FEDERAL COURT OF AUSTRALIA Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585 ADMINISTRATIVE LAW – Migration – Application filed in the Administrative Appeals Tribunal for review of decision of delegate of Minister to refuse visa – Application dismissed for failure to appear – After delay of six years applicant sought reinstatement of his application for review – Whether original application for review was 'dismissed in error' – Application to Tribunal for extension of time in which to make fresh application for review – Whether a decision on an application for extension of time to apply for review of a visa application can be regarded as an 'action concerning children' – Whether Tribunal failed to have regard to interests of applicant's children as a primary consideration – Whether Tribunal's decision affected by error of law in relation to applicant's ability to make a fresh visa application. Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 42A(10) Migration Act 1958 (Cth) s 501E Convention on the Rights of the Child Article 3(1) Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 not followed Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383 applied Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550 followed in part and distinguished in part Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 discussed QI GUANG GUO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ADMINISTRATIVE APPEALS TRIBUNAL NSD 1253 of 2004 WILCOX J 10 DECEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1253 of 2004 BETWEEN: QI GUANG GUO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT JUDGE: WILCOX J DATE OF ORDER: 10 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be dismissed. 2. The applicant pay the first respondent's costs of the proceeding. 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 NSD 1253 of 2004 BETWEEN: QI GUANG GUO APPLICANT AND: MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT JUDGE: WILCOX J DATE: 10 DECEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT WILCOX J: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), ss 11(1)(c) and 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') and s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). The proceeding 2 The applicant, Qi Guang Guo, challenges two decisions of the Administrative Appeals Tribunal ('the Tribunal') made on 9 July 2004 ('the 2004 decisions'). The 2004 decisions were: (a) a decision to refuse to reinstate, under s 42A(10) of the AAT Act, an application that Mr Guo made to the Tribunal on 22 November 1996 ('the 1996 application') for review of a decision, made on 25 October 1996, by a delegate of the then Minister for Immigration and Multicultural Affairs, refusing him a visa to remain in Australia; and (b) a decision to refuse the applicant's alternative application, made under s 29(7) of the AAT Act, for an extension of time in which to make a second application for review of the delegate's decision. 3 The proceeding was commenced in the Federal Magistrates Court of Australia. At that time, the proceeding was based only on s 39B of the Judiciary Act. The only respondent was the present Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'). On 11 August 2004, Barnes FM made directions for filing relevant documents and ordered that the proceeding be transferred to this Court. 4 On 16 September 2004, I granted leave to the applicant to file in court an amended application in which the Tribunal was added as second respondent and which invoked the Court's jurisdiction under the ADJR Act and the AAT Act, as well as its jurisdiction under the Judiciary Act. The amended application referred to the 2004 decisions as 'the decision' and sought the following relief: '1. A writ of certiorari quashing the decision. 2. An order of mandamus requiring the Tribunal to consider the Applicant's applications under sections 42 and 29(7) of the AAT Act according to law. 3. A writ of prohibition and/or an injunction preventing the First Respondent, herself or by her servants or agents, acting upon the decision. 4. Alternatively to orders 1-3, orders under sections 11(1)(c) and 16 of the ADJR Act: (a) extending the period referred to in section 11(1)(c) so as to permit the filing of this Application; (b) setting aside the decision; (c) referring the matters to which the decision relates to the Tribunal for further consideration, subject to such directions as the Court thinks fit; and (d) directing the First Respondent not to act upon the decision. 5. Alternatively to orders 1-4, orders under section 44 of the AAT Act: (a) extending the time referred to in section 44(2A)(a) so as to permit the filing of this notice of appeal; and (b) setting aside the decision and remitting the case to the Tribunal. 6. Costs.' 5 At the hearing of the matter, on 13 October 2004, the applicant was represented by Mr G R Kennett of counsel and the Minister by Mr G T Johnson of counsel. The Tribunal had filed a submitting appearance and took no part in the hearing. 6 The parties relied entirely on affidavit evidence and documentary material. There was no dispute about facts. I take my account of the facts substantially from the reasons for decision of Deputy President Handley, who constituted the Tribunal for the purpose of the 2004 decisions. The facts 7 Mr Handley set out the following background facts: 'The Applicant, Mr Guo, was born in Guangzhou City, China, on 28 April 1957 and is aged 47. On 11 February 1998, he married Shi Wei (date of birth 20 February 1965) with whom he has two children, Charlie (Guo Jia Ning), who was born on 25 December 1988 and is aged 15, and William (Guo Kwai Sang) who was born on 21 April 1993 and is aged 11. Mr Guo is a citizen of the People's Republic of China. Mr Guo arrived in Australia on 5 August 1988 on a student visa valid for six months. On 14 December 1989, he applied for a grant of resident status. On 30 June 1994, Mr Guo applied for a Class 815 (permanent) entry visa. On 1 September 1994, the Migration Reform (Transitional Provisions) Regulations 1994 ("the TRs") were introduced. Regulation 23 of the TRs provided that an application for a Class 815 (permanent) entry visa not determined by 1 September 1994 became an application for a transitional (permanent) visa and would be decided according to the criteria applied to a Class 815 (permanent) entry permit. As Mr Guo's application was not determined by 1 September 1994, it automatically became an application for a transitional (permanent) visa. On 25 October 1996, a delegate of the then Department of Immigration and Multicultural Affairs, decided to refuse Mr Guo's application because of Mr Guo's past criminal activities, his noted pattern of deceptive conduct over a number of years, his association with persons or groups involved in criminal conduct, and because on the balance of the evidence before the delegate, it was considered likely that Mr Guo would engage in criminal conduct if allowed to remain in Australia, thereby representing a danger to the Australian community. Mr Guo was advised of this decision by letter dated 25 October 1996, sent by registered mail.' (Original emphasis) 8 On 22 November 1996, Blessington Judd, solicitors, applied to the Tribunal for review of the delegate's decision. They took steps to prepare for a hearing, which was fixed for 3 November 1997. However, on 17 October 1997, Mr Rutland Cheung of Blessington Judd wrote to the Registrar of the Tribunal confirming a telephone request for adjournment of the hearing. Mr Cheung's letter included the following explanation: 'My instructions were received from Mr Eddy Wu who came to our office in the afternoon of 16 October 1997. Mr Wu advised me that he has received a message to pass on to me that Mr Guo intends to pursue his case vigorously but regrets he cannot attend on 3 November 1997. I was instructed to seek an adjournment. Mr Wu unfortunately could not advise me the reasons for the adjournment. I asked Mr Wu whether Mr Guo was sick or what but I have not been able to get further information. I am unable to contact Mr Guo presently. The situation is, I must accept, most unsatisfactory. I can understand if DIMA would wish to object to an adjournment. The grounds that I can advance at this stage in support of the adjournment being: a. Prejudice to DIMA arising from an adjournment is not such that will affect the evidence or case of DIMA or in any way put DIMA at a disadvantage; and b. Public Interest ground. It is in the public interest that every person should be given the opportunity to be heard and to defend any adverse decision of the Government against them. If acceptable to DIMA, I would propose orders be made that the hearing dates be vacated and a directions hearing date be set to review the readiness of the parties to have new hearing dates set.' 9 Mr Cheung's request was not immediately granted. On 24 October 1997, Deputy President Chappell held a directions hearing at which he directed the applicant to file and serve a document giving 'adequate reasons explaining why he is unable to proceed with his application at this point, and why the matter should not be dismissed pursuant to s 42A(5) of the [AAT Act]'. 10 No such document was filed with the Tribunal. Instead, on 31 October 1997, Mr Cheung sent a further letter to the Registrar of the Tribunal in which he said: 'I refer to my appearance on 24 October 1997 and the Orders of Deputy President Chappel [sic] dated 24 October 1997. I have not been able to contact our client for instructions and therefore the directions of Deputy President Chappel [sic] can not be complied with. In the circumstances, much as we would like to assist Mr Guo we have been placed in an untenable position. I must therefore advise the Tribunal our firm can no longer continue to act in this matter and will not be making any appearance on 3rd November 1997.' 11 Nobody appeared on behalf of the applicant at the hearing on 3 November 1997. Consequently, Deputy President Chappell made the following orders: 'The Tribunal: 1. being satisfied that the applicant has failed to appear at the hearing of his proceeding for review, and 2. that the applicant was given appropriate notice of the time and place of the hearing, as required by s 42A(7) of the Administrative Appeals Tribunal Act 1975(the Act), 3. directs that the application be dismissed pursuant to s 42A(8) of the Act, without the Tribunal proceeding to review the decision. The applicant may apply to the Tribunal, under s 42A(8) of the Act, for reinstatement of the application within 28 days after receiving this notification that the application has been dismissed.' (Original emphasis) 12 At the hearing before me, it was accepted by counsel that Deputy President Chappell's first reference to s 42A(8) of the AAT Act was incorrect; the reference should have been to s 42A(2). It is not suggested anything turns on this error. 13 No application for reinstatement was made within 28 days. Indeed, the Tribunal heard nothing from Mr Guo for several years. Deputy President Handley recounted what happened next: 'On 12 December 2001, Mr Guo was arrested when a search was made of the house where he and his family were living and stolen jewellery and a large sum in cash were located. Mr Guo was detained in Villawood Immigration Detention Centre until 29 April 2002 when he was charged with having in his custody property (gold jewellery worth $137,400 and $769,300 in cash) "reasonably suspected of being stolen or otherwise unlawfully obtained", and then bailed and released on a criminal justice visa current until July 2004. On 17 January 2003, Mr Guo's current solicitors, Ren Zhou Lawyers, lodged two applications with the Tribunal, being an application to reinstate matter No N1996/1407, the matter dismissed by Deputy President Chappell, and an application for an extension of time to lodge a fresh application for review. Ren Zhou Lawyers submitted that: Mr Guo had not in fact received notification of the hearing and had been denied natural justice; non-contact does not necessarily lead to a conclusion of abandonment of an action; there was no consideration of the best interests of Mr Guo's children; and no consideration was given to hearing the matter in the absence of Mr Guo. Ren Zhou Lawyers also submitted that Mr Guo's non-willingness to appear at the Tribunal hearing was caused through his wishing to avoid arrest for charges which he denies having committed. By letter dated 11 February 2003, the legal representative for the Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, notified the Tribunal that it opposed Mr Guo's applications for reinstatement of the application for review and for an extension of time to lodge an application for review. On 29 April 2004, Mr Guo was convicted under s 527C(1)(a) of the Crimes Act 1900 (NSW) of having property (the gold jewellery) in his possession reasonably suspected of being stolen or otherwise unlawfully obtained. On 7 June 2004, he was sentenced to a period of imprisonment of five months and 15 days, being the total of the time that Mr Guo had previously spent in immigration detention. Mr Guo was therefore released following sentencing. The charge in respect of the large sum of cash was withdrawn.' The relevant legislation 14 Part IV of the AAT Act, which includes both s 29 and s 42A, deals with Tribunal reviews of administrative decisions. 15 Section 29 is headed 'Manner of applying for review'. It sets out formal requirements, including the time within which an application may be lodged. Section 29(7) is as follows: 'The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).' 16 Section 42A is headed 'Discontinuance, dismissal, reinstatement etc. of application'. The section relevantly provides: '(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative … at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; … … (5) If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision. (6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded. (7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the … hearing ... (8) If the Tribunal, under subsection (2), has dismissed an application … the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application. (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. (10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.' The Tribunal hearing 17 Deputy President Handley conducted a hearing at which Mr Guo was represented by Mr L Karp of counsel. Both Mr Guo and Mr Wu gave evidence. 18 At [14] to [16] of his reasons for decision, Deputy President Handley made this summary of the background evidence given by Mr Guo: 'Mr Guo said he first arrived in Australia in August 1988 on a student visa valid for six months. On the expiry of this visa, he applied for a further visa through a migration agent who told him to await a decision which does not appear to have eventuated. Mr Guo acknowledged that he did not have a valid visa between the expiry of his student visa and his application for resident status in December 1989. After the Tiananmen Square massacre in 1989, he was granted a temporary protection visa. In 1994, he applied for a Class 815 visa which was refused in 1996 on the ground that he is not of good character. Mr Guo said he met his wife in China in 1986. They were married in February 1988. His wife did not accompany him to Australia in August 1988. She first came to Australia with their older son, Charlie, in 1992, but returned to China with Charlie, to have their second child, William, in 1993. She and Charlie returned to Australia about a year after William was born. William remained in China with his wife's parents and did not come to Australia until October 2000 by which time he had attended Year 1 of primary school. Mr Guo said he and his wife have never separated or divorced. Mr Guo acknowledged that he is not of good character because, in 1994, he tried to use a false passport to return to China to see his father who was dying. Mr Guo said he also has a gambling habit for which he has been punished. He denied ever having been involved in the sale of illegal drugs.' 19 In an affidavit read to the Tribunal, Mr Guo gave an account of discussions with Mr Cheung about legal fees incurred between November 1996 and May 1997. Mr Guo said that, after a meeting in May 1997, he avoided Mr Cheung. He did not attempt to find another lawyer. Deputy President Handley's account of his evidence went on: 'He did not really understand the legal proceedings and his English was very poor. Moreover, he became aware that the police were watching him and so decided to "get out of it for a while" and not draw attention to himself. He moved from his house in Ashfield, first to a friend's house and then to Melbourne, where he stayed from September 19[9]7 to about February 1998, living at one address. He did not tell Mr Cheung where he was. On the few occasions Mr Cheung's calls reached him, he did not return these. Sometimes Mr Cheung left messages with Mr Guo's wife and sometimes with his friend Eddie Wu who would also leave messages with Mr Guo's wife. It was always Mr Guo who contacted Mr Wu because Mr Guo did not have a permanent telephone number. Although Mr Guo knew he would have to attend the Tribunal for a hearing, neither Mr Cheung nor Mr Wu told him of the hearing on 3 November 1997. Later, Mr Wu did tell Mr Guo's wife that Mr Guo did not have a visa and said she should go and see Mr Cheung about this. Mr Guo was aware that Mr Wu was friends with Mr Cheung and that Mr Wu saw him regularly over legal matters Mr Cheung was handling for him. Mr Guo acknowledged that Mr Wu knew the details of his case and that he was avoiding Mr Cheung, but Mr Guo never instructed Mr Wu to do anything on his behalf. Mr Guo said it was not until March or April 1998 that he learned of the Tribunal's decision to dismiss his application as a result of his wife going to see Mr Cheung. Mr Cheung would not release his file to Mr Guo's wife because he said Mr Guo owed him money. Mr Guo thought he would wait some time and then find another lawyer. He did not make any serious attempt to find one. He needed to save some money for this purpose and he also hoped that after a while "things might settle down". Mr Guo said between April 1998 and late 2001 he and his family lived at four or five different addresses in Sydney. They usually had to move because the children were noisy and the landlord forced them out. He did not seek to hide from the police or the Department of Immigration during this period but they did not bother him. He assumed that because his family were permanently here he could also stay.' 20 Mr Guo went on to provide information about his gambling problem and the criminal convictions of himself and his wife. He was detained by officers of the Department of Immigration and Multicultural and Indigenous Affairs in December 2001. Upon his release from detention in late June 2002, he sought legal assistance. As a result, in January 2003, application was made to the Tribunal for reinstatement of the 1996 application and for an extension of time to make a fresh application. 21 Mr Guo gave information about his relationship with his wife and two sons. He said that, if he has to return to China, they will probably remain in Australia. 22 Mr Wu confirmed he had occasional contact with Mr Guo in 1997 and 1998. The contact occurred when Mr Guo telephoned him. Mr Wu remembered Mr Cheung asking him on one occasion about Mr Guo's whereabouts and telling him he had been trying to contact Mr Guo. Mr Wu informed Mr Cheung he did not know how to contact Mr Guo. The Tribunal's decisions (i) The reinstatement application 23 In his reasons for decision, Deputy President Handley first discussed Mr Guo's application for reinstatement of the 1996 application, pursuant to s 42A(10) of the AAT Act. He noted that Mr Karp did not rely on s 42A(8). The Deputy President observed that s 42A(10) confers a discretionary power on the Tribunal to reinstate an application '[i]f it appears to the Tribunal that an application has been dismissed in error'. However, he commented, the subsection does not 'explain what kind of error might attract its operation'. 24 Deputy President Handley referred to a decision of a Full Court of this Court, Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 ('Brehoi'), and a subsequent Tribunal decision, Re Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513 ('the Goldie Tribunal decision'). He did not refer to the Full Court decision allowing an appeal against the Goldie Tribunal decision: see Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383 ('the Goldie Full Court decision'). Presumably, the Deputy President was not referred to the Goldie Full Court decision. 25 No doubt because he was unaware of the Goldie Full Court decision, Deputy President Handley accepted that 's 42A(10) is only enlivened where the relevant application has been dismissed by reason of administrative error on the part of the Tribunal'. At [39] to [45] of his reasons, the Deputy President reviewed the evidence as to the events of 1997. He considered that those events, which concluded with Deputy President Chappell's orders of 3 November 1997, 'were entirely of the Applicant's own making'. Deputy President Handley said: 'There was no administrative error by the Tribunal, which chose to dismiss the application under s 42A(2) rather than s 42A(5) to enable the Applicant to apply for reinstatement should he have chosen to do so. Had Mr Guo stayed in touch with his solicitors or taken other steps such as instructing other solicitors or at least maintaining contact with the Tribunal, none of this would have happened. Since there was no administrative error by the Tribunal, there is no power to reinstate Mr Guo's application pursuant to s 42A(10).' 26 In the course of discussing s 42A(10), Deputy President Handley mentioned a reference Mr Karp had made to a comment of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 ('Bhardwaj'). The Chief Justice said, at [14], that a failure by a tribunal to follow its statutory procedures, thereby denying a party the opportunity to be heard on an issue, amounts to administrative error. The Deputy President noted that Mr Karp had submitted there was such a failure in this case and that the respondent had disagreed. Implicitly, he accepted the respondent's submission on that matter. (ii) The extension of time application 27 Deputy President Handley then turned to the application for extension of time under s 29(7) of the AAT Act. He said it was 'widely accepted' that the Tribunal should be guided by the principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ('Hunter Valley'), but 'too slavish an adherence' to them should be avoided: Brown v Federal Commissioner of Taxation (1999) 42 ATR 188 at [41]. 28 Deputy President Handley summarised the Hunter Valley principles in this way: 'Prima facie, proceedings commenced outside the prescribed period will not be entertained. However, an extension may be granted if it is proper to do so. The first proposition is that an Applicant applying for an extension of time must provide an explanation for the failure to lodge the application within the required period, which, in the ordinary case, should be an acceptable explanation for that failure. Secondly, it is relevant to consider whether the Applicant has "rested on his rights" such that the decision-maker may have believed that the matter may have finally been concluded. Thirdly, is there any prejudice to the Respondent by the granting of an extension of time? Fourthly, should relevant matters of public policy and public interest be taken into account? Fifthly, what are the merits of the application? The Applicant should be able to show that he or she has an arguable case. Sixthly, would the granting of the extension of time raise considerations of fairness as between the Applicant and other persons in a like position?' 29 Deputy President Handley considered these six matters in some detail. He concluded it would not be appropriate to extend the time for lodging the second application. He said: 'In the Tribunal's view, a more appropriate course is for him to submit a new application for a spouse visa in the ordinary way. The Tribunal therefore refuses the application to reinstate the first application for a review and refuses the application for an extension of time to lodge a second application.' 30 I need not set out the whole of Deputy President Handley's discussion of the six matters. However, I should mention what he said about Mr Guo's children. The Deputy President referred to the children in that portion of his reasons in which he discussed the relevant visa criteria. At [54] to [57], he said: 'The Applicant having conceded that he does not pass the character test, a substantive hearing of this matter would focus on the exercise of the discretion in s 501(1) to not refuse the grant of a visa, including reference to the guidance provided to decision-makers by Direction No 21, Visa Refusal and Cancellation under s 501, made by the Minister under s 499(1) of the Act. The Direction identifies three primary considerations together with "other considerations" that are generally to be given less weight. The three primary considerations are the protection of the Australian community, the expectations of the Australian community and the best interests of any children aged less than 18. A consideration of the protection of the Australian community requires reference to the seriousness of the offences, whether there is a risk of repetition and the deterrent effect of the refusal of a visa. It is likely that Mr Guo's criminal history would be regarded as relatively serious, and there is a suggestion of continuity in the repetition of his offending. Refusal of a visa in such circumstances could have a deterrent effect. Secondly, in the Tribunal's view it is likely that the Australian community would expect that a person who does not respect Australia's law should be refused a visa. However, the third primary consideration, the best interests of Mr Guo's two children is likely to favour the grant of a visa given that the older son Charlie, aged 15, is an Australian citizen, and the younger son, William, aged 11, is a permanent resident. Mr Guo's wife, Shi Wei, is also an Australian citizen. The Respondent questioned whether it is in the best interests of the children to remain with their father given his criminal antecedents and lifestyle, noting, for example, that he was not present when his home was the subject of a police raid in July 2003. The Respondent also noted that Mr Guo has lived away from his children for significant periods of time. With regard to the other considerations, there has been little evidence concerning Mr Guo's relationship with his wife. The Tribunal notes that she too was convicted of a criminal offence following the search of their home on 12 December 2001, in relation to the possession of 520 ecstasy tablets, and sentenced to six months imprisonment from which she was released in November 2003. Weighing up these considerations, in the Tribunal's view Mr Guo's case for the exercise of the s 501(1) discretion is not a very strong one.' (Original emphasis) Review of the reinstatement application decision (i) The applicant's submissions 31 The primary submission advanced by Mr Kennett, in relation to the reinstatement application decision, was that the Tribunal erred in failing to follow the Goldie Full Court decision. He argued: 'The Full Court in Goldie carefully considered the earlier remarks in Brehoi (which, it was acknowledged, were obiter) and gave reasons for not following them. Goldie represents the most recent, reasoned and unanimous view of the Full Court on the issue and should be followed.' 32 Mr Kennett also submitted: 'While the Tribunal appears to have been of the opinion that the Applicant's failure to appear, which led to the order of 3 November 1997, was his own fault, it did not express a concluded view on the submission put to it that the order involved a breach of natural justice. Nor did it consider whether there was any other form of "error" lying behind the order. The Tribunal thus committed an error of law which is sufficient to ground an order under s.44(5) of the AAT Act or under s.16(1)(a) and (b) of the [ADJR Act]. Alternatively, the Tribunal constructively failed to exercise its jurisdiction and orders ought to be made under s.39B of the Judiciary Act 1903 accordingly.' (ii) The first respondent's submissions 33 Mr Johnson formally submitted that the Goldie Full Court erred in holding, contrary to dicta in Brehoi, that the phrase 'dismissed in error' in s 42A(10) is not limited to administrative error by the Tribunal. However, he accepted I was bound to follow the Goldie Full Court decision. 34 On this basis, Mr Johnson conceded that Deputy President Handley construed too narrowly the phrase 'dismissed in error'. Nonetheless, he submitted that the present application, insofar as it relates to the reinstatement application decision, ought to be dismissed. He advanced three reasons. 35 First, Mr Johnson said, Deputy President Handley did not in fact treat s 42A(10) as being confined so narrowly as to preclude reinstatement in the circumstances contended by the applicant. Mr Johnson noted the Deputy President's reference to Bhardwaj and his subsequent consideration of the evidence in order to determine whether it disclosed a case of denial of natural justice or breach of procedure. 'In other words', Mr Johnson submitted, 'the Tribunal dealt with the matter upon the assumption that error of the kind contended by the applicant, if established, fell within "administrative error" by the Tribunal'. Mr Johnson quoted the conclusion of the Tribunal set out at [25] above. 36 Mr Johnson's second and third reasons were as follows: 'Secondly, even if … the Tribunal did take too narrow a view of the scope of the power contained in section 42A(10), that error was immaterial in so far as it could not have affected the Tribunal's decision, given what it found at [39]-[45]. Those paragraphs show that the Tribunal did not accept that there had been any breach of the rules of natural justice, or any failure by the Tribunal to follow any procedure that it was required to follow. In short, despite the Full Court decision in Goldie apparently being overlooked, the Tribunal considered and rejected the applicant's case. It would follow that, at least on discretionary grounds, no relief should be granted. Thirdly, considering what is found and set out by the Tribunal at [39]-[45], it is clear that there was in fact no breach of the rules of natural justice involved in the earlier decision of Deputy President Chappell under section 42A(2) of the AAT Act … Nor does the applicant ask this Court to find that there was such a breach. For that reason too, it can be concluded that any error by the Tribunal in appreciating the scope of section 42A(10) could not have affected its decision in this case, and also that it would be futile to send the matter back to the Tribunal as the applicant seeks.' 37 In order to make good these submissions, Mr Johnson summarised the findings of Deputy President Handley, set out at [39] to [45] of his reasons for decision. Mr Johnson particularly noted the Deputy President's finding that the dismissal of the 1996 application occurred because of fault by the applicant and no-one else. Mr Johnson submitted: 'The applicant was given a reasonable opportunity to appear and to present his case to the Tribunal, but did not take advantage of that opportunity and, in effect, took his chances. Deputy President Chappell was not obliged to do more than he did.' (iii) Conclusion 38 I agree with Mr Kennett that Deputy President Handley made an error of law in relation to the meaning of the phrase 'dismissed in error'. The Tribunal was bound to follow the Goldie Full Court decision. That decision rejected the contention that the word 'error' is limited to administrative errors of the Tribunal: see the Goldie Full Court decision at [34]-[35] and [73]. 39 Otherwise, however, Mr Johnson's arguments on the reinstatement application decision ought to be adopted. I agree with him that Deputy President Handley did not confine himself to a search for administrative error by the Tribunal. He examined the whole of the evidence and concluded that the order of Deputy President Chappell was the result of a 'sequence of events … entirely of the Applicant's own making'. He thought there was no denial of natural justice or procedural error. 40 These conclusions of fact were plainly open to Deputy President Handley. It was clear, on Mr Guo's own admission, that he gave Mr Cheung authority to act on his behalf, and knew Mr Cheung was making an application to the Tribunal in respect of the delegate's decision to refuse him a visa. However, Mr Guo cut himself off, and concealed his whereabouts, from Mr Cheung. A person who commences a proceeding, and then makes himself uncontactable by his appointed solicitor, should expect that, at some stage, the proceeding will be dismissed for want of prosecution. On the facts found by Deputy President Handley, Mr Guo deliberately placed Mr Cheung in a position where he could not represent him. Mr Cheung was justified in notifying the Tribunal he could no longer act in the matter. Deputy President Chappell had no choice other than to dismiss the 1996 application under s 42A(2) of the AAT Act; the matter could not proceed to a hearing in the absence of Mr Guo or an appointed representative who was fully instructed about the case. 41 I agree with Mr Johnson that Deputy President Handley did in fact consider whether the 1996 application had been 'dismissed in error', in the fullest sense of that phrase. He found it had not been so dismissed. There was ample evidence to support that finding. The natural justice argument was fully considered. 42 Insofar as the present application relates to Deputy President Handley's decision not to reinstate the 1996 application, it must fail. Review of the extension of time application decision (i) The applicant's submissions 43 Mr Kennett made only limited submissions in relation to Deputy President Handley's decision not to extend time, under s 29(7) of the AAT Act, for Mr Guo to file a second application for review of the delegate's decision to refuse his visa application. 44 First, Mr Kennett said the Deputy President's decision was an 'action concerning children', within the meaning of Article 3(1) of the 1989 Convention on the Rights of the Child ('the Convention'). The decision 'would affect the interests of the applicant's two children, in that it would determine whether or not their father was able to pursue his application for permission to remain in Australia. The grant of an extension of time would also provide a basis upon which the children's father could apply for a bridging visa'. 45 Mr Kennett developed his argument in the following way: 'The decision to be made on the extension application was therefore squarely within the scope of Article 3(1) of the United Nations Convention on the Rights of the Child, and of the reasoning of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [('Teoh')]. (That reasoning remains binding on this Court, despite criticisms made of it in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, as its acceptance in subsequent decisions of this Court (Powell v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 717 at [27]-[28]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [69]) indicates.) Accordingly, principles of procedural fairness required the Tribunal to: (a) take the interests of the children into account as "a primary consideration"; or (b) tell the Applicant that it was proposing not to take that course, and allow him to make submissions on that proposal. The Tribunal did not do either of these things. There is no suggestion in the documentary record, or in the transcript of the Tribunal hearing, that the Tribunal gave notice of an intention not to treat the interests of the children as a primary consideration. The Tribunal accepted that the interests of the children would be a "primary consideration" in any substantive review of the delegate's decision and that it would be likely to favour the grant of a visa. The issue was thus accorded some indirect weight, in that it strengthened the Applicant's case on one of the six issues which the Tribunal took into account (i.e. the prospects of the substantive application). However, that is very different from treating the best interests of the children as a primary consideration in the exercise of the discretion per se. The Tribunal did not do that. It did not even acknowledge the best interests of the children as a factor having relevance in its own right. On the authority of Teoh, therefore, the Tribunal denied the Applicant procedural fairness. The decision ought to be set aside under one of the remedial provisions mentioned earlier.' (Some footnotes omitted) 46 During oral submissions, Mr Kennett drew attention to the following evidence of Mr Guo, given through an interpreter, in re-examination before the Tribunal: 'MR KARP: Mr Guo, how would you describe your relationship with your sons? Would you describe it as close or not so close? THE INTERPRETER: I myself, love my children very much. I can't say that I am a father who can teach my son very well or communicate very well with my son but we live together. Every day we sort of, we live together and I love them very much. MR KARP: Now, when your sons ran away from the Department of Community Services people, did they tell you why they ran away? THE INTERPRETER: They broke all the news – they broke all the news regarding my son. It was not until a few weeks later than [sic] I was notified formally about my son. MR KARP: Did they tell you why they ran away from DOCS? THE INTERPRETER: No. MR KARP: Have they ever run away from you or your wife? THE INTERPRETER: Never. MR KARP: Do they speak to you respectfully or not? THE INTERPRETER: I grew up in China. My children grow up in Australia. It is very hard for me to use the traditional strict Chinese ways – strict disciplines to apply them in my two sons. May be they think that the way they – the attitude that they have towards me is the best attitude – is a good attitude but may be I don't think so or may be I should think that is the best attitude. MR KARP: How do you think your children would react if you were made to go back to China? THE INTERPRETER: I think better you ask them. … MR KARP: Do you think that they would miss you? THE INTERPRETER: Of course. MR KARP: Why is that, Mr Guo? THE INTERPRETER: We been together for so long, the feeling – family relations is there.' 47 Mr Karp's reference to the applicant's sons running away from the Department of Community Services ('DOCS') was apparently a reference to an incident that occurred in early 2002. Mr Guo was then in immigration detention. His wife was being detained in connection with a drug charge. DOCS took the boys into care but, after two or three months, they ran away from their carer. Mr Guo's sister came from England to help find the boys. After some time, they were united with their aunt. She looked after them until their mother was released on bail in about April 2002. (ii) The first respondent's submissions 48 Once again, Mr Johnson offered multiple answers to Mr Kennett's submissions. His first answer was as follows: 'Firstly, the Tribunal did acknowledge that the interests of the children would be a primary consideration for the Tribunal in the event that the merits of the applicant's substantive case should go to hearing … Indeed, the Tribunal accepted … that the primary consideration of "the best interests of Mr Guo's two children is likely to favor the grant of a visa given that the older son, Charlie, aged 15 is an Australian citizen and the younger son, William, aged 11 is a permanent resident …". If the interests of the applicant's children were required to be considered by the Tribunal at all when making its decision upon the extension of time application, they needed to be considered only within the context of the applicant's substantive prospects of success if an extension was granted. That is, if (as is not conceded) there was a legitimate expectation that the interests of the children would be taken into account as a primary consideration, its satisfaction could have involved no more than: (a) recognizing that the interests of the children would be a primary consideration if and when the merits came to be determined and (b) by forming a view, so informed, upon the prospects of success of the substantive application. That is exactly what the Tribunal did. At [49] and [52], the Tribunal expressly acknowledged its need to consider "the merits of the application". At [54]-[57], it then weighed up the bests [sic] interests of Mr Guo's two children against the two other "primary considerations", and other considerations generally to be given less weight, and, then, weighing all of these factors, concluded at [57] that "Mr Guo's case for the exercise of the s501(1) discretion is not a very strong one". The other "primary considerations", the protection of the Australian community and the expectations of the Australian community, were plainly seen by the Tribunal in paragraph [55] as pointing towards visa refusal and likely to outweigh the interests of the children and other considerations referred to in paragraphs [54] and [56]-[57].' (Footnotes omitted) 49 Mr Johnson cited my decision in Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550 ('Browne'). That case was also an application for review of a decision of the Tribunal refusing an extension of time under s 29(7) of the AAT Act. The applicant, a New Zealand citizen, was the father of an infant born to an Australian mother. The Tribunal member (Deputy President Chappell) purported to apply the principles set out in Hunter Valley. In his reasons for decision, he made only a passing reference to the child, merely commenting that deportation of the applicant 'would undoubtedly cause hardship' to the child and his mother. There was no indication that Deputy President Chappell had realised the interests of the children had to be treated as a primary consideration, both before him or at any hearing of a substantive application for review. This was one of two grounds upon which I set aside his decision in that case. 50 In Browne at 568, I made a comment to which Mr Johnson drew attention in this case. I said: 'In making these observations, I am conscious of the fact that the matter before Dr Chappell was an application for extension of time, not a review of the deportation decision itself. If he had determined, without first undertaking an analysis of the matters I have mentioned, that the obligation under article 3.1 of the Convention was of such significance that it was proper to extend time, in order that the obligation might be weighed against the factors favouring deportation, Dr Chappell could not be criticised for taking that course; he would have facilitated a full subsequent investigation, and weighing, of the competing considerations. However, to refuse an extension was to effect a result that preferred one consideration to another. To do this without undertaking a comprehensive investigation was to ignore Australia's obligation under article 3.1 of the Convention and to fail to take into account a consideration relevant to the decision the Tribunal was required to make.' 51 Second, and notwithstanding Browne, Mr Johnson challenged Mr Kennett's assumption that the extension application to the Tribunal was an 'action concerning children', within the meaning of Article 3.1 of the Convention. He said: 'An application for an extension of time, such as was before the Tribunal in the present case, is not of itself an action concerning children. The commencement (or otherwise) of the application to the Tribunal would not of itself relevantly impact upon the children. It is not a decision which would attract the natural justice (legitimate expectation) consequences discussed in [Teoh]. … A decision as to whether or not a child's parents are to be allowed to remain in Australia, such as was in issue in Teoh, plainly has a direct effect upon the children, but that effect finds no equivalent in the AAT's discretion to extend time to bring an application for review. The applicant points to no authority holding that the natural justice operates the way he contends in the context of section 29(7) of the AAT Act, or any like discretion.' 52 Mr Johnson said it would have been an abuse of power for Deputy President Handley to have granted an extension of time in which to bring a second application in order merely to facilitate the grant of a bridging visa to Mr Guo. He said: 'It is plain from the Tribunal's reasons that it saw the substantive application as unlikely to succeed. To allow an extension of time to facilitate the obtaining of a visa would be to use the power for a purpose other than that for which it was conferred.' 53 Further, Mr Johnson said, s 501E of the Migration Act 1958 (Cth) ('the Migration Act') would have precluded the grant of a bridging visa in this case. That section provides: '(1) A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if: (a) at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and (b) the decision was neither set aside nor revoked before the application time. (2) Subsection (1) does not prevent a person, at the application time, from making an application for: (a) a protection visa; or (b) a visa specified in the regulations for the purposes of this subsection.' (Original emphasis) 54 Finally, Mr Johnson said: 'In further answer to each of the applicant's arguments, if the applicant did have a legitimate expectation of the kind discussed in Teoh (which is not conceded), and if that expectation was breached (which is also not conceded), that would not of itself amount to reviewable error. Breach of a legitimate expectation can only amount to a breach of the rules of natural justice if practical injustice is shown to result. See [Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1] at [34] and [36]-[38] per Gleeson CJ, [105]-[106] per McHugh and Gummow JJ, [122] per Hayne J and [149]-[151] per Callinan J. No practical injustice is shown here. Again, the consideration in fact given by the Tribunal to the interests of the children, within its evaluation of the applicant's substantive prospects of success, is relevant.' (iii) Conclusion 55 Consistently with the view I adopted in Browne, I do not accept that a decision about an application for extension of time cannot properly be regarded as an 'action concerning children' within the meaning of Article 3.1 of the Convention. A decision about extension of time is one step removed from a substantive decision about the grant of a visa. However, it may be essential for a person to obtain a favourable decision on an extension of time application if he or she is to have an opportunity of pressing a case for the grant of a visa. It seems unlikely that the drafters of the Convention intended the phrase 'actions concerning children' to be interpreted in a narrow or pedantic sense. Rather, it is likely that the phrase was intended to be read in a generous and practical way, to include the myriad of official decisions which impact upon the welfare of children, whether in general or in particular. 56 It follows that I consider the principle enunciated by the High Court in Teoh applied to Deputy President Handley's decision concerning the application for extension of time for the making of a second application. However, the operation of Article 3.1 must always be considered in the context of the action then being contemplated. While Mr Guo must be presumed to have had a legitimate expectation that, in exercising the discretion conferred on him by s 29(7) of the AAT Act, Deputy President Handley would treat as a primary consideration the interests of his two children, the expectation would relate only to the Tribunal's decision about extension of time, not, at that stage, to the substantive question of whether or not the delegate's visa decision should be set aside. 57 Considering the matter in that context, and in contrast to the factual position in Browne, I do not consider that Deputy President Handley failed to have regard to the interests of the children as a primary consideration. The Deputy President was concerned with the question whether he should extend time for the making of a new application to challenge a delegate's decision that had been made nearly eight years earlier. One of the matters he was bound to take into account, in relation to the extension of time application, was Mr Guo's prospect of success in a substantive application for review of the delegate's decision; that is, his chance of obtaining a favourable decision in relation to grant of a visa. A primary consideration in relation to that decision would be the interests of his children. Consequently, it was appropriate for him to consider the interests of the children, as a primary consideration in the extension of time application, in assessing the chance that a fresh application for review would succeed. 58 Deputy President Handley did this. In contrast to Deputy President Chappell in Browne, Deputy President Handley noted the obligation cast upon him by Article 3.1 of the Convention. He summarised the evidence relating to the children. He concluded the best interests of the children were a consideration 'likely to favour the grant of a visa'. However, he thought this consideration was likely to be outweighed, in the overall decision whether or not to grant a visa, by other primary considerations: protection of the Australian community and the expectations of the Australian community. Views might differ about Deputy President Handley's assessment of the weight likely to be accorded to the competing factors at a substantive hearing. I express no view about that. However, it is impossible to say he did not recognise – and take into account as a primary matter within the context of the extension of time application – the best interests of Mr Guo's children. 59 Despite the importance of Teoh, its limits should be borne in mind. The case does not dictate that, where there are children, the decision-maker must always make a decision favourable to their interests; the decision-maker is only obliged to give their interests weight, as one of the primary matters relevant to his or her decision. Alleged error of law 60 Mr Kennett argued that Deputy President Handley fell into an error of law in proceeding on the basis that Mr Guo could make a further application for a spouse visa: see [29] above. The argument was based on s 501E of the Migration Act: see [53] above. 61 Mr Johnson noted that Deputy President Handley referred to Mr Guo making a new application 'in the ordinary way'. He submitted the Tribunal probably had in mind the possibility of Mr Guo applying offshore. He said that is 'the ordinary way'. In any event, he argued, this was only a suggestion made by the Deputy President after his conclusion that it would be inappropriate to extend time; 'the impugned suggestion of the Tribunal did not, on a fair reading of the Tribunal's reasons, affect its decision'. He said: 'The Tribunal was simply raising an avenue that might be looked at by the applicant in much the same way as the Court might do on occasions when, for example, faced with an applicant unable to show reviewable error in an application to review a decision of the RRT, the Court suggests an application to the Minister under section 48B or section 417 of the Migration Act.' 62 It is difficult to say what course Deputy President Handley had in mind when he spoke about a new application 'in the ordinary way'. However, it is clear that his comment played no part in the reasoning that led him to reject the case put by Mr Guo. Disposition 63 I am not persuaded that Deputy President Handley fell into an error of law, or other jurisdictional error, in relation to either of the 2004 decisions. It is not necessary to discuss the various bases of this Court's jurisdiction relied on by Mr Guo. On any view of those bases, his application for judicial review must fail. 64 The proceeding must be dismissed with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 10 December 2004 Counsel for the Applicant: Mr G R Kennett Solicitor for the Applicant: Christopher Levington & Associates Counsel for the First Respondent: Mr G T Johnson Solicitor for the First Respondent: Blake Dawson Waldron Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 13 October 2004 Date of Judgment: 10 December 2004