Case: Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
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. 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. 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.