceedings were not 'in any real sense' an action concerning children within the meaning of article 3 of the Convention: para 21, p 13; (v) even if the AAT was obliged to consider the impact upon Richard as a 'primary consideration' his best interest is not served by recommending against the deportation of his father: para 27 p 15." Counsel then made the following submissions: "13. In relation to finding (i), it is unclear whether the AAT in fact considered the joint statement as removing the legitimate expectation that is said to be created by Australia's ratification of the Convention. No reasons are given for the conclusion. In any event, it is submitted that the joint statement does not have the effect that is attributed to it: Department of Immigration and Ethnic Affairs v. Yad Ram (1996) 23 AAR 134 at p.140 (per Hill J). 14. In relation to finding (ii), it is submitted that there is no basis whatsoever for asserting any estoppel against the applicant. An estoppel of this kind has no place in administrative law. In any event if there is an estoppel it can only be asserted against Richard, as it is his interests that are to be taken into account: Teoh (supra). 15. In relation to finding (iii), this is predicated on a number of stated facts which include 'the children's connection with the Applicant [being] so remote' and 'the probability of him obtaining any meaningful access [as being] so unlikely'. It is submitted above that those findings were made in breach of the rules of natural justice and accordingly this finding of the AAT can not be sustained either. 16. Finding (iv), ie that these proceedings were not in any real sense 'an action concerning children' within the meaning of article 3 of the Convention, is predicated on the observations concerning 'the remoteness of the relationship between the children and the Applicant and the lack of dependence upon him. Again, it is submitted above, that those conclusions were only reached at by a process which involved a breach of natural justice. 17. In relation to (v), the conclusion that Richard's best interest is not served by recommending against the deportation of his father is, it is submitted, insupportable if the factual process which led to that conclusion contained the errors of law which are outlined above. Further, Article 9 of the Convention provides, inter alia: '1. State parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child...' It is submitted that the Convention therefore proceeds upon a prima facie assumption that children and their parents shall stay together and it is submitted [that] to make a finding that Richard's best interests is not served by recommending against the deportation of his father is a finding which is contrary to the assumption of the Convention. Accordingly, the Applicant or Richard should have been given notice that a finding was proposed to be made in those terms and given the opportunity to make submissions in opposition." (ii) Conclusions on grounds (i), (ii), (iv), (v) and (x) In my opinion, no error of law in the approach taken by Dr Gerber has been demonstrated. It will be remembered that, in the final expression of his conclusions, Dr Gerber set out in paras 43 and 44 of his reasons (quoted above) the essence of his approach. It is clear, I think, from the reading of his reasons as a whole, that Dr Gerber undertook the approach contemplated by the Guidelines for deportation stated in the "Policy Statement by the Minister for Immigration, Local Government and Ethnic Affairs : Australia's Criminal Deportation Policy". The Tribunal was entitled to take that Policy into account and to proceed to undertake the balancing exercise contemplated by the Policy (cf. R v Secretary of State for the Home Department; Ex parte Venables [1997] 3 WLR 23 at 50 per Lord Browne-Wilkinson; and Patel v The Minister for Immigration [1997] 1 NZLR 252 at 256 per Greig J). Not only did this approach fail to disclose any error of law but, in my opinion, it was in accordance with law. As part of that balancing exercise, Dr Gerber clearly had regard to the claims of the children as a primary consideration. His assessment, however, was that such a claim was "minimal". In Vaitaiki, above, I considered some of the questions that arise in the present connection out of the reasoning in Teoh. I will not repeat my reasons expressed there. In essence, it was a question of fact for the Tribunal to decide whether it was in the interests of Australia that the applicant be, or not be, deported. In making an assessment of that ultimate fact, the Tribunal was entitled to have regard to the Guidelines for deportation. In the end the question becomes, for present purposes, one of ultimate fact, that is, was the claim of the children one that could be properly described as "minimal" or something else? That assessment involving, as it did, a factual inquiry, was a matter for the Tribunal. I can perceive no error of law in the approach taken by the Tribunal. In those circumstances, I need not add to my discussion in Vaitaiki as to the effect of Teoh in the present situation. As I there said, I regard myself as bound by the majority (Mason CJ and Deane J; and Toohey J) view in Teoh that no more than the provision of procedural fairness is required of the decision-maker. In my opinion, procedural fairness was observed in the present case. It was not necessary in Vaitaiki to deal with the effect, if any, of the Ministerial joint statement. This may be a complex question in its own right (see, for instance, Margaret Allars, "One small step for legal doctrine, one giant leap towards integrity in government: Teoh's Case and the Internationalisation of Administrative Law" (1995) 17 Syd Law Rev 204 at 239-241). But that question does not arise for decision here. ORDERS I order that the application be dismissed with costs. I certify that this and the preceding thirty-five (35) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont Associate: Dated: 23 June 1997 Counsel for the Applicant: R Beech-Jones Solicitor for the Applicant: Peters Crompton Worrall Solicitor for the Respondent: G. Peek, Australian Government Solicitor Dates of Hearing: 25 March 1997 Date of Judgment: 23 June 1997