94 In relation to this question, we were referred to the apparent difference of view expressed in Minister for Immigration and Ethnic Affairs v Yusuf (2001) 180 ALR 1 concerning the question whether the obligation on the Refugee Review Tribunal (RRT) to prepare a written statement under subs 430(1) is in connection with the making of the relevant decision. The terms of s 430 are different from the terms of s 501G. An important aspect of that difference is that the terms of subs 430(1) may be seen to treat as interrelated or connected the making of the decision and the preparation of the written statement. There is much more to be said for the proposition that the obligation on the RRT to prepare a written statement that sets out the reasons for the decision of the RRT under subs 430(1) is in connection with the making of a decision of the RRT than there is for the proposition that the obligation to give a written notice that sets out the reasons for the decision under par 501G(1)(e) is in connection with the making of that decision, which has already occurred. However, it should be noted that in Yusuf McHugh, Gummow and Hayne JJ at [77] (with whom Gleeson CJ agreed at [1]) expressed the view (in relation to subs 430(1)) that:
"… it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made."
95 Gaudron J was of a different view. Her Honour said at [31]:
"Notwithstanding that the making of a decision and the recording of a decision are logically distinct steps, the making of a decision and the preparation of a written statement setting out that decision often constitute a single process. Given that that is so and given, also, that the expression used in s 476(1)(a) is 'in connection with the making of [a] decision', there is no basis for reading s 476(1)(a) as not extending to the procedures required by s 430 of the Act. …"
96 See also the views of Whitlam J and Gyles J in Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 at [25]-[26] which were to the effect that the giving of reasons under s 430 was not part of the decision making process and was not "in connection with" the making of the decision.
97 It is enough to say that ss 430 and 501G are different in expression. Section 501G has none of the elements of interconnection which may, perhaps, be seen in subs 430(1) and which might lead to the conclusion (though it would be contrary to Xu, supra in respect of s 430) that in any given case the making of a decision and the preparation of written reasons are part of a single process.
98 Thus, for the reasons given by Branson J and for the above reasons, I conclude that the failure by the appellant to follow the procedure required by par 501G(1)(e) does not provide a ground of review under par 476(1)(a) of the Act.
99 The question arose before the primary judge and before us as to whether the appellant had taken into account the interests of the respondent's three children. The respondent's re-amended application for an order for review (filed without objection on 7 May 2002) claimed that the appellant failed to recognise and give consideration to the interests of the children. The primary judge dealt with the question in a manner unfavourable to the appellant. The notice of appeal asserted that the issue as arising from Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 was one of procedural fairness which was excluded from review by subs 476(2); and, alternatively, positively asserted that the appellant did take the best interests of the children into account, in any event. In supplementary submissions, filed after the hearing of the appeal, counsel for the appellant also put that it had not been, and could not be, shown that the appellant had failed to take the interests of the children into account.
100 As was pointed out in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, in particular by Branson J at 630, the decision in Teoh, supra, was firmly based on principles of natural justice: see Teoh, supra at 291-2 (per Mason CJ and Deane J), 303 (per Toohey J), and see also 305 (per Gaudron J). Mason CJ and Deane J, and Toohey J based their conclusions as to natural justice on the existence and terms of the Convention of the Rights of the Child which was ratified by the Commonwealth Executive on 17 December 1990 and which entered into force for Australia on 16 January 1991 and on the reasonable expectation engendered by those matters. Gaudron J also considered that there was a common law right on the part of the children and parents arising from citizenship to have a child's best interests taken into account (her Honour said: 'at least as a primary consideration') in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare: Teoh, supra at 304. Her Honour said the following about the foundation of this common law right (at 304):
… However, I consider that the Convention is only of subsidiary significance in this case. What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings [See, in relation to the 'direct responsibility of the Crown' which founds the 'parens patriae' jurisdiction originally conferred on the English Court of Chancery, Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-59 and the cases there cited; cf at 279-280. See, in relation to the paramountcy of the child's welfare in the exercise of that jurisdiction, Marion's case, at 292-293 and the cases there cited.], which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.
101 Mason CJ and Deane J touched on this subject matter at 292 where their Honours said:
…That view entails the conclusion that there was a want of procedural fairness. It may also entail, though this was not argued, a failure to apply a relevant principle in that the principle enshrined in Art 3.1 may possibly have a counterpart in the common law as it applies to cases where the welfare of a child is a matter relevant to the determination to be made.
102 The terms of par 476(2)(a) exclude the rules of natural justice as grounds upon which application can be made under subs 476(1). In my view, that excludes an argument based on Teoh, supra, in so far as the complaint is put on the basis of the reasoning of the majority in Teoh, supra: a want of procedural fairness.
103 However, as expressed by Gaudron J at 304, the same issue can be exposed not as a want of procedural fairness should there be given no opportunity to be heard if the interests of the child are not to be taken into account as a primary consideration, but as a failure to take into account a relevant consideration required by the common law to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42; Yusuf, supra at [14]; and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707, 739 [131] and [132].
104 This was how the matter was argued before us by the respondent. The primary judge dealt with the matter at [74] to [88] of his reasons. His Honour stated (at [78]) that:
It was not in issue that the interests of the children were to be taken into account by the Minister as a primary consideration in the making of the decision, the Minister not having advised the applicant that the interests of the children would not be so regarded. …
105 The agreement by the appellant to that matter was plainly correct. Teoh, supra required this approach, unless a warning to the contrary were to be given. The appellant was not relieved of the obligation of affording the respondent procedural fairness by the terms of subs 476(2) or, indeed by the balance of the Act: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57.
106 The primary judge then examined the terms of the 'issues document', which he, correctly, had already found not to set out the reasons for the decision for par 501G(1)(e), in so far as it dealt with the best interests of the children. His Honour then said:
[84] It is to be assumed also that the Minister determined that the best interests of the children of the applicant, and their interests as Australian citizens, would only be served by a decision by the Minister not to cancel the applicant's visa. No other determination as to the interests of the children could have been made on the material before the Minister.
[85] In the absence of reasons which explained how the Minister found that important consideration to have been outweighed by other matters it is difficult to know how the Minister decided that the visa held by the applicant was to be cancelled. If it is speculated that the Minister identified the 'expectation of the Australian community' as the consideration which outweighed the best interests of the children and their interests as Australian citizens, then it is to be borne in mind that, as discussed earlier in these reasons, any determination by the Minister in that regard would have been based on misleading material presented to the Minister by the 'issues document', and the decision made on an erroneous footing (see: Re Patterson per Gummow, Hayne JJ at [196]).
[86] If the 'issues document' is to be taken to set out the reasons of the Minister then the failure of the document to explain how this issue was dealt with by the Minister meant that the reasons of the Minister in that regard were not disclosed. The reasons for a decision to cancel the applicant's visa, being a decision contrary to the best interests of the children, a matter the Minister accepted was a primary consideration according to the procedure adopted by the Minister, would have to identify the considerations taken into account which outweighed the damage to be caused to the interests of the children by such a decision. (See: Wan v Minister for Immigration and Multicultural Affairs [2001] 107 FCR 133 at [32]-[34] (FC))
[87] The 'issues document' failed to show that the Minister addressed the right question, or alternatively, dealt with that question according to law, and ground for review of the Minister's decision was established under s 476(1)(b) or (c) for jurisdictional error, or under s 476(1)(e) in that the reasons revealed an error in the interpretation of the applicable law or in the application of that law to the facts. See Yusuf per McHugh, Gummow and Hayne JJ at [82], [84]). That is to say, a matter the Minister was bound to take into account was not properly addressed in the making of the decision by reason of an incorrect understanding of what the law required the Minister to do in carrying out the decision-making process. See Vaitaiki per Burchett J at 618-619; per Branson J at 631 .
[88] I note that in Suleyman, Zakariya Harun (Farah) v Minister for Immigration and Multicultural Affairs [2000] FCA 610 per Matthews J at [44], Her Honour stated, in obiter comment, that failure to treat the best interests of children as a primary consideration would not constitute an error of law or 'any reviewable error under s 476'. The argument addressed to Her Honour appears to have been limited to a submission on the consequences in law of a denial of procedural fairness, and the occurrence of jurisdictional error in the decision-making function, as discussed above, was not an issue Her Honour was required to consider.
107 The difficulty that I have with this approach of the primary judge is that the issues document does not explain what the reasons of the appellant were. Notwithstanding the submissions of the appellant, through his counsel, that the issues document contains his reasons, it plainly does not, as explained by Branson J. One is simply not told how the appellant reached his view or what he took into account. One cannot conclude from the issues document that the best interests of the children were taken into account. It does not follow, however, that it can or should be concluded that the appellant failed to address the right question or dealt with the matter according to law.
108 The universe of material available to the appellant in the issues document and attachments (taken together) contained sufficient information as to enable the appellant to identify the best interests of the children and to take them into account. He may well have done so. The difficulty is that in the absence of reasons for the decision, and in the light of the form of the issues document, it cannot be concluded that the appellant did not take into account the best interests of the children. Nor can it be concluded that he did so. Thus, I disagree with the primary judge's conclusion that it can be concluded that the appellant failed to address the right question or dealt with the matter according to law.
109 One further matter arises from the primary judge's approach. As is plain from his Honour's distinguishing (at [88] of his Honour's reasons, see [106] above) of the decision of Matthews J in Suleyman, Zakariya (Farah) v Minister for Immigration and Multicultural Affairs [2000] FCA 610 at [44], his Honour's conclusions in [87] of his reasons concerning the failure to take matters into account (see [106] above) were founded not on the failure to inform the respondent of an approach that did not take into account the best interests of the children as a primary consideration as part of the law of procedural fairness, but on the failure of the appellant to take into account a mandatorily relevant (and primary) consideration, being the best interests of the children.
110 In support of this approach the primary judge referred (at [81]) to Vaitaiki, supra; Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133; and Gaudron J in Teoh, supra. The comments of Gaudron J support that conclusion. Vaitaiki and Wan do not. They were decided upon principles of procedural fairness in accordance with the decision in Teoh.
111 The submission was put to us by the respondent that the best interests of the children were, as a matter of common law, a consideration required to be taken into account, in the sense referred to in [103] above. The argument was not developed beyond relying on the primary judge and referring to Gaudron J in Teoh.
112 Since it cannot be shown that the best interests of the children were not taken into account, the question does not arise.
113 The parties submitted that the issue, if it were to be ventilated and decided, did not raise the need to issue notices under s 78B of the Judiciary Act 1903 (Cth) (the "Judiciary Act"). No such notices were issued. In my view, it was unnecessary to issue the notices only because the issue does not arise for decision, given the conclusion reached that the respondent could not show that the appellant had not taken into account the best interests of the children. For my part, the question whether a Minister of the Commonwealth is obliged by law (absent a contrary intention in a Commonwealth statute) to take into account the best interests of children is a matter arising under the Constitution, or involving its interpretation, because it involves the question as to the content, by way of immanent obligation, of the executive power vested by s 61 of the Constitution. To say that there is a common law obligation on a Minister or other member of the executive to act in a particular way in the exercise of power 'by the common law' is to give content by way of circumscription to the exercise of that power.
114 Gaudron J in Teoh, supra, was of the view that the body politic, and within it the Commonwealth executive, had a duty to vulnerable individuals, including children, just as kings had such a duty arising from the position of the Crown as 'parens patriae'.
115 Given the views to which I have come as to the inability to conclude that the best interests of the children were not taken into account, the issue does not arise. Thus it is neither necessary nor appropriate (in particular in the absence of the issuance of notices under s 78B of the Judiciary Act) to express any view on this question. However, it is not impermissible or inappropriate to say that the question is, I think, one of importance and some difficulty. Whatever other elements to the problem there may be, the following issues may attend any consideration of the question, if it were to arise: the origins and nature of the parens patriae jurisdiction of Courts; the notion of the 'doctrine' (if it be correctly so characterised) of parens patriae, its relationship to wardship powers and its place as part of the prerogative of the Crown; whether the power or jurisdiction in the Crown or its Courts called 'parens patriae jurisdiction' carried with it obligations of, or duties on, the Crown and, if so, the nature and any limits of those obligations or duties; whether the question of the existence of property to which the child may have been entitled affected the nature and extent of any jurisdiction, obligations or duties in connection with the interests of children; whether, if part of the prerogative, the parens patriae jurisdiction, obligations or duties was or were at some point wholly delegated to Chancery or to the Lord Chancellor; whether, if part of the prerogative at the end of the nineteenth century, the parens patriae obligations or duties became part of the fabric of the Commonwealth executive power under s 61 of the Constitution and, if so, to what extent; the effect, if any, of the notion of citizenship in the Australian federal polity on the content of the executive power within s 61, irrespective of whether s 61 contained this aspect of the inherited prerogative; whether a relevant statute or other matter has limited or otherwise affected any such obligations or duties if they could