Ground 8
91 The claim of a failure to afford procedural fairness under this ground is that the Minister took no step to contact the applicant's three minor grandchildren and invite them to comment on the proposed decision. It appears to be accepted on behalf of the applicant that the interests of his grandchildren were taken into account in the Minister's decision.
92 In my opinion it is not accurate to say that the Minister had determined that the grandchildren had an interest in the decision, and that therefore he should have sought comment from them or from their guardian.
93 In my opinion, this is to confuse the interests of the grandchildren as a mandatory relevant consideration with an interest founding procedural fairness to each of them. Put differently, the grandchildren are not the subject of the decision or directly affected by it: see Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters (Professional) Australia Limited, 2017) at [7.80] and [7.100].
94 In my opinion, a requirement to take into account a particular consideration, here the interests of the grandchildren in a decision to cancel the applicant's visa, does not translate, without more, into an obligation to provide procedural fairness to those grandchildren. I am not persuaded that the power in question, to cancel the applicant's visa, defeats or prejudices the grandchildren's rights or interests so as to require that they, or their guardians, be given an opportunity to be heard. As illustrated by Ex parte Lam, the interests of a child may be taken into account without giving an opportunity to be heard to the child or to the child's carer or guardian. In the present case, in my opinion, there was no departure from procedural fairness: WZARH at [30] per Kiefel, Bell and Keane JJ and [61] per Gageler and Gordon JJ.
95 In my view the flaw in the submission is similar to that identified by Lehane J in Botany Bay City Council v Minister of Transport and Regional Development [1996] FCA 394; 66 FCR 537 at 556. His Honour said it was by no means inconsistent with a decision that there was no duty to hear persons in relation to a proposed decision to hold also that there were persons "aggrieved" by such a decision who had standing to impugn it. The Full Court dismissed an appeal: City of Botany Bay Council v Minister of State the Transport and Regional Development (1996) 45 ALD 125.
96 Lehane J said at 568:
The argument, as I think is not uncommon, proceeded on the basis that there was a relationship between the questions of standing and, in the context of procedural fairness, of a right to be heard. Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made. It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case. Ogle v Strickland was, I should think, another; and North Coast Environment Council [Inc v Minister for Resources] may well have been a third. In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority.
(Citations omitted.)
The passage was cited with approval in Griffith University v Tang [2005] HCA 7; 221 CLR 99 at 118 [45], per Gummow, Callinan and Heydon JJ.
97 In the present case, the grandchildren of the applicant are not parties to the application and it is difficult to see how the applicant may complain of a denial of procedural fairness to the grandchildren, rather than to himself: see Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; 207 FCR 178 at [99] where the Full Court said that the appellant in that case could not complain of a denial of procedural fairness to someone else. Contrary to the submission on behalf of the applicant, taking Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 to mean that a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all, does not affect who may come to the court for relief. I see no analogy between the position of the applicant and a public interest group.
98 It is submitted on behalf of the applicant that in Ex parte Lam it was not argued that obligations of procedural fairness were owed to the children directly. This would appear to be the case. Indeed McHugh and Gummow JJ noted at [56] that counsel for the applicant accepted that, in the absence of the statement in the Departmental letter of 7 November 2000, procedural fairness would not have required the officers of the Department to interview the carers.
99 But, in my opinion, neither the reasons nor principle provides a foundation for the submission that the Minister denied procedural fairness to persons not parties to the present proceedings.
100 In Ex parte Lam the children had not been contacted but there was a letter from a Ms Tran, the letter being described as from the carers of the children. The narrow point argued was that the officer of the Department, having stated in a letter dated 7 November 2000 to the applicant that the Department "wishes to contact [the children's carers] in order to assess your relationship with the children, and the possible effect on them of the decision to cancel your visa", denied procedural fairness to the applicant. This argument was rejected. One of the reasons for rejecting the submission was that the applicant had not lost an opportunity to make representations. Further, as Gleeson CJ said at [38], there was no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children. As Hayne J said at [110], material before the Minister for him to consider in making his decision included detailed material about the children and the effect on them that cancelling the applicant's visa would have.
101 Independently, in my opinion, it is also difficult to reconcile this contention with any practical injustice suffered by the grandchildren where the Minister concluded, at [40], that it was in the best interests of the three grandchildren not to cancel Mr Degning's visa: see Ex parte Lam at [37]-[38].
102 I reject ground 8.