Minister for Immigration and Ethnic Affairs vs. Teoh (1995) 183 CLR 273 (Australia)

The respondent Teoh is a Malaysian citizen who went to Australia in 1988 and was granted a temporary entry permit. He subsequently married an Australian citizen with whom he had three children, in addition to the wife's four children from previous relationships. Subsequently, the respondent applied for a permanent entry permit (resident status). While the application was pending, the respondent was convicted of six counts of knowingly importing heroin, and three counts of possession of heroin and was sentenced to imprisonment. The sentencing judge noted that the respondent's offense appeared to be due to the wife's heroin addiction. Respondent's application for residency status was then refused due to his criminal record, considering that a policy requirement for applicants is a good character. The respondent applied for review of the refusal on compassionate grounds, considering that he is the breadwinner for the family with six children under the age of 10, and was the only one keeping the family together due to his wife's heroin addiction. The application was, however, denied and an order for respondent's deportation was issued. On appeal, respondent argued that the Minister of Immigration failed to give due consideration to the hardship to his wife and her children should he be denied residency status. Reference was made to the United Nations Convention on the Rights of the Child which provides that in all actions concerning children, the best interests of the child shall be a primary consideration. However, the Convention has not yet been incorporated into Australian municipal law. The court recognized that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been incorporated into municipal law. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favor that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.