Case: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133
Outcome: discussed
The applicant's written submissions in relation to the remaining ground were brief. They identified the alleged error as being that "[t]here was no proper, genuine and realistic consideration of what was in the interests of the children in terms of which decision by the Minister was in their interests". Reliance was placed on the Full Court's decisions in Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. 23 At the hearing, counsel for the applicant explained the ground as having three elements. First, the Minister did not make a finding about what was in the best interests of the applicant's children, secondly, that the Minister did not make a finding about each of the three children as individuals which was contrary to the Direction, and thirdly, that there was insufficient information for the Minister to found any such findings, in any event. The applicant primarily relied on the comments of the Full Court in Wan , which held that the Administrative Appeals Tribunal ("the Tribunal") had failed to treat the best interests of the children as a primary consideration in the determination. The Full Court said at [26]: ...Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. 24 It may be noted at this point that in the present case, submissions were not directed towards the issue of the way in which a failure to identify or consider the children's best interests would constitute jurisdictional error. In both of the cases referred to by the applicant, Vaitaiki and Wan , the jurisdictional error found by the Full Court was in the nature of a breach of the legitimate expectation arising from Australia's ratification of the United Nations Convention on the Rights of the Child recognised by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273. From this it may be inferred that the applicant's case was based on the procedural right recognised in Teoh , although for reasons which will emerge, it is unnecessary to consider the basis of the applicant's argument further. 26 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. 32 The Full Court's decision in Wan followed the earlier Full Court decision of Vaitaiki , in which the Court had also concluded that the Tribunal had failed to properly consider the best interests of the appellant's children. In that case, which concerned a deportation order made by the Minister, an earlier Tribunal decision had been set aside by consent following the High Court's decision in Teoh and the matter remitted to the Tribunal. The Tribunal member appeared to misapprehend the principle established in Teoh , stating that the holding of the second hearing in itself afforded the procedural fairness to the applicant contemplated in Teoh . Nonetheless the Tribunal had gone on to consider the children's interests. However, the Tribunal approached the children's interests in a very limited way, in effect by assuming that the appellant would be deported and then considering whether the children should relocate with their father. The Tribunal failed to address the question of what the children's interests required it to decide with respect to the proposed deportation: see Burchett J at 618 and Branson J at 631. 33 There are some interesting factual similarities between Vaitaiki and Wan which may in part explain the similar outcomes. In neither case had the Tribunal clearly identified the children's best interests as being a primary consideration. In both cases, the Tribunal had approached the issue of the children's interests from a narrow perspective, proceeding mainly on the assumption that the appellant would be removed or deported and then considering the children's interests in that context. Neither Tribunal decision showed any real consideration of the interests which the children might have had in their parent's visa not being cancelled or their parent not being deported. The outcomes in Vaitaiki and Wan turned to a large degree on the particular way the Tribunal had approached the consideration of the children's interests. It may also be more difficult for the Court to draw an inference that a finding as to what decision was in the children's best interests was made when there is an issue before the decision maker concerning possible relocation by the child or children with the parent.. The need to consider how the child or children would be affected by relocating with the parent adds a considerable complication to the question of what decision is in their best interests. That is not to say however that a Court may not be prepared to drawn an inference in other factual situations: see for example Taurino v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 119. Much will depend on the particular content of the decision maker's reasons, if any. 34 The cases since Wan show that a finding as to what decision would be in the child or children's best interests may in effect be inferred in a variety of circumstances. What emerges is that the paramount issue remains whether the decision maker has considered the best interests of the child or children as a primary consideration. Whether on a fair reading a finding has been made about what decision would be in the child or children's best interests will turn very much on the facts of the case.