Case: Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 ; (2002) 125 FCR 433
Outcome: applied
Counsel for the Minister submitted that the Minister had considered the best interests of each of the applicant's children and that this was obvious from [24] to [26] of the reasons. Even accepting that the Minister did not expressly state that a decision to cancel the applicant's visa was not in the best interests of his children, that was the clear import of [26]. Reference was made to a number of decisions which make it clear that the Court was entitled to infer from reasons that the matter had been addressed even if the conclusion was not expressly stated: see Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 ; (2002) 125 FCR 433 at [77] per Branson J (with whom Goldberg J at [84] and Allsop J at [88] relevantly agreed); Van Son v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 875 at [36] ; Chong Mun Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1460 at [47] ; Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054 at [47] - [51] , an appeal from which was dismissed by the Full Court in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31. Counsel for the Minister submitted that Wan , the main authority relied upon by the applicant, was clearly distinguishable on the facts. The Tribunal in Wan had not described the best interests of the child as a primary consideration: see Minister for Immigration and Multicultural and Indigenous Affars [2005] FCAFC 13 at [68] . The Tribunal in Wan had demonstrably failed to consider the interests of the children as a primary consideration and in subsequent cases, the Court had been prepared to accept that the issue had been considered notwithstanding limited express consideration of the issue: see for example Van Son and Chong Mun Chai . They had also been unable to find any decision considering or following Wan in which it had been said that findings as to which decision will best serve the interests of the child can never be inferred. 30 The identification of the best interests of the children has been described as the appropriate "starting point" for considering those interests as a primary consideration: see Wan at [26] and W157/00A at [77] per Branson J, with whom Goldberg and Allsop JJ agreed. In Wan , the Full Court was particularly critical of the Tribunal's failure to identify what the best interests of the children indicated that it should decide (at [26]). This arose in a context where the Tribunal had not identified the children's best interests as being a "primary consideration" and appeared to have approached the question of the children's best interests on the assumption that the applicant's visa would be cancelled. The Tribunal looked at how the children would be affected if their father was removed from Australia and the question of whether the children should relocate. The Full Court found that the Tribunal had erred by not identifying what the best interests of the children indicated that it should decide and, said that even if it was wrong in that conclusion, that it was "inescapable that the Tribunal did not treat the best interests of the children as 'a primary consideration'". In relation to the proper approach to be taken, the Full Court said (at [32]): ...Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. 35 In W157/00A , Branson J found that it was not open to the Court to positively conclude that the Minister did not take the respondent's children into account as a primary consideration in the decision to cancel his visa under s 501 of the Act . In that case, the respondent was advised of the decision in a letter which stated that a copy of the decision record was attached. The decision record was a departmental briefing paper, which, the Court concluded, could not on the facts be regarded as setting out the Minister's reasons for decision. However, the issues document set out various matters concerning the respondent's children and was before the Minister in making the decision. Branson J in that context said (at [77]): ...[I]n this case, as the content of the issues document reflects, everything pointed towards the best interests of the children favouring a decision not to cancel the respondent's visa. It would, in my view, be unrealistic to conclude that this was not appreciated by the Minister. 36 The approach indicated by Branson J has been applied or cited with approval by single judges in Van Son at [36] and Chong Mun Chai at [47]. The facts in Chong Mung Chai were similar to the present and, unlike in W157/00A and Van Son , the Minister had provided a statement of reasons. In Chong Mun Chai , the Minister's reasons said that the children would "suffer significant hardship" if the applicant's visa was cancelled, because the applicant's wife and children did not plan to accompany him to South Korea if he was removed. As in the present case, the Minister's reasons did not in terms state what decision was found to be in the children's best interests. In that case, Madgwick J did not accept the submission that a failure to expressly advert in the reasons to aspects of the family break up which would be contrary to the children's interests justified a conclusion that the Minister failed to consider the children's best interests as a primary consideration. Noting that the Minister had said in the reasons that she had given primary consideration to the best interests of the children, and despite the "restrained language" of the reasons in discussing the children's interests, his Honour at [47] applied the approach of Branson J in W157/00A . It should also be applied in the present case.