FEDERAL COURT OF AUSTRALIA

DLJ18 v Minister for Home Affairs [2019] FCAFC 236

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondent, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    This is an appeal from a decision of a Judge of this Court: DLJ18 v Minister for Home Affairs [2018] FCA 1650. His Honour there dismissed an application seeking review of a decision of the Minister made under s 501CA(4) of the Migration Act 1958 (Cth) (the “Migration Act”) not to revoke a decision to cancel the now-Appellant’s visa.

2    The Minister had provided reasons for his decision. One issue in need of resolution before the primary Judge was whether the Minister had failed to take into account, as a mandatory relevant consideration, that once the now-Appellant was removed from Australia there was a prohibition upon his ability to return by reason of cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”). In resolving that issue, the primary Judge (inter alia) was not satisfied that the decision in Tanielu v Minister for Immigration and Border Protection [2014] FCA 1221, (2014) 226 FCR 154 (“Tanielu”) was “clearly wrong and should not be followed”: [2018] FCA 1650 at [60]. The primary Judge also concluded that it was “tolerably clear, as a practical matter, that the Minister took into account that the applicant would not, or was highly unlikely to, be able to return to Australia”: [2018] FCA 1650 at [65].

3    It is concluded that the appeal should be dismissed, but for reasons different to those of the primary Judge.

4    The reasons for so concluding can be briefly expressed.

5    The starting point is the conclusion that the entirety of the reasoning in Tanielu should not be followed. As a process of statutory construction, the legal consequences of the decision presently made by the Minister were matters that were required to be taken into account: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [6] to [9], (2014) 220 FCR 1 at 4 to 5 per Allsop CJ and Katzmann J (“NBMZ”); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 40 per Mason J. Contrary to the reasoning in Tanielu (at paras [26] to [27]), the decision in NBMZ and the Migration Act itself do not permit a process of statutory construction which permits a conclusion that some legal consequences of a decision can be characterised as lacking “legal proximity or … practical immediacy…”. The process of statutory construction does not permit of some consequences being more immediate than others.

6    Any process of statutory construction is a process which stands separate and apart from the application of the statutory scheme to the facts of an individual case. It is only after the relevant statutory regime has been properly construed that it can thereafter be applied to the facts and circumstances of a particular case – including the facts in issue and the submissions advanced for consideration.

7    The primary Judge was correct to conclude, however, that the decision in Tanielu was not “clearly wrong” and should for that reason be followed by a single Judge sitting at first instance: [2018] FCA 1650 at [60]. But the entirety of the reasoning in Tanielu, with the greatest of respect to the Judge who decided that case, cannot be accepted.

8    And the primary Judge was further correct to infer that the Minister failed to take into account “that a consequence of the decision was that, once removed, the applicant would be prevented from returning to Australia by operation of the ‘special return criterion’…”: [2018] FCA 1650 at [53]. The express reference by the Minister in his statement of reasons (at para [26]) to ss 48A and 501E of the Migration Act, and his failure to refer to cl 5001(c) of Sch 5 to the Migration Regulations, exposes his failure to understand that it was the latter provision which also imposed an important and fundamental constraint upon an ability to return to Australia. The reasons of the Minister are not to be read with an eye keenly attuned to the perception of error (cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ) but a fair and balanced reading of the reasons of an administrative decision-maker “should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 296 per Marshall, North and Flick JJ.

9    The function of providing reasons for an administrative decision, including decisions of a Minister, serves as an important discipline upon a decision-maker to ensure that he or she properly understands the statutory regime to be applied. The provision of reasons also serves the purpose of informing a reviewing court as to the basis upon which a decision-maker has proceeded: cf. Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [55], (2015) 252 CLR 480 at 501 per French CJ, Crennan, Bell, Gageler and Keane JJ.

10    If it were necessary for the Minister to consider cl 5001(c) of Sch 5 to the Migration Regulations when making his decision, it would not be a sufficient answer to contend that a consequence of an adverse decision, such as that made in the present case, would almost invariably result in a prohibition upon a person seeking to return to Australia. The provision of reasons (or an absence of reasoning) will expose whether the Minister correctly understood and applied the statutory regime. There is an overriding importance in findings being made directed to those legal consequences that must be taken into account. Findings more generally expressed and directed to other issues should not be permitted to be invoked to support a process of reasoning neither expressed nor necessarily implicit in a decision-making process.

11    Again assuming it were necessary for the Minister to consider cl 5001(c) of Sch 5 to the Migration Regulations, such findings as were made by the Minister (for example at paras [17] and [43] of his reasons for decision) could not be relied upon to support an inferential process of reasoning that the Minister implicitly proceeded upon an understanding that those findings addressed the legal constraints upon returning imposed by that provision of the Migration Regulations. Such findings as were made were not directed to either any submission that the now-Appellant would be precluded from returning to Australia or any submission directed to the legal consequences of the decision being made. Those findings were directed to different factual issues in need of resolution, namely the “best interests of minor children” or (perhaps more equivocally) the “extent of impediments if removed”. To the extent that the primary Judge reached a contrary conclusion (at para [65] of his Honour’s reasons), concurrence cannot be expressed with that conclusion.

12    If it were necessary to consider cl 5001(c) of Sch 5 to the Migration Regulations, the failure of the Minister in the present case to expressly identify in his reasons the consequence that the now-Appellant would be precluded from returning to Australia would invite scrutiny as to whether the Minister properly understood the legal regime. And the fact that findings may have been made that were consistent with a proper understanding of the legal regime would fail to provide a sufficient basis upon which to conclude that the Minister proceeded to resolve the claims made by the now-Appellant upon a proper, albeit unstated, understanding of the legal regime. Such findings may be as equally consistent with the manner in which other issues were being addressed and resolved as with an understanding that the legal consequence of the decision would preclude a return to Australia. Upon such an approach, although it may not have been necessary for the Minister to expressly refer to cl 5001(c) of Sch 5 in his reasons for decision, it would be the absence of reference to the existence of a legal constraint and the absence of findings directed to that legal constraint which could expose error committed by the Minister.

13    All such observations, however, do not direct attention to the central issue to be resolved on appeal – namely, whether appellable error is exposed in the decision of the primary Judge to dismiss the application seeking review of the Minister’s decision made under s 501CA(4) of the Migration Act.

14    That question is to be answered in the negative such that the appeal should be dismissed. And that conclusion is reached for either of two reasons.

15    First, to employ the language used in NBMZ, the “statutory (that is, the legal) consequences” ([2014] FCAFC 38 at [7], (2014) 220 FCR at 4 per Allsop CJ and Katzmann J) that were mandatory relevant considerations in the present proceeding are most probably confined to those “consequences” expressly or implicitly imposed by the Migration Act itself; the “consequences” imposed by the Migration Regulations would most probably fall outside of those matters which must necessarily be taken into account. Any future decision to be made pursuant to cl 5001(c) of Sch 5 to the Migration Regulations could well be characterised as dependent upon a “speculative” future application and as a decision extraneous to those “consequences” imposed by the Migration Act. Expressed differently, and to employ the language of Jessup J in Tanielu, a decision made pursuant to cl 5001(c) of Sch 5 to the Migration Regulations would lack “legal proximity” to those decisions made under the Migration Act. To this extent, concurrence can be expressed with the approach more generally expressed by Jessup J. As observed by Perram J, it “will rarely be possible to discern from the subject matter, purpose and scope of the relevant statute that matters of speculation are mandatorily to be taken into account”: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 at [18].

16    Second, and even if it were to be assumed that the constraints imposed by cl 5001(c) of Sch 5 to the Migration Regulations necessarily had to be taken into account (and were not in fact taken into account), any error on the part of the Minister would not have been “material” to the decision reached. It may well be doubted whether the now-Appellant ever made a claim founded upon cl 5001(c) of Sch 5 of the Migration Regulations or made a claim that called upon the Minister to consider that provision of the Migration Regulations. Irrespective of whether such a claim was made, and hence is a claim in need of resolution, any consideration by the Minister could not “realistically have resulted in a different decision”: cf. Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45], (2019) 264 CLR 421 at 445 per Bell, Gageler and Keane JJ. Any error committed by the Minister, it is thus concluded, was not an error “material” to the decision reached such as to expose jurisdictional error: cf. Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29]-[30], (2018) 264 CLR 123 at 134-135 per Kiefel CJ, Gageler and Keane JJ. As their Honours there concluded, the error “could have made no difference to the decision that was made in the circumstances in which [the] decision was made”.

17    Notwithstanding such reliance as was placed by the primary Judge upon the decision in Tanielu, concurrence can thus nevertheless be otherwise expressed with the conclusion reached by the primary Judge.

18    It is thus concluded that the appeal should be dismissed with costs.

Associate:    

Dated:    19 December 2019

REASONS FOR JUDGMENT

BROMBERG J:

19    The appellant appeals from a judgment of a single judge of this Court delivered on 6 November 2018 and published as DLJ18 v Minister for Home Affairs [2018] FCA 1650. By that judgment, the primary judge dismissed the appellant’s application seeking judicial review of the decision of the second respondent (“Minister”) under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the appellant’s Class XA Subclass 866 (Protection) visa (“visa”).

20    Before the primary judge the appellant contended that the Minister failed to take into account, as a mandatory relevant consideration, that a consequence of his decision not to revoke the cancellation of the appellant’s visa (“non-revocation decision”), was that the appellant would be precluded from returning to Australia once removed. In support of that ground the appellant relied on NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, where the Full Court of this Court held that the Minister was required to take the legal consequence of the decision there made into account in determining whether to refuse to grant a protection visa under s 501(1) of the Migration Act. Relevantly, Allsop CJ and Katzmann J said:

[9]    The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

[10]    The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligation of non-refoulement and the terms of the Act.

…

[17]    Here, it is to be inferred from his statement of reasons that the Minister did not consider or take into account the fact that, if the visa were refused, the applicant would face the prospect of indefinite detention. This was the effect of Australia’s obligation of non-refoulement and ss 189, 196 and 198 of the Act. For the reasons given above and for the reasons given by Buchanan J this matter could not lawfully be overlooked.

[18]    The above is a sufficient basis to conclude that the Minister’s decision was vitiated by jurisdictional error in his failure to take into account a relevant consideration and for our agreement with the orders proposed by Buchanan J.

21    As the primary judge recorded (at [43]), the Minister conceded that the failure to consider the legal consequences of a decision not to revoke a visa cancellation decision may amount to jurisdictional error by reason of the principle in NBMZ. Furthermore, it was not in contest that a legal consequence of the non-revocation decision was that, once removed from Australia, the appellant would be prevented from returning by operation of the “special return criteria” under cl 5001(c) of Sch 5 of the Migration Regulations 1994 (Cth). That was so because the appellant would not be able to satisfy that criteria if he applied for a visa seeking to return to Australia.

22    At [53] of his reasons for decision, the primary judge inferred that the Minister “did not take into account that a consequence of the decision was that, once removed, the [appellant] would be prevented from returning to Australia by operation of the ‘special return criteria’ under cl 5001(c) of Sch 5 to the Regulations if the [appellant] were later to make an application for a visa”.

23    Nevertheless, his Honour determined that the Minister’s non-revocation decision was not affected by jurisdictional error. That is because, adopting the reasoning of Jessup J in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154 at [27], which the primary judge considered was not clearly wrong and should therefore be followed, the primary judge held that the legal consequence not considered by the Minister, lacked sufficient “legal proximity” or “practical immediacy” to the non-revocation decision to justify the conclusion that the decision would not have been validly made without a consideration of it. That conclusion and the basis for it was expressed by the primary judge at [61] as follows:

[61]    Here, as the Minister submitted, the consequence of cl 5001(c) of Sch 5 would only become a practical reality if the Applicant sought to return to Australia. Whilst the applicant might seek to return, or might even be likely to seek to return given his particular circumstances, it is not a certainty. If he did choose to seek to return, it is not clear when that might occur. The success of his future attempt would depend on the state of the law at that time, although there is nothing to indicate that it is likely to change. In materially similar circumstances to the present case, Jessup J considered the fact that the consequence brought about by the ‘special return criteria’ in Sch 5 to the Regulations only became a ‘practical reality’ if the applicant sought to return to Australia told against sufficient ‘legal proximity’ or ‘practical immediacy’ to the decision to justify the conclusion that, as a matter of law, the decision could not have been made validly without a consideration of it: Tanielu at [27].

24    By ground 1 of his appeal, the appellant contended that the approach taken in Tanielu requiring “legal proximity” or “practical immediacy”, imposed an unnecessary and unjustifiable gloss on the principle in NBMZ. I would not agree that “legal proximity” is extraneous to the requisite assessment, but would agree that “practical immediacy” is. The two concepts are not synonymous even though they were seemingly expressed as alternatives by Jessup J. I consider that “practical immediacy” is not an appropriate lens through which the requisite process of statutory construction may be undertaken. Considerations concerned with the practical impact of a decision will invariably be factually idiosyncratic – framed by reference to the particular case and the circumstances faced by the individual the subject of the decision. Whereas, the exercise that must first be performed is an exercise grounded in the proper construction of the statute – namely, whether “there may be found in the subject-matter, scope and purpose of the statute” a mandatory consideration arising by implication (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, Mason J).

25    Consistently with the approach taken by Robertson, Moshinsky and Bromwich JJ in Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 at [135]-[136], whether a nexus exists sufficient to support an inference that a legal consequence must be taken into account may be assessed by reference to the proximity of the consequence to the power or discretion being exercised. In that case, a legal consequence was considered “too remote” (at [135]) and “outside the ambit of the statute” (at [136]), to support an inference that the consequence must be taken into account.

26    Further, that the sufficiency of the requisite nexus may be based on an assessment of proximity, is consistent with the approach of the Full Court (Kenny, Flick and Griffiths JJ) in Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146. In applying the principle in NBMZ, the Full Court at [84] emphasised that in making a decision in the exercise of a statutory power, the legal framework within which that decision is made must be taken into account. That framework, as the Full Court went on to say, includes the “direct and immediate statutorily prescribed consequences of the decision in contemplation.” Putting the same proposition in other words, the Full Court at [88] said that a “decision-maker must have regard to the statutory framework in which the provision conferring the power sits. This framework includes the direct and immediate statutory consequences of an exercise of the power”. As the Full Court there observed, that principle is consistent with the High Court’s decision in Re Patterson; Ex Parte Taylor (2001) 207 CLR 391 where (at [196]) a “misconception as to what the exercise of the statutory power entailed” was held to constitute jurisdictional error.

27    It seems to me, with respect to the judge who determined Tanielu, that the correct approach to determining whether a sufficient nexus exists to support an inference that a particular legal consequence is a mandatory consideration, is not concerned with questions of “practical immediacy”. What is required is an assessment of whether the particular legal consequence flows from the statutory framework which the decision-maker must have regard to. The bounds or ambit of that statutory framework are to be assessed by reference to the subject-matter, scope and purpose of the statute in question.

28    On the appeal, the Minister contended that an assessment based on proximity was appropriate and that the legal consequence of the non-revocation decision was too remote for the reasons relied upon by the primary judge at [61] in the passage extracted above. However, the primary judge there took into account considerations concerned with practicality rather than proximity. I do not accept that a lack of certainty as to whether and when the appellant may seek to return to Australia justifies a conclusion that the legal consequence of the appellant being precluded from returning to Australia is “too remote” and consequently need not have been taken into account. Considered through the prism of the subject-matter, scope and purpose of the Migration Act and, bearing in mind that the legal consequence in question flows directly from regulations made to give effect to that Act, the consequence for a person the subject of a non-revocation decision that he or she would be precluded from returning to Australia is, in my view, clearly within the ambit of the statutory framework that the maker of a non-revocation decision has to have regard to.

29    The more persuasive contention made by the Minister, which was ultimately put as the Minister’s primary contention, was that the Minister did take into account the consequence of the non-revocation decision that the appellant would be precluded from returning to Australia. That asserted fact was relied upon by the Minister to deny jurisdictional error on the basis of a failure to take into account a mandatory consideration and, in the alternative, on the basis that any such error was not material, in the sense that the Minister’s decision under s 501CA(4) could not realistically have been different if specific consideration had been given to the “special return criteria”.

30    It must be accepted, as the appellant conceded, that an absence of any express reference in the reasons given by the Minister to the “special return criteria” does not preclude the conclusion that the Minister took into account that the appellant would be prevented from returning to Australia. Nor would the absence of an express finding that the appellant would be so precluded be determinative of whether that consequence was considered by the Minister.

31    There is support for the conclusion that the Minister made the non-revocation decision on the factual assumption that a consequence of that decision was that the appellant would be precluded from returning to Australia and that the preclusion would be ongoing rather than temporary.

32    A fair reading of the Minister’s decision makes it clear that the primary basis upon which the appellant contended that there was “another reason” (s 501CA(4)(b)(ii)) why the visa cancellation decision should be revoked, was the harm that would be occasioned on the appellant and his wife and three minor children by the prospective separation brought about by the appellant’s removal from Australia. It is also plain that the Minister accepted the submissions made that the apprehended separation would be ongoing. In that respect, the appellant or his wife had stated in representations made to the Minister that:

    the appellant feared that if he is removed he will be “separated” from his daughters and that he does not “want to lose them”;

    sending the appellant back to China “would mean [the appellant’s] daughters would grow up without a father”;

    the appellant’s family was everything to him “he does not want to lose them and fears if he is removed he will not be able to provide for them”; and

    the members of the appellant’s family “love each other and cannot be separated”.

33    That the Minister accepted those representations is apparent from the Minister’s acceptance that the appellant’s wife and children would experience emotional and financial hardship and the Minister’s acceptance that the appellant himself may experience emotional and financial hardship if removed from Australia and separated from his wife and children.

34    It is also clear that the Minister’s acceptance of both the fact and nature of the apprehended separation occurred in circumstances where it was also accepted that the appellant’s wife and children were all Australian citizens who would continue to reside in Australia rather than “return to China with [the appellant]”. It must follow that the Minister appreciated and proceeded on the basis that, if the appellant was removed from Australia by reason of the non-revocation decision, the basis for his ongoing separation from his wife and children would be his inability to return to Australia.

35    In my view, an inference is available that the Minister understood and took into account that a consequence of the non-revocation decision was that the appellant would be precluded from returning to Australia. The Minister made no express finding to that effect but so much is implicit from the reasons given.

36    However, what is neither express nor necessarily implicit is whether the Minister understood and appreciated that the source of the preclusion on the appellant’s return to Australia was the “special return criteria” in cl 5001(c) of Sch 5 of the Migration Regulations.

37    That raises the possibility that although the Minister took into account a particular consequence of the non-revocation decision, he did not recognise and therefore did not appreciate, that the consequence taken into account by him was a legal consequence of the non-revocation decision. Whether that failure has the result that the Minister failed to take into account the legal consequence of the non-revocation decision is not a matter that I need to determine. Even if there was error of that kind, that error was not “material” because as Kiefel CJ, Gageler and Keane JJ said in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30], the error “could have made no difference to the decision that was made”.

38    There is no basis for thinking that where the Minister took into account the consequence of the non-revocation decision – being the appellant’s preclusion from returning to Australia – the result could have been different if only the Minister had appreciated that that consequence was a legal consequence of the non-revocation decision referable to the “special return criteria”.

39    For those reasons, ground 1 of the appeal must be dismissed.

40    By his second ground of appeal, the appellant contended that he had made representations that he would not be able to return to Australia which the Minister failed to consider. For reasons already given, I accept that such a representation was made by the appellant. However for reasons also already addressed, I reject the contention that the Minister failed to consider that the appellant would be precluded from returning to Australia.

41    The second ground of appeal must also be rejected.

42    For those reasons I would dismiss the appeal and order that the appellant should pay the Minister’s costs of the appeal.

Associate:    

Dated:    19 December 2019

REASONS FOR JUDGMENT

SNADEN J:

Background

43    The appellant is a citizen of the People’s Republic of China. He came to Australia in August 2003 and, on 21 October 2008, was granted a Class XA Subclass 866 (Protection) visa under the Migration Act 1958 (Cth) (hereafter, the “Act”). He and his wife—who is also of Chinese origin—have three young daughters, all of whom are Australian citizens.

44    In March 2013, the appellant was convicted of serious sexual and property offences, for which he was sentenced to a total of nine years’ imprisonment. On 17 May 2016—and in consequence of those convictions—the respondent (hereafter, the “Minister”) cancelled the appellant’s visa pursuant to s 501(3A) of the Act (hereafter, the “Cancellation Decision”).

45    In response to an invitation extended to him under s 501CA(3) of the Act, the appellant petitioned the Minister to revoke the Cancellation Decision. He accepted that he did not pass the “character test” for which s 501(6) of the Act provides; but maintained, nonetheless, that there were other reasons (summarised below) why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Act. On 14 November 2017, an “International Treaties Obligations Assessment”—prepared, it would appear, by or at the instigation of the Minister or his department—concluded that the appellant was not owed international non-refoulement obligations.

46    By a decision made on 29 May 2018, the Minister declined to revoke the Cancellation Decision (hereafter, the “Non-Revocation Decision”). Written reasons were supplied in support of that decision, the relevant particulars of which are analysed in more detail below.

47    On 3 July 2018, the appellant applied to the court under s 476A of the Act for judicial review of—that is to say, for prerogative relief directed at—that Non-Revocation Decision. He alleged that the Non-Revocation Decision was tainted by jurisdictional error manifest in (amongst other things) the Minister’s failure to appreciate that, unless the Cancellation Decision were revoked, he would be removed from Australia and thereafter prevented from returning, which would result in his permanent separation from his family. The appellant maintained that that inability to return was a matter that the Minister was obliged to consider before (and in the course of) making the Non-Revocation Decision. That, he said, arose either because he had identified it as a reason why the Minister ought to have revoked the Cancellation Decision, or because it was a legal consequence of non-revocation to which the Minister was obliged to have regard in any event.

48    On 6 November 2018, the primary judge dismissed that application: DLJ18 v Minister for Home Affairs [2018] FCA 1650 (Thawley J; hereafter, the “Primary Decision”). It is from that judgment that the appellant now appeals. He does so on a single ground, namely that the primary judge erred by not accepting that the Non-Revocation Decision was the product of jurisdictional error of the kind described above.

The legislative scheme

49    Section 501 of the Act stipulates circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it provides as follows:

501     Refusal or cancellation of visa on character grounds

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7))…

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more…

50    Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for a revocation of that decision. The provision relevantly provides as follows:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

…

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

51    Schedule 5 to the Migration Regulations 1994 (Cth) (hereafter, the “Regulations”) provides for “[s]pecial return criteria”. Item 5001(c) of that schedule stipulates a criterion that a visa applicant not be:

a person whose visa has been cancelled under section 501, 501A or 501B of the Act, if:

(i)    the cancellation has not been revoked under subsection 501C(4) or 501CA(4) of the Act; or

(ii)    after cancelling the visa, the Minister has not, acting personally, granted a permanent visa to the person…

52    It was common ground, both before the primary judge and before the court on appeal, that item 5001(c) of Sch 5 to the Regulations had, or may or would likely have, the effect of precluding the appellant from returning to Australia once removed.

issues arising in the appeal

53    The present appeal poses two central questions: first, in making his Non-Revocation Decision, did the Minister take account of the possibility that, once removed from Australia, the appellant might be prevented from ever returning; and, second (and assuming that the answer to the first question is “no”), was he obliged to?

54    The answer to the second question itself requires analysis in two parts: if there was such an obligation, did it arise because the appellant’s future inability to return to Australia was something that he advanced as a reason why the Minister ought to revoke the Cancellation Decision; or did it arise because that possibility was an example of a legal consequence of the Minister’s decision, consideration of which was a requirement that conditioned the proper exercise of his power to make it?

55    The primary judge concluded that the Minister was not obliged to consider the possibility (or likelihood or inevitability) that the appellant, once removed from Australia, might never be able to return. Relying upon Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154 (Jessup J; “Tanielu”), the primary judge concluded that the appellant’s future inability to return to Australia was not a legal consequence (in the sense that the authorities contemplate) of the Non-Revocation Decision; and, therefore, was not a matter upon consideration of which the valid exercise of the Minister’s power under s 501CA(4) of the Act was conditioned: Primary Decision, [61]. His Honour, in any event, answered the first question in the affirmative: Primary Decision, [65] (below, [71]). The appellant, as he must, challenges both conclusions.

56    There is a third, more peripheral question that arises only if the answers to the first two are, as the appellant submits, “no” and “yes” respectively: that is, was the Minister’s failure (if there was one) to take account of the possibility that the appellant might never be able to return to Australia sufficiently material to the Non-Revocation Decision as to amount to jurisdictional error?

57    For the reasons that follow, I am of the view that:

(1)    the Minister did take account of the possibility (indeed, probability) that, once removed from Australia, the appellant would not be able to return;

(2)    even if he didn’t, he was not obliged to (at least not insofar as it is said that that possibility was a legal consequence of the Non-Revocation Decision); and

(3)    the question of materiality does not arise.

58    Consequently, I reject the appellant’s central contention that the Non-Revocation Decision is liable to prerogative relief as the product of jurisdictional error. Albeit for reasons that differ slightly from theirs, I agree with the other members of the court that the appeal should be dismissed with costs.

THE POSSIBILITY THAT THE APPELLANT MIGHT NOT RETURN

59    It is convenient, at this point, to record some of the observations that the Minister made in his Non-Revocation Decision. At [12], he identified the representations that the appellant advanced as to why the Cancellation Decision ought to be revoked:

12.    In the representations/document submitted by or on his behalf, [the appellant] has articulated reasons why the original decision should be revoked, which include:

-    He is remorseful for his crimes and will not commit any other crime, as he does not want to lose his family.

-    He has made efforts to rehabilitate while in prison, undertaking courses to manage his alcohol dependency and emotions.

-    He has seen a psychologist and taken medication for depression while in prison and has recovered.

-    He has three minor children in Australia who are currently parented by his wife. He has a close relationship with his children, who need him to remain in Australia.

-    His wife is having a stressful time parenting them [single-handedly] and needs his support and help.

-    He would not expect his family to move with him to China if he were removed there because he fears they would be persecuted there.

-    [The appellant] submits … that he will face harm if returned to China due to being a Falun Gong supporter and a person who may be imputed with being a Falun Gong practitioner, and because he is a person who previously held a Protection visa. He fears being imprisoned on his return to China.

60    The Minister then went on to consider the impact of the Cancellation Decision upon the appellant’s family. At [14] and [15] of the Non-Revocation Decision, he observed (emphasis original):

14.    I note [the appellant] has three minor children who are all Australian citizens. They are [names and ages redacted]. They reside with their mother, [the appellant]’s wife... [The appellant] submits his daughters visited him at least twice a week while he was in prison and he rings them every day.

15.    I have regard to [the appellant]’s submission that he has a close relationship with his daughters, that before his imprisonment he supported them financially as the sole income earner for the household and he would take them to parks, movies and ‘do all the things a father does with his children’. He states he would not want his daughters moving to China as he fears they will face persecution there, therefore, if he is removed to China he will be separated from them. He states his family is everything to him, his daughters desperately need their father to provide for them, he does not want to lose them and he does not want them to be displaced and to have to live only on Centrelink benefits.

61    At [17] of the Non-Revocation Decision, the Minister considered a contention advanced on the appellant’s behalf by his wife, namely that “…sending [the appellant] back to China would mean their daughters would grow up without a father…”

62    At [26] and [27] of the Non-Revocation Decision, the Minister said as follows:

26.    I accept that if I do not revoke the original decision to cancel [the appellant]’s Protection visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration regulations). Also, in terms of a Protection visa, [the appellant] will be prevented by s48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determines that s48A of the Act does not apply to him – s48A(1B) and s48B of the Act refer).

27.    I note that a consequence of not revoking the original decision to cancel [the appellant]’s Protection visa is that he will be liable for removal from Australia under s198 of the Act.

63    At [28] of the Non-Revocation Decision, the Minister addressed the appellant’s fears of subjection to harm upon his return to China. In short, the Minister accepted, on the strength of the International Treaties Obligations Assessment referred to above, that those fears were not well-founded.

64    At [32] and [33], the Minister considered the strength, nature and duration of the appellant’s ties to Australia, observing (emphasis original):

32.    I have considered [the appellant]’s submission that he has the support of his wife, who has forgiven him for his offending and who has been looking after their daughters on her own. He believes she is tired and stressed from being a single parent and that if he were removed from Australia she would surely face more difficult times without him. He adds his family is everything to him; he does not want to lose them and fears if he is removed he will not be able to provide for them.

33.    I note that [the appellant’s wife] states she has found it stressful being a single parent and sincerely hopes that their family will soon reunite because they love each other and cannot be separated adding that she could not go back to China because she is afraid of being persecuted by the Chinese government for practicing Falun Gong. She adds [the appellant] is the primary breadwinner for the family, they need him to financially support them and that life without his emotional and financial support has been very tough. This has meant that the children have had to miss out on ‘normal childhood experiences like family trips’ and I have taken this into consideration.

65    Later, the Minister accepted, “…that [the appellant] may experience emotional and financial hardship if removed from Australia and separated from his wife and children, as he has indicated they will not return to China with him” (Non-Revocation Decision, [43]).

66    The Minister next addressed the nature and severity of the appellant’s offending, and his stated commitment to refrain from committing additional crimes in the future. The Minister observed that the appellant’s “fear of losing his family” was “a strong motivating factor” that inclined against the possibility of repeat offending (Non-Revocation Decision, [57]).

67    Weighing the competing considerations together, the Minister concluded that there was not “another reason”, for the purposes of s 501CA(4) of the Act, that warranted revocation of the Cancellation Decision. He thus declined to exercise his discretion to revoke that decision.

68    The appellant maintains that, in doing so, the Minister must be understood not to have considered the strong possibility (if not the inevitability) that, absent revocation of the Cancellation Decision, he would be removed from Australia and would be unable to return thereafter. That combination of consequences, he said, would result in his permanent separation from his wife and children (who, he indicated, would remain in Australia). That the Minister failed to consider that reality is, he says, evident as a matter of inference from the fact that the Non-Revocation Decision contains no reference to, or analysis of, the prospect that the appellant’s removal from Australia would be permanent.

69    In my view—and with respect to those who think otherwise—that contention rests upon an unduly narrow reading of the Non-Revocation Decision. It is, of course, so that, in the absence of reference to a particular circumstance within a decision maker’s written reasons for making a decision, a court might infer that that circumstance was not considered: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 [69] (McHugh, Gummow and Hayne JJ)); Faulkner v Conwell (1989) 21 FCR 41, 47 (Jenkinson J, with whom Woodward and Ryan JJ agreed); Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99, 113 [46]-[47] (Emmett, McKerracher and Foster JJ); Soliman v University of Technology, Sydney (2012) 207 FCR 277, 294-295 [54] (Marshall, North and Flick JJ). Equally, however, a court might decline to draw such an inference if the claim or circumstance in question is addressed by, or subsumed within, analysis of greater generality: Minister for Home Affairs v Buadromo (2018) 362 ALR 48, 59 [46] (Besanko, Barker and Bromwich JJ). In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court observed (at 604 [47]) on that score that an:

“…inference that the [decision maker—in that case, a tribunal] has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.”

70    Whether or not it is appropriate to infer that a particular claim or issue has been overlooked should be assessed “…by reference to the facts of each particular case and the Minister’s reasons as a whole [and t]he reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error”: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [76] (Perram, Murphy and Lee JJ).

71    In the present case, the primary judge, referring to [15] and [32] of the Non-Revocation Decision (above, [60] and [64]), found (Primary Decision, [65]) that it was:

“…tolerably clear, as a practical matter, that the Minister took into account that the [appellant] would not, or was highly unlikely to, be able to return to Australia [and that it was] implicit in [paragraphs 15 and 32 of the Non-Revocation Decision], read with the Minister’s reasoning as a whole, that the Minister was approaching the matter on that basis.”

72    With respect, I agree. Indeed, I would go slightly further: on a fair reading of all of the passages to which I have referred above (including those to which the primary judge referred), it is (to borrow from his Honour) tolerably clear that the Minister proceeded upon a consciousness that his Non-Revocation Decision would separate the appellant from his family. That separation was a function of the circumstance that the appellant’s family would remain in Australia; a circumstance of which it was also tolerably clear that the Minister was conscious. To put it summarily: the separation arose from the likelihood that the appellant’s family would remain in Australia, whereas he would not.

73    Conscious of that likelihood, it cannot fairly be said, in my view, that the Minister overlooked the prospect that the appellant, once removed from Australia, would not be able to return. Whether that was a function of the special return criteria for which item 5001(c) of Sch 5 to the Regulations provides is of little moment. At issue is the Minister’s consciousness and consideration of that prospect.

74    To speak of the Minister’s “consciousness” of that likely outcome is to acknowledge that it was taken into account in the course of his making the Non-Revocation Decision. Assuming that it was something that he was obliged to consider—a question addressed in subsequent sections of these reasons—the Minister was required to engage in an “active intellectual process” directed to the likelihood that, once removed from Australia, the appellant would not be able to return: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155, [76] (Allsop CJ, Kenny and Snaden JJ); Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), 476-477 (Burchett J), 495-496 (Kiefel J). In circumstances where, as the passages from the Non-Revocation Decision that are referred to above make clear, the Minister was alive to the prospect that the appellant’s family would remain in Australia and that that would result in his separation from them, the Minister must be understood to have discharged that obligation. This court should not lightly find otherwise: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ).

75    The conclusion just stated aligns with what, at its core, was the nature of the Non-Revocation Decision. The Cancellation Decision had, by design (and subject to certain exceptions discussed below), the effect of requiring that the appellant leave Australia. The Non-Revocation Decision had, just as naturally, the effect that that requirement should not go unfulfilled. The circumstances in which a non-citizen whose visa is cancelled on character grounds might not be removed from Australia or might not be prevented from returning are, for obvious reasons, limited. Subject to the existence of non-refoulement obligations or to the person successfully mounting a claim for a protection visa, exclusion from Australia on account of visa cancellation under s 501 of the Act is, by design, permanent.

76    The Minister was plainly alive to the difficulties that the appellant would face in securing a new visa whilst still in Australia: Non-Revocation Decision, [26] (above, [62]). The policy considerations underpinning that reality are obvious: it would be surprising, to say the least, if a non-citizen whose visa has been cancelled on character grounds could circumvent the ordinary and natural consequences of that cancellation simply by acquiring a new one. It would be no less strange—indeed, substantially stranger still—if he or she could do so simply by leaving the country first.

77    Permanent exclusion is the end point by which this aspect of the legislative scheme is at least partially animated. At the risk of stating things too simplistically, the scheme of the Act is such that non-citizens whose visas are cancelled under s 501 are meant to leave and not come back (subject, of course, to that being a safe course for them to take). In circumstances where, as here, the Minister found that the appellant could safely return to China (above, [63]), the appellant’s permanent (or likely-permanent) removal from Australia was an unremarkable and obvious consequence of the Non-Revocation Decision. The court here ought, in my view, to be even slower than it normally would be to infer that the Minister failed to take account of a consideration fairly so described: see, in that vein, Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, 168 [85] (Kenny, Flick and Griffiths JJ).

78    Assuming for the moment that he was obliged to, it cannot be said that the Minister in this case failed to take account of the reality that the appellant’s removal from Australia in consequence of the Non-Revocation Decision would very likely be permanent. Respectfully, the primary judge was correct so to conclude. The appeal must fail for that reason.

Obligation to take account of the permanency of removal

79    Having concluded as I have in the preceding section of these reasons, it is not necessary that I should venture an opinion as to whether the Minister was obliged to take account of the likelihood that the appellant’s removal from Australia would be permanent. Nonetheless, as the issue was fully ventilated on appeal, I wish to make some brief observations about it.

80    With respect to the other members of the court, I regret that I am unable to agree that the reasoning in Tanielu is wrong and ought not to be followed. On the contrary, I consider it to be compelling and correct.

81    The appellant contends that, in exercising the discretion conferred upon him by s 501CA(4) of the Act, the Minister was obliged to take account of the legal consequences of his decision. This court concluded as much in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ; “NBMZ”). That proposition proceeds upon an acceptance that such consequences are mandatory relevant considerations because the subject matter, scope and purpose of the Act imply as much: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40 (Mason J). The Minister concedes the point. The correctness of NBMZ is beyond the scope of this appeal.

82    It is common ground that not all of the consequences that arose by operation of law from the Non-Revocation Decision qualified as mandatory relevant considerations of which the Minister was obliged to take account in order to validly exercise that power: see, in that vein, Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523, 561 [135] (Robertson, Moshinsky and Bromwich JJ; “BHA17”).

83    The appellant conceded that an administrative decision maker need not, as a condition of the valid exercise of power, consider consequences that “…are remote, indirect or too far removed from the subject matter, scope and purpose of the Act”. With respect, that is a misstatement of the question that presently arises. At issue is whether there are legal consequences that arise from the exercise of the power that s 501CA(4) of the Act confers, and that qualify as consequences to which the subject matter, scope and purpose of the Act require, by implication, that a decision maker have regard in order that such an exercise be valid.

84    The appellant contended that a legal consequence of a decision might qualify as one upon the consideration of which the valid exercise of a statutory discretion depends, even if it lacks “practical immediacy” in the context within which the decision from which it arises is made. It was by that contention that the appellant submitted that Jessup’s J reasoning in Tanielu was wrong and ought not to be followed. In that case, his Honour, referring to NBMZ, reasoned (at 161 [26]-[27]) that:

It was not there held that each and every consequence of a decision under s 501 had to be placed on the scales for the contribution it might potentially make to the exercise of the Minister’s discretion. The case was concerned with a very specific situation, one which involved Australia’s obligations under the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, specifically its non-refoulement obligations. As I read their Honours’ reasons, it was critical that the direct and immediate practical consequence of the Minister’s decision under s 501 was that the person concerned would be in indefinite detention.

By contrast, the consequence upon which the applicant relies in the present case would be a practical reality only if he sought to return to Australia from New Zealand, the country of his nationality. That the immediate consequence of the Minister’s decision would be the determination of the applicant’s right to remain in Australia did, of course, require no elaboration. So too did the Minister take into account, in terms, the fact that his decision would make the applicant “subject to immigration detention”. The applicant does not, and cannot, complain about the Minister’s failure to take these consequences into account. The “consequences” to which he does refer would, therefore, become relevant when he, as a national of New Zealand residing there some time in the future, decided to apply again for a visa to enter Australia. To the extent that this might be regarded as a “consequence” of the Minister’s decision, it does not have the legal proximity or the practical immediacy to that decision to justify the conclusion that, as a matter of law, the decision could not have been validly made without a consideration of it.

85    I do not read Jessup’s J observations in Tanielu as anything more than a recognition that there will be some consequences that arise by operation of law from the exercise of a statutory power that are of such a nature that a failure to consider them won’t invalidate that exercise. That is a proposition that the appellant accepts as true and for which the authorities record support: BHA17, 561 [135] (Robertson, Moshinsky and Bromwich JJ); DYY18 v Minister for Home Affairs [2019] FCA 1901, [22] (Steward J). Consequences that, for a particular visa-holder (or former visa-holder), are remote, theoretical or contingent—or that, as Jessup J put it in Tanielu, lack sufficient “legal proximity” or “practical immediacy” to the circumstances surrounding the decision from which they arise—strike me as salient examples.

86    There is nothing about the subject matter, scope and purpose of the Act that requires, by implication, that the valid exercise of power under s 501CA(4) be conditioned upon consideration of the legal consequences that arise remotely, theoretically or contingently therefrom (assuming that such consequences might fairly be described as “consequences” at all). Indeed, a case might be made for the proposition that there is nothing about the subject matter, scope and purpose of the statutory framework within and by which that power is conferred that mandates consideration of any of the legal consequences that attach to its exercise: see, in that vein, the discussion concerning clemency and the royal prerogative of mercy in Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158, [22] (Steward J); cf Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29, 52-53 [133] (Kenny and Perry JJ, with whom North J agreed in the result). That is not a proposition upon which further speculation is here required.

87    Had it been necessary to do so, I would have held that the primary judge was, with respect (both to him and to those who think otherwise), correct to apply Tanielu in the way that he did.

Was permanent removal advanced in support of revocation?

88    The appellant submitted—albeit perhaps more faintly—that the constraint upon his ability to return to Australia once removed was a matter that the Minister was obliged to consider because it was something that he advanced in support of his contention that the Cancellation Decision should be revoked. There is no doubt that, if the Minister did overlook what the appellant advanced to that end, his decision might (subject to considerations of materiality) be liable to a grant of prerogative relief as the product of jurisdictional error: Navoto v Minister for Home Affairs [2019] FCAFC 135, [85] (Middleton, Moshinsky and Anderson JJ).

89    Again, in light of my conclusion above—namely, that the Minister did take account of the possibility that, once removed from Australia, the appellant might never be able to return—it is not necessary that I should consider whether, in fact, the appellant advanced that possibility as a reason for which the Minister ought to revoke the Cancellation Decision. I wish to say only two things on that score, namely that: first, if that contention was advanced, it was done so only indirectly; but, second (and for the reasons explored above), what was advanced appears in any event to have been understood or addressed as proceeding upon the likelihood (if not inevitability) that the appellant would not return to Australia once removed.

Materiality

90    I have had the opportunity to review a draft of Bromberg’s J reasons herein. In them, his Honour addresses the possibility that, contrary to my conclusion above, the Non-Revocation Decision was the product of error manifest in the Minister’s failure to appreciate the significance or effect of the “[s]pecial return criterion” for which item 5001(c) of Sch 5 to the Regulations provides. His Honour concludes (above, [36]-[38]) that any such error, if there was one, would not be material in the sense identified by the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [30] (Kiefel CJ, Gageler and Keane JJ).

91    With respect, I agree with his Honour’s conclusion on that score and with the reasons that he identifies in support of it.

92    As alluded to above, the question of materiality arises—or, but for the conclusions already stated, would arise—in a second, broader context. Had I been minded to conclude that the Minister had not considered the permanency of the appellant’s removal from Australia, and that he was obliged to for either of the reasons discussed above, I may well have come to a different view about the determination of the appeal. For obvious reasons, that is a topic upon which it is unnecessary to elaborate.

Conclusion

93    The appeal should be dismissed with costs.

Associate:

Dated:    19 December 2019