Federal Court (Full Court). Can it be said that, "absent prior notice here that the weight that the Tribunal might attach to its consideration of the best interests of affected children would be less than the weight that it might attach to its consideration of a different matter or circumstance, procedural fairness would be denied"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: If a primary judge finds that the administrative decision-maker made no jurisdictional errors, and it is established on appeal that a jurisdictional error was made, will it follow that the primary judge "will have erred by failing so to conclude; and, equally, if it was not, then no such error will have transpired"?
Question 2: In the context of the Tribunal's review of a decision made under s 501CA(4) of the Migration Act 1958 (Cth), are there three levels to the directional weightiness hierarchy: protection of the Australian community ranks highest, followed by the other “primary considerations”, followed by the “other considerations”?
Question 3: Can it be said that, "absent prior notice here that the weight that the Tribunal might attach to its consideration of the best interests of affected children would be less than the weight that it might attach to its consideration of a different matter or circumstance, procedural fairness would be denied"?
Question 4: Is Direction 110 invalid or unlawful, in that "its terms are internally inconsistent, in that the best interests of affected children are simultaneously held up as a “primary” consideration and a consideration that is “generally” to be given less weight than the protection of the Australian community"? In other words, is Direction 110 invalid or unlawful, in the sense that the best interests of affected children cannot simultaneously be and not be “primary”?
Question 5: Can it be said that “nothing in [Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273] stands for the proposition that the [United Nations Convention on the Rights of the Child] must be given effect in decision-making or that a decision-making process which does not require the best interests of children to be treated as a primary consideration is itself unlawful”?
Question 6: Has the concept of “legitimate expectation” in Teoh "been abandoned both as a touchstone of a requirement to accord procedural fairness and as a basis for determining the content of procedural fairness requirements", and replaced by the question of “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”?
Question 7: If the answer to Question 6 is 'yes', does Teoh the nevertheless remain authority for the following proposition: "Absent statutory or executive indications to the contrary, if an administrative decision-maker proposes to make a decision otherwise than in accordance with the principle that the best interests of the child are a primary consideration in all actions concerning children, the decision-maker must give notice to the persons affected and an opportunity to be heard against the taking of such a course"?
The FCAFC answered those questions as follows: