I was recently denied a visa to stay in Australia due to my criminal record. My children were born in Australia and are Australian citizens. Shouldn’t the government consider the best interests of my children when determining my visa application? They need their family to stay together!
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Answer by Kate Dodgson, Brisbane 4000 Qld
- This is a complicated area of law and remains somewhat open to the courts to interpret.
- In 1995 the High Court found that international human rights can create legitimate expectations that their provisions will apply within Australia. The expectation is created by Australia’s ratification of a treaty even if those rights have not been implemented into domestic law.
- In this case (Minister of State for Immigration and Ethnic Affairs v Teoh) the High Court held that the best interests of the child should be considered by decision makers when determining the immigration status of the father.
- This ruling was very unpopular with the government who tried several times to legislate against it.
- However the legislation was never completed and therefore the situation remains unclear.
- In a subsequent case four judges of the High Court entertained doubts about this ‘legitimate expectations’ theory but did not overrule it.