Case: Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Outcome: cited
In his Statement of Reasons, the Minister refers to the children cumulatively, singling out only one child (Darryl Holani). This in itself would not necessarily mean that the Minister has not taken into account the best interests of each of the applicant's children, in particular Larni and Joshua as submitted by the applicant, if the reasons of the Minister indicated that their interests had been taken into account: cf Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 292; Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [283] . Primary consideration 22 In his Statement of Reasons, the Minister states that he gave primary consideration to the best interests of the children and that he gave that consideration "substantial weight". The weight given by the Minister to a relevant factor can not be the subject of judicial review: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] . However the issue of whether the Minister actually undertook the task is a matter for this Court. As noted by Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392: "In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was ." (emphasis added) (cf Branson J in Vaitaiki 150 ALR at 631) 23 The key issue in this case is whether, in making findings concerning the best interests of Larni and Joshua, the Minister has in fact given the best interests of the children "proper, genuine and realistic consideration" (Branson J in Vaitaiki 150 ALR at 631; Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [34] ). Material before the Minister 30 In my view this not a case where the interests of Larni and Joshua are "dismissed with...almost perfunctory curtness" (cf Burchett J in Vaitaiki 150 ALR at 614). Further, this is not a case where the Minister has failed to identify anywhere in his Statement of Reasons what the best interests of the children indicated that he should decide with respect to the applicant's visa (cf Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [26] - [27] ): the Minister clearly stated that the best interests of the children required that the applicant's visa not be cancelled. The only real information of relevance before the Minister concerning Larni and Joshua other than their ages concerned their close relationship with their father and the support he provided them, and this issue was clearly taken into account.