International instruments and law considered
Convention on the Rights of the Child (CRC)
Administrative Decisions (Judicial Review) Act 1977 (AD (JR) A)
Customs Act 1901 (CA)
Family Law Act 1975 (FLA)
Human Rights and Equal Opportunity Commission Act 1986 (HREOCA)
Income Tax Assessment Act 1936 (ITAA)
Migration Act 1958 (MA)
The respondent (T), a Malaysian citizen, entered Australia in May 1988 on a temporary entry permit and in July of the same year married an Australian citizen who had four children. The eldest child was from Mrs. Teoh’s first marriage and the other three were the children of T’s deceased brother. Three further children were born of the marriage between Mrs. Teoh and T. In October 1988, T’s temporary entry permit was extended for a further five months. Before this extension expired, T applied for a permanent entry permit or resident status. In November 1990, while the application was pending, T was convicted of nine charges relating to the offences of importation and possession of heroin and was accordingly sentenced to 6 years imprisonment.
In January 1991, T’s application for residential status was refused by the Ministry of Immigration and Ethnic Affairs (MIEA) on the ground that he was not of good character. The MIEA informed him that they would deport him to his homeland. T applied for a review of the decision and submitted references referring to the close relationship between him, his wife and children and the impact on the family if he were deported.
1. Whether the decision to reject T’s application for resident status failed to give proper consideration to the rights of his children under the CRC; and
2. Whether the ratification of the CRC by the Australian Government meant that the executive arm of government had to abide by the principles of the CRC.
The High Court allowed the appeal stating that the delegate (MIEA’s representative) failed to give proper consideration to a relevant factor, the effect of T’s deportation on his family, and Australia’s obligation as a signatory to the CRC.
The obligation under the CRC gave rise to a legitimate expectation to the respondent’s children that his application for resident status would be treated in accordance with the
terms of the CRC.
The Court said at paragraph 34 of the judgement: “Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as ‘a primary consideration’. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.”
The Court held that ratification of the CRC was sufficient to give rise to a legitimate expectation that its provisions would be considered by an administrative decision maker. Moreover all relevant legislation was (as its language permits) to be interpreted consistent with Australia’s international obligations. This was so notwithstanding the fact that its provisions had yet to be incorporated into Australian law by enabling legislation. The decision reflects the weight given international human rights instruments even where it had only been ratified but not enacted in domestic law. Ratification obliged the Australian authorities to act consistently with the terms of the CRC. There was a positive duty which the Court held existed as compared with the insistence by Courts in some Pacific jurisdictions for the passing of domestic legislation to give effect to ratification.