Case: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208
Outcome: cited
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) 24 In this case there appeared to be limited material before the Minister as to the best interests of each of the applicant's children under the age of 18. Ms Wheatley for the Minister submitted that there was no obligation on the Minister to initiate further inquiries as to information concerning the children, and indeed this point was not in contention: cf Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314, Taylor [2005] FCAFC 208 at [19] , Yalniz v Minister for Immigration and Citizenship [2007] FCA 426 at [24] . Relevant material before the Minister in relation to the applicant's case, which is also before me, included: &#8226; from the Issues Paper, information including: o the applicant has four children under the age of 18 o one child, Darryl Holani is autistic o the applicant has an order of the court dated 15 October 2003, allowing him regular contact with his children Darryl and Nikita, "at all reasonable times as may be agreed between the parties" but on no less than four days per fortnight o according to Ms Susan Amery, the mother of Joshua: "Clyde is a wonderful &amp; loving father. Our son and he are very close. The bond they enjoy is enormous and I fear the Joshua will not be able to understand or cope with suddenly losing someone who is such a big part of his life. He look (sic) up to his father and loves him so much." o it was open to the Minister to find from the information given that the cancellation of the applicant's visa and his removal from Australia would have a detrimental effect on his younger children &#8226; a submission from the applicant wherein, inter alia , the applicant stated that: o if his visa were removed his children would suffer the consequences o he had duties towards his children o there was a very close and strong bond between himself and his children &#8226; a submission from Larni Holani in support of her father, indicating a close relationship with her father. In that letter Ms Holani made no reference to access or living arrangements except to say that her mother has raised her, as has her father (RBRD 1 p 244) &#8226; a submission from Leonard Holani, a child of the applicant over 18 years of age, dated 6 October 2006 wherein Mr Holani stated that his five brothers and sisters all relied on the applicant either financially or emotionally, and that "I believe my youngest brothers and sisters would be affected the most as they are still quite young and need a father figure in their lives as does any child" (RBRD 1 p 245) &#8226; a submission from James Gordon Wallace dated 1 October 2006 (RBRD 1 pp 248-249) wherein Mr Wallace states that, inter alia , the applicant is a doting and loving father of six children, and that, with respect to the children under 18 years, "Larni Holani, his eldest daughter, presently attends the Carina San Sisto Girls College and again Clyde Holani has paid for her schooling. Darryl Holani is autistic, attends a special school and needs the ongoing support of his father. Nakita [sic] and Joshua Holani attend a public primary school prior to receiving a private school education ostensibly to be funded by their father should he still reside in Australia." &#8226; a submission from Sqn Ldr S J Curran (Rtd) dated 25 September 2006 (RBRD 1 pp 254-255) containing the following: "His elder daughter is Larni born 2 November 1989 completes year 12 this year. Three younger children are: Darryl born 21 November 1996 Nakita [sic] born 31 March 1998 Joshua born 22 August 2000 Clyde paid for his children's education to ensure they would have a good future. The four younger children show great affection for their father. I think I recall I said in my last letter it would be heartbreaking to separate the children from their father, particularly as their biological mother shows little affection toward them. Clyde's partner Vicky Wallace has been living with him since 2000. She is very good with the young children and it is obvious that they are also very affectionate toward her." 29 Second, while it appears that there was no evidence before the Minister as to the living arrangements of Larni and Joshua, and no evidence as to access arrangements, the highest at which any assumptions of the Minister could be put was that the Minister had erred in fact, and as a general rule the Court has no jurisdiction in relation to such an error. No submissions were made that any errors were jurisdictional errors. In any event, as pointed out by Ms Wheatley, no submissions were made by the applicant through his Counsel, that the living and access arrangements in respect of Larni and Joshua were such that the Minister had clearly erred in reaching his decision. In the language of the Full Court in Taylor [2005] FCAFC 208 at [19] : If the material on those matters was sparse or absent, the circumstances were not such as to oblige the Minister to procure the expansion of that material. It was readily within the power of the appellant to have done so. (cf Djalic 139 FCR at 314)