Case: Boyes v Minister for Immigration and Citizenship [2007] FCA 505
Outcome: discussed
Counsel for the Minister also submitted that the Minister was under no duty to make inquiries about the interests of the children: see Boyes v Minister for Immigration and Citizenship [2007] FCA 505 at [54] . In the present case, the applicant had provided limited material about his children and it was open to the Minister to consider their circumstances having regard to the material which had been provided together with such other materials as the Department may have obtained. 28 In the circumstances of this case, I am satisfied that the Minister did identify which decision was in the best interests of the children and treated the children's interests as a primary consideration. Paragraphs 24 to 26 of the reasons make it clear that the Minister appreciated the current arrangements concerning the children and that there had been, for some time, no contact with the applicant. The Minister nonetheless said she gave "some weight" to the desire expressed by the applicant to have contact with the children and see them grow up in Australia. The Minister clearly appreciated that the removal of the applicant from Australia would have repercussions on the children's future contact with their father, since it was not an option for the children them to travel with him. The Minister acknowledged the possibility that the court orders regarding the children could change if the applicant's circumstances were to change, meaning it was possible that the children would not remain in the care of the Minister for Community Services until they reached 18 years of age. The Minister went on to say that she had given "substantial weight" to the possibility that the children might want to re-establish contact with their father at some stage. This last statement is of some importance. It clearly favours a decision not to cancel the applicant's visa, allowing him to remain in Australia and thus creating the opportunity for his children to have a relationship with him. There is no suggestion in the reasons that the Minister viewed any of the other matters known about the children as indicating that a decision to cancel the applicant's visa would be in their best interests, or that it negated the "substantial weight" to be given to the consideration which clearly pointed to a decision not to cancel the visa. The children's present custody arrangements and lack of contact with the applicant may have been taken into account in assessing the weight to be given to any such decision or may have simply been noted as context. 29 It should also be noted that the Minister considered these issues under the heading "Best interests of the child" and referred to the Direction, which identifies the need to give primary consideration to the best interests of any children and provides guidance on the issue. These factors lend weight to the view that the Minister did consider the children's best interests as a primary consideration. It is also clear that the Minister, having considered what was known of the circumstances of each of the three children, reached a decision that non-cancellation of the visa would be in the best interests of each of the three children. The Minister had also said, in [22] of the reasons, that she gave primary consideration to each of the children. 38 I am also satisfied that any duty which the Minister may have been under to make inquiries, such as upon receiving the applicant's initial letter (which appears to be how the Minister first became aware of applicant's children), was satisfied. It is unnecessary to decide whether in fact any such duty arose. It may be noted however that Boyes , being the case relied on by the Minister in this respect, did not establish that there never could be such a duty. In that case, Kenny J found that no such duty arose on the facts of the case. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at [82] to [83], a case referred to by Kenny J in Boyes , the Court appeared to accept that certain factual situations can give rise to a duty to make further inquiries in relation to decisions by the Minister under s 501(2) of the Act , citing with approval the comments of McHugh J in Teoh (at 321) regarding the categories of circumstances which may give rise to such a duty. However, in the present case there is no basis for the contention that any such duty the Minister may have been under was not fulfilled. The applicant did not identify any particular inquiries which the Department or Minister had failed to make and which he said should have been made. The Department in fact took a number of steps to inform itself of the circumstances concerning the children, including by requesting the applicant's welfare officer to discuss matters affecting the children with the applicant and provide the Department with further information. The Department also liaised directly with DOCS and provided relevant documents to the applicant for comment.