Text, Cases and Commentary, 3rd ed,[
The Immigration Minister of Australia ordered that Mr. Teoh, a Malaysian citizen with family and children in Australia, be deported from Australia on the basis of his conviction for heroin importation and possession.
Teoh appealed this verdict to the Federal Court of Australia, which overturned the deportation order, and the High Court of Australia was then called to review the case.
Best interests of the child and international obligations. The Court held that the ratification created an expectation that in all actions concerning children, the best interests of the child would be a primary consideration.
Ratification of a convention is a positive statement by the Australian government to the world and its people that it will act in accordance with the Convention.
This positive statement creates an expectation that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children in proceedings that involve them as "a primary consideration.
Reviewing the Immigration Minister's decision, it is clear that the best interests of the children were not treated as a primary consideration and that there was no opportunity to contest his decision.
Therefore, the appeal from the Federal Court's decision, which sought to sustain the Immigration Minister's recommendation that Teoh be deported, was dismissed.
Excerpts citing CRC and other relevant human rights instruments: Lee J considered that the Executive's ratification of the United Nations Convention on the Rights of the Child the Convention was a statement to the national and international community that the Commonwealth recognised and accepted the principles of the Convention.
Although noting that the Convention had not been incorporated into Australian law, his Honour stated that its ratification provided parents and children, whose interests could be affected by actions of the Commonwealth which concerned children, with a legitimate expectation that such actions would be conducted in a manner which adhered to the relevant principles of the Convention.
This meant that, in such a context, the parents and children who might be affected by a relevant decision had a legitimate expectation that the Commonwealth decision-maker would act on the basis that the "best interests" of the children would be treated as "a primary consideration".
His Honour held that the delegate had not exercised her power consistently with that expectation because she failed to initiate appropriate inquiries and obtain appropriate reports as to the future welfare of the children in the event that the respondent were deported.
That failure involved an error of law. Carr J also considered that, although the Convention was not part of Australian municipal law, the children in this case had a legitimate expectation that their father's application would be treated by the Minister in a manner consistent with its terms.
The respondent did not rely on Art 9, no doubt because it does not seem to address decisions to deport or, for that matter, decisions to refuse permanent entry. The crucial question is whether the decision was an "action concerning children". It is clear enough that the decision was an "action" in the relevant sense of that term, but was the decision an action "concerning children"?
The ordinary meaning of "concerning" is "regarding, touching, in reference or relation to; about". The appellant argues that the decision, though it affects the children, does not touch or relate to them.
That, in our view, is an unduly narrow reading of the provision, particularly when regard is had to the grounds advanced in support of the application and the reasons given for its rejection, namely that the respondent's bad character outweighed the compassionate considerations arising from the effect that separation would have on the family unit, notably the young children.
A broad reading and application of the provisions in Art 3, one which gives to the word "concerning" a wide-ranging application, is more likely to achieve the objects of the Convention. One other aspect of Art 3 merits attention.
The concluding words of Art 3. The article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.
The impact of Art 3.
No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law is a less than compelling reason - legitimate expectations are not equated to rules or principles of law.
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.The interaction of public law with private law.
From Uni Study Guides. Jump to: navigation, search. In Minister for Immigration and Ethnic Affairs v Petrovski, Teoh has been applied in a number of cases. Show Summary Details Preview.
Whether Australia’s obligations under the Convention on the Rights of the Child—which had not been incorporated into its domestic law—could have created a legitimate expectation at law as the basis for challenging an administrative decision.
Minister of State for Immigration and Ethnic Affairs v Teoh (commonly known as Teoh's case) was an Australian court case which was decided by the High Court of Australia on 7 April The case is notable for giving unprecedented significance to the ratification of international treaties by Court: High Court of Australia.
Aug 13, · go to alphabetnyc.com to listen to the full audio summary. Teoh's Case has been followed in the Federal Court in a number of deportation cases.
7 In one case, Perez v. the Minister for Immigration and Multicultural Affairs, 8 the Court set aside an order for detention pending deportation of a Cuban national who had a long record of crimes of violence.
Minister for Immigration and Ethnic Affairs v Teoh () CLR Treaties clearly not part of ML unless implemented by domestic legislation: Teoh () and many other HC cases - Ratification of a treaty by Australia.