DID MR APORO ADEQUATELY RAISE HIS RELATIONSHIP BEFORE THE TRIBUNAL?
22 The Minister argued that the tribunal was not required to consider the position of the nephew and nieces as a primary consideration because Mr Aporo had not put forward a clearly articulated argument to that effect; and there was no need to inform him that it was not going to have regard to those matters as a primary consideration. The Minister contended that this was not a case where the tribunal had failed to make a finding on a substantial, clearly articulated argument relying upon established facts so as to amount to either a failure to accord procedural fairness or a constructive failure to exercise jurisdiction: see NABE v Minister for Immigration (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
23 In that case the decision was made in the context of the inquisitorial functions of the Refugee Review Tribunal, unlike here where the proceedings before the tribunal were adversarial. As the Minister pointed out, it is more difficult to find a jurisdictional error by a decision-maker of failure to address a claim where its procedure is adversarial. In such cases an applicant can be expected to articulate his or her own case, the moreso where the applicant is represented.
24 Nonetheless, in this case the tribunal was clearly apprised of the evidence from Mr Aporo's mother and brother of the relationship he had with his nephew and nieces. It referred to that relationship and the evidence to support it in the course of its reasons, but it did not consider whether or not that evidence gave rise to a need to consider the primary consideration of those children's best interests. The real question for decision is whether, in the context which I have described, the tribunal needed to do so.
25 One reason why the best interests of children are a primary consideration in making decisions which may impact upon those children is that the child or children would, in the ordinary course, not be able to articulate for themselves their own best interests in the circumstances. Adults who have a relationship with children are not always the best placed to articulate what the child or children's best interests are.
26 That is why decision-makers at common law, under the direction and in circumstances involving any international conventions, must have regard to the best interests of the child or children affected or potentially affected by a decision, as a primary consideration, for the reasons given in Teoh 183 CLR 273. Here, of course, par 2.3(c) of the direction required the tribunal to have regard to the primary interests of the relevant child or children.
27 In Wan v Minister for Immigration (2001) 107 FCR 133 at 140 [26] Branson, North and Stone JJ said (and see too at 142 [32]):
'Of particular significance was 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.'
28 The Minister accepted that because the tribunal did not ask itself that question, it had not articulated any reasoning concerning the best interests of the nephew and nieces. But, he contended that there was no need to do so because no such case was put forward by Mr Aporo.
29 I am of opinion that it was clearly articulated on the material before the tribunal that the nephew and nieces had a relationship which was capable of being described as close within the meaning of par 2.3(c), depending upon the view the decision-maker took of that relationship. Here, the tribunal never asked itself the question whether, in fact, that relationship was a close one. I appreciate that it proceeded in circumstances where Mr Aporo, himself, was not asked in-chief about the detail of that relationship. But, the tribunal was clearly informed that the relationship was an important one and there was evidence suggesting that it was close given by the mother and brother in their statutory declarations. Moreover, the tribunal had regard to Dr Banks's report which stated:
'Mr Aporo's personality can be defined as disorganised and socially isolated. …[His] verbal, analytical and problem-solving ability was found to be extremely low range, scoring worse than 99% of people of his age. His low capacity to verbally express himself, and low self-esteem from his dyslexia and impaired educational background, would make contact with his daughter an extremely difficult task.' (Emphasis in original.)
30 In the circumstances, I am of opinion that the tribunal did not consider a matter which par 2.3(c) required it to, namely whether there was any close relationship between Mr Aporo and his nephew and nieces. On the evidence it may have been open to the tribunal to come to a view one way or the other on this question. It is not the function of the court to determine the merits of such an argument, rather it is for the court to ensure that the procedures required by law are followed. The principles of procedural fairness focus on procedures rather than outcomes. They focus on what a decision-maker must do in the course of deciding how a particular power must be exercised: Appellant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96 [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
31 If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances to make an erroneous finding or reach a mistaken conclusion, and that affects the exercise or purported exercise of the tribunal's power, it exceeds its authorities or power under the law. That is a jurisdictional error which invalidates any order or decision of the tribunal which reflects it: Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Such a decision is regarded, in law, as no decision at all: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
32 The classic statement of when a decision-maker fails constructively to exercise its jurisdiction was given by Jordan CJ in Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420: see also Re Media Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 at 94 per Mason CJ, Brennan, Dawson and Gaudron JJ; Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208-209 [31] per Gleeson CJ, Gaudron and Hayne JJ; and 227-229 [82]-[85] per Kirby J. Jordan CJ said:
'But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test": Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to "misconceive its duty", or "not apply itself to the question which the law prescribes": The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-3, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [1910] 2 KB 165.'
33 It is important that decision-makers direct themselves to relevant questions concerning the best interests of children even in adversarial proceedings particularly where the children concerned cannot speak for themselves or make submissions to the tribunal. Here the children were all under the age of 10. If there were a close relationship, then their best interests had to be taken into account as a primary consideration by the tribunal. The tribunal failed to ask itself the question whether Mr Aporo had such a close relationship on the evidence which it had recited and which was clearly articulated in the statutory declarations of the grandmother and father of those children.
34 Whether or not it would have come to the conclusion that there was a close relationship is not to the point. The tribunal did not embark upon the inquiry which the direction and, thus, the Act, required it to undertake, namely to have regard to that question and answer it before proceeding to affirm the cancellation of Mr Aporo's visa.
35 I am mindful that there were very substantial discretionary factors which may be called in aid to support the tribunal's reasoning and ultimate conclusion that the primary considerations of community protection and expectations outweigh the best interests of Mr Aporo's daughter and, perhaps, his nephew and nieces. But, in my opinion, unless the tribunal first inquired into the matters which it was required by law to inquire into, it could not arrive at a result unfavourable to Mr Aporo in accordance with law.
36 For the reasons that I have given, I am of opinion that the tribunal constructively failed to exercise its jurisdiction by failing to inquire into and ask itself the question whether the relationship between Mr Aporo and his nephew and nieces fell within the meaning of 'close relationship' in par 2.3(c) of the direction.