FEDERAL COURT OF AUSTRALIA

DLJ18 v Minister for Home Affairs [2018] FCA 1650

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    On 3 July 2018, the applicant filed an application under s 476A of the Migration Act 1958 (Cth) for judicial review of a decision of the Minister for Home Affairs made on 29 May 2018 under s 501CA(4) not to revoke a decision to cancel the applicant’s Class XA Subclass 866 (Protection) visa.

Background

2    The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 11 August 2003 and was granted a protection visa on 21 October 2008. The applicant has three minor children who are all Australian citizens. They reside with their mother, the applicant’s wife, in Sydney, New South Wales.

3    On 17 May 2016, the applicant’s protection visa was mandatorily cancelled pursuant to s 501(3A) of the Act. That provision requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the “character test” (for any of the particular reasons identified in the provision), and 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. By reason of s 501(6)(a), a person does not pass the character test in a way contemplated by s 501(3A) if the person has a “substantial criminal record”. Under s 501(7)(c), a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

4    There was no dispute that the applicant failed the character test for the purposes of s 501(3A)(a)(i). On 15 March 2013, he was convicted of “aggravated break and enter and commit serious indictable offence – armed” and two counts of “Assault with act of indecency”. Another two counts of “Assault with act of indecency” and two counts of “Assault occasioning actual bodily harm” were taken into account in sentencing. The convictions related to offences involving the physical and sexual assault of two female victims.

5    The applicant was sentenced to concurrent terms of imprisonment totalling nine years with a non-parole period of five years. The Minister summarised the remarks of the sentencing judge, who had considered that the offences were of “considerable seriousness” and were aggravated by the fact that the applicant used a knife and broke into the victims’ home.

6    It was also common ground that para (b) of s 501(3A) was satisfied because, at the time of the cancellation decision, the applicant was serving a sentence of imprisonment on a full-time basis in a correctional centre in New South Wales.

7    The cancellation decision was therefore validly made.

The Minister’s Revocation decision

8    Section 501CA(4) furnishes a discretion on the Minister to revoke a visa cancellation decision made under s 501(3A) if the matters in s 501CA(4)(a) and (b) are satisfied. The section provides:

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.

9    As to the first matter (s 501CA(4)(a)), the applicant was invited to make representations to the Minister about the cancellation decision in accordance with s 501CA(3)(b) and did so on 8 June 2016.

10    The Minister summarised the applicant’s representations in the following way (at [12] of his statement of reasons for decision):

•    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 singlehandedly 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 applicant] 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.

11    As to the second matter (s 501CA(4)(b)), there was no dispute that subpara (i) was not satisfied; the applicant accepted he did not pass the character test. Accordingly, the only issue was whether, for the purposes of s 501CA(4)(b)(ii), the Minister was satisfied there was another reason why the visa cancellation decision should be revoked.

12    In his statement of reasons for decision, the Minister considered various factors relevant to the exercise of his discretion under s 501CA(4):

(1)    the best interests of the applicant’s three minor children: at [13]-[19];

(2)    the expectations of the Australian community: at [20]-[22];

(3)    the harm the applicant claimed he would experience if he were returned to China: at [23]-[28];

(4)    the strength, nature and duration of the applicant’s ties to Australia: at [29]-[36];

(5)    the impediments the applicant will face if removed from Australia to China in establishing himself and maintaining basic living standards: at [37]-[43];

(6)    the Australian Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens: at [44];

(7)    the nature and seriousness of the applicant’s criminal offending: at [45]-[51]; and

(8)    the risk the applicant poses to the Australian community through re-offending, having regard to mitigating or causal factors in his offending and steps he has undertaken to reform and address his behaviour: at [52]-[61].

13    At [70], the Minister concluded he was not satisfied for the purposes of s 501CA(4)(b)(ii) that there was another reason for revoking the visa cancellation decision.

14    Accordingly, the Minister’s discretion to revoke the cancellation decision was not enlivened and the applicant’s visa remained cancelled.

15    The applicant was notified of the Minister’s revocation decision on 30 May 2018.

The application TO THIS COURT

16    The applicant applied to this Court for judicial review under s 476A of the Act of the Minister’s decision not to revoke the cancellation decision.

17    Leave was granted at the hearing for the applicant to rely on an amended application, which abandoned ground 2 of the originating application filed on 3 July 2018 and substituted a new ground. The grounds of the amended application were:

1.    The Minister’s decision was legally unreasonable.

Particulars

a.    The Minister found that the Applicant may be exposed to similar external stresses on his life which may cause him to return to alcohol and would significantly increase the chances of his reoffending.

b.    The stressor that precipitated the offence was a serious motor vehicle accident which required him to be hospitalised and have skin grafts and left him unable to work.

c.    The Minister’s reasoning logically required an assessment to be made of the likelihood of the stressor arising.

  d.    There was no such assessment.

e.    There was thus a logical disconnect between the premise and his conclusion.

2.    The Minister failed to complete the exercise of his jurisdiction.

Particulars

a.    Failure to consider that as the law currently stands, the legal effect of the Minister’s refusal to exercise his discretion under s 501CA(4) of the Migration Act is that the applicant, once removed from Australia pursuant to s 198 of the Migration Act, could never return.

Ground 1

18    In respect of ground 1, the applicant submitted that the Minister’s decision was legally unreasonable because the reasoning in paras [60] and [61] was illogical or contained a “logical disconnect”. Those paragraphs were:

60.     While I accept that [the applicant] is remorseful for his offending and has taken steps while in prison to address the issues which contributed to his offending and that he has support in the community by way of his wife, I consider that a return to the general community will test his ability to manage his ongoing issues in an unsupervised environment where he may be exposed to similar external stresses of life. I cannot dismiss the possibility that he could fall into depression and succumb to alcohol again, and if so the likelihood of him reoffending would accordingly rise substantially. I also note his stating that he did not realise his conduct was considered to be criminal in Australia and that he applied the same reasoning when discussing using false identity documents. I find this explanation implausible, given the nature of his sexual and violence based offences and it calls into question the extent of his remorse and insight into his offending behaviour.

61.     In view of his serious criminal history in Australia, his untested and incomplete rehabilitation and his questionable insight into his offending, I find that there is an ongoing risk of further offending. Should he do so, it would be likely to result in conduct that could cause physical and/or psychological harm to a member or members of the Australian community.

19    At para [17] of his written submissions, the applicant submitted:

… [T]he Minister appeared to have accepted (at AB 13 [53]) that the stresses that contributed to the applicant’s offending in 2011 stemmed from the serious injuries that he sustained in the motor vehicle accident. For there to be a logical connection between the premise that the applicant may be exposed to, “similar external stresses”, and the conclusion that if so he may offend in a similar fashion to previously, there had to be some evidence, or assessment, of the possibility of recurrence of “similar external stressors”. There was none. There was thus a disconnect between the Minister’s premise, and the conclusion flowing from it. Seen thus, there was a lack of evident and intelligible justification for this part of the decision. The decision was thus legally unreasonable (Minister for Immigration v Li (2013) 249 CLR 332 at [76]).

20    The principles with respect to “illogicality” in an administrative decision giving rise to jurisdictional error are well established. The decision must be one at which no rational or logical decision-maker could have arrived on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). The ground cannot be made out if different minds might reach different conclusions: at [131].

21    The principles with respect to “legal unreasonableness” are also well established:

(1)    The question of whether a decision is legally unreasonable is directed to whether or not the decision or action is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J).

(2)    A decision may be found to be legally unreasonable having regard to the scope, purpose and objects of the statutory source of power:

(a)    because it is “illogical”, but an inference of unreasonableness is not to be drawn only where a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ).

(b)    if it “lacks an evident and intelligible justification”: Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

(c)    if it is arbitrary, capricious, lacking in common-sense or plainly unjust: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth  JJ).

22    The Minister’s consideration of the risk of reoffending was set out at paras [52] to [61] of his reasons. The Minister’s reasoning may be summarised in the following way:

(1)    The applicant’s offending in 2011 was driven to some extent by a combination of mental stress and intoxication: at [53].

(2)    According to the Psychologist Report prepared by Dr Emily Kwok dated 17 November 2017, the applicant was suffering from post-traumatic stress disorder (PTSD) “with symptoms of both alcohol dependence and conduct problems” at the time of his offending: at [41], [59].

(3)    The applicant continued to suffer from PTSD (as at the date of Dr Kwok’s assessment of him on 3 November 2017): at [59].

(4)    The applicant had not consumed alcohol since 2011 “because he states, it is not allowed in jails or detention centres and … he is committed to doing his best to control himself and not drink alcohol again”: at [55].

(5)    He has received treatment in custody for depression and to address his alcohol dependency: at [56].

(6)    According to the Psychologist Report, he presented with a low risk for engaging in further criminal conduct and should be released into the community: at [59].

(7)    The applicant’s rehabilitation was “untested and incomplete”: at [61].

(8)    The applicant’s ability to manage his ongoing issues had not been tested outside of a custodial environment where he might be exposed to “similar external stresses of life”: at [60]. The Minister could not dismiss the possibility of the applicant falling into depression and succumbing to alcohol again. If this were to occur, the likelihood of the applicant reoffending would rise substantially. Accordingly, there was an unacceptable ongoing risk that the applicant might further offend and thereby expose the Australian community to significant harm.

23    The applicant’s submission was that the phrase “similar external stresses of life” was to be read as a reference to external stresses similar to the motor vehicle accident, or perhaps the stresses associated with the physical and other consequences of that accident.

24    The Minister’s reasons are to be read in a practical common sense way: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. The reference to “similar external stresses of life” is to be understood as a reference to adverse events or experiences which might befall the applicant in day to day life. The reference is found at [60] of the Minister’s reasons. At [59], the Minister had been referring to the report of Dr Kwok which, the Minister noted, had recorded that the applicant had suffered, and continued to suffer, from PTSD. Dr Kwok had said:

It seems that [DLJ18] did not undergo any form of psychological treatment for PTSD. Subsequently, his experiences of distress were further exacerbated by his increasing financial difficulties and relationship problems with his wife, which are also associated with an increase in alcohol abuse.

25    These are examples of some of the stresses of life which might occur. The Minister evidently considered that there might be others. This was a reasonable and logical conclusion. Common experience shows that life visits predictable and unpredictable stresses on everyone. They did not need to be identified.

26    Even if the Minister is to be understood as meaning, by his use of the word “similar”, that the applicant might be exposed to another accident (or similar event carrying similarly significant consequences), then that was also a finding which could not be disturbed as illogical or irrational or lacking in common-sense. Of course he might be so exposed. Different minds might reach different conclusions as to the likelihood of the applicant being exposed to another accident, but the Minister’s view cannot be described as “illogical” or “irrational”.

27    The reasoning process adopted by the Minister did not call for an assessment of the likelihood of a specific event occurring (such as a motor vehicle accident) which might trigger the applicant to relapse into alcohol dependency and depression if he were released into the community. The unchallenged finding of the Minister was that the applicant’s offending in 2011 was driven to some extent by a combination of mental stress and intoxication: at [53]. In relation to mental stress, the evidence was that the applicant continued to suffer from PTSD: at [59]. In relation to intoxication, the Minister considered the applicant’s rehabilitation was “untested and incomplete”: at [60]. It was open to the Minister to find that he could not dismiss the possibility of the applicant falling into depression and succumbing to alcohol again.

28    Whether or not another decision-maker would have reasoned in a similar way, there is no illogicality in the reasoning process adopted. The Minister’s findings at [60] and [61] cannot be said to lack an evident and intelligible justification. Nor are they otherwise legally unreasonable in any of the ways described in the authorities summarised at [21(2)] above.

29    This case is quite different to the situation in Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620, to which the applicant referred. In that case, the Minister had concluded that there was a likelihood of re-offending, as opposed to a risk of re-offending. The factual findings which the Minister had made in that case, and the evidence before him, all pointed against a likelihood of re-offending and merely recognised a risk of re-offending, a matter which may well be present in every case. There was a logical disconnect between the favourable findings against a likelihood of re-offending and the conclusion, contrary to all of the evidence, of a likelihood of re-offending.

30    Ground 1 is not made out.

Ground 2

31    The applicant’s substituted second ground was that the Minister failed to complete the exercise of his jurisdiction by failing to take into account, as a mandatory relevant consideration, that a consequence of not revoking the cancellation of the applicant’s visa was that the applicant would be barred from returning to Australia once removed.

32    The Minister conceded that a consequence of the decision was that, once removed, the applicant may be legally prevented from returning to Australia by operation of the “special return criterion” under cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth).

33    Clause 5001(c) contains a criterion that the “applicant is not”:

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; …

34    The question ground 2 raises is whether the Minister was required to take the consequence into account, that the applicant would not be able to satisfy the “special return criterion” if he sought to return, in the exercise of his discretion under s 501CA(4), such that a failure to do so constituted jurisdictional error.

35    The applicant relied on the decision of the Full Court of this Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1. That case concerned a decision by the Minister to refuse to grant a protection visa under s 501(1) of the Act. Allsop CJ and Katzmann J observed at [6] that, whilst the Minister’s discretion under s 501(1) was unfettered in its terms, the subject matter, scope and purpose of the Act may nevertheless require that certain considerations be taken into account.

36    Their Honours referred to Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [71]. In Peko-Wallsend, Mason J said at 39-40:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard [citations omitted]. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

37    Allsop CJ and Katzmann J concluded that, in the case of an applicant for a protection visa, the statutory (or legal) consequences flowing from a decision to refuse the visa application were an implied mandatory consideration: NBMZ at [6].

38    Buchanan J identified the legal consequences of the Minister’s decision in NBMZ at [64]-[66]. A consequence of refusing to grant the applicant a visa was that any other visa then held by the applicant was taken to be cancelled pursuant to s 501F. Accordingly, the applicant became an “unlawful non-citizen”. The statutory scheme required that he be detained and removed from Australia as soon as reasonably practicable: ss 189(1) and 198(6) of the Act. By reason of Australia’s non-refoulement obligations, there was no country to which the applicant could lawfully be removed, with the consequence that he was liable to be detained indefinitely.

39    The Full Court in NBMZ held that the Minister was required to take that consequence (indefinite detention) into account in determining whether to refuse to grant a protection visa under s 501(1). The failure to do so amounted to jurisdictional error: at [6]-[10], [17]-[18] (Allsop CJ and Katzmann J); [164]-[167] (Buchanan J).

40    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.

41    Buchanan J stated at [153]:

… [I]t will always be necessary, in my respectful opinion, to proceed upon a proper understanding of the statutory scheme and the legal consequences for the applicant of the decision to be made about the visa application.

42    Buchanan J noted that the Minister’s consideration of the consequences for the applicant betrayed “a lack of understanding of the operation of the Act”: at [164]. His Honour concluded that the Minister gave no thought to (or alternatively regarded as irrelevant) that the applicant would, as both a legal and practical consequence of the decision, face the prospect of indefinite detention: at [177].

43    In the present case, the Minister conceded that the legal consequences of a non-revocation decision under s 501CA(4) are properly the subject of the reasoning in NBMZ; that is, in the context of s 501CA(4), a failure by the Minister to consider the legal consequences of a decision not to revoke a visa cancellation decision may amount to jurisdictional error.

44    A materially similar issue to the one in the present case was considered by Jessup J in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154. Jessup J said:

25.    Under the third limb of his second ground, the applicant contends that the Minister failed to have regard to the circumstance that, under the “special return criteria” in Sch 5 to the Migration Regulations 1994 (Cth), a legal consequence of the Minister’s decision was that the applicant “could never be granted a visa to return to Australia”. That the decision did carry such a consequence was accepted by the Minister. It was submitted in response to the applicant, however, first, that this was not a matter which was required to be taken into account in the Peko-Wallsend sense, and secondly, that the Minister did proceed by reference to the assumption, silent though it may have been, that the decision which he was about to make would have permanent consequences for the applicant.

26.    In presently relevant respects, the applicant relied upon the judgment of the Full Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, where it was held that a decision to refuse to grant a protection visa under s 501(1) in the course of which no consideration was given to the reality that the person concerned would thereupon be subject to indefinite detention (because the nation from which he had fled refused to accept him back) was thereby infected by jurisdictional error in the Peko-Wallsend sense. The present case is, however, a far cry from NBMZ. 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.

27.    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.

28.    The regulation-making authority has chosen to make it a “special return criteri[on]” that the person seeking to re-enter Australia not have had a previous visa cancelled under s 501 because of the application of para (a) of subs (6) of that section. That circumstance does not, in my view, introduce itself into the exercise of the Minister’s power under s 501 as something to which he or she must, for the valid exercise of that power, have regard.

29.    For the above reasons, I do not regard this second [sic – third] limb of the applicant’s second ground as coming within the jurisprudence established by NBMZ. In relevant respects, the ground must be rejected.

45    It seems that Mr Tanielu and the present applicant were in a similar situation so far as concerns what might be inferred to be their desire to return to Australia, at least in the sense that they both had partners and children in Australia from whom they did not want to be separated – see: Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 (Mortimer J). Both evidently did not want to be removed from Australia.

46    The applicant submitted that Tanielu should not be followed – cf: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (French J).

47    Counsel for the Minister submitted that Tanielu should be followed and noted that Tanielu was considered by the Full Court in Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [96]-[101]. The Full Court did consider Tanielu but it did not directly address the issue raised in these proceedings or expressly endorse the reasoning in paragraphs [25] to [29] of Tanielu. The Full Court endorsed an aspect of paragraph [26] of Tanielu: Taulahi at [98].

48    In Taulahi, the Full Court stated:

84.    The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision. …

85.    In written submissions, the Minister contended that NBMZ was distinguishable on the ground that, in referring to “statutory” or “legal” consequences, Allsop CJ and Katzmann J were referring to a particular and non-obvious legal operation of the Migration Act, which was “important in human terms”. This submission is rejected. As already indicated, NBMZ stands for a broader proposition that is applicable in this case. The fact that the legal consequences of a decision may be obvious or that “the applicable legal framework to s 501(3) may be less complex than that considered in NBMZ” (Roach [2016] FCA 750 at [108]) may bear on the question whether the Minister has in fact misconceived the power in question or failed to have regard to the statutory framework in which the decision has been made. The principle for which NBMZ stands does not, however, cease to apply in these circumstances and they do not provide a basis to distinguish NBMZ from the present case.

49    NBMZ has also been considered in Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 at [107] (North J); [123]-[126] (Kenny and Perry JJ); and in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 at [71] (Moshinsky J).

50    It is not every legal consequence of a decision under s 501CA(4) which is necessarily an implied mandatory consideration. For example, legal consequences of a decision made under the Act which flow under other Commonwealth legislation (for example, loss of social security benefits) are not ordinarily a mandatory relevant consideration. This was made clear in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68. The Court (Robertson, Moshinsky and Bromwich JJ) observed (albeit obiter) at [136]:

It is not enough that a consequence be a legal consequence, or even a direct legal consequence, of a decision that produces or continues a particular state of affairs. It must be a consequence which is a consideration required to be taken into account as a matter of inference from the subject matter, scope or purpose of the Migration Act. Were it otherwise, a revocation decision-maker (and, by parity of reasoning, all other decision-makers) would be required, as a matter of jurisdiction, to take into account legal consequences that are outside the ambit of the statute pursuant to which the power or discretion is being exercised.

51    The immediate consequence of the Minister’s decision in the present case was, as the Minister recognised at [70] of his reasons, that the applicant’s visa remained cancelled. The legal consequences arising from the statutory scheme were that non-revocation meant that the applicant’s visa remained cancelled, he necessarily remained an “unlawful non-citizen” and was liable to remain detained under s 189(1) and removed from Australia as soon as reasonably practicable pursuant to s 198(6). This was recognised by the Minister and taken into account: reasons at [27].

52    The Minister identified the following further consequences at [26]:

26.    I accept that if I do not revoke the original decision to cancel [the applicant’s] Protection visa he will be prevented by s 501E 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 applicant] will be prevented by s 48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determines that s 48A of the Act does not apply to him – s 48A(1B) and s 48B refer).

53    It can be inferred from the fact that the Minister addressed these consequences that he did not 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” under cl 5001(c) of Sch 5 to the Regulations if the applicant were later to make an application for a visa.

54    As noted above, it is well-settled that a decision-maker is only bound to have regard to matters that are required to be taken into account, either expressly or by necessary implication, in relation to the exercise of the power or discretion in question: Peko-Wallsend at 39-40. The statutory scheme imposes no express obligation on the Minister to consider the consequences for the applicant flowing from the operation of the “special return criterion” under cl 5001(c) of Sch 5 to the Regulations. The issue is whether it was an implied mandatory relevant consideration.

55    The first step in determining whether a particular matter is an implied mandatory consideration for the purpose of s 501CA(4) is to examine the subject matter, scope and purpose of the statutory scheme.

56    The second step is to consider whether the consequence is a “direct and immediate” statutorily prescribed consequence which must be taken into account: Taulahi at [84] (set out at [48] above). The consequence must be one which is a consideration required to be taken into account as a matter of inference from the subject matter, scope and purpose of the Act: BHA17 at [136] (set out at [50] above).

57    The Minister observed that it is not permissible to interpret the statute by reference to the Regulations, referring to Hunter Resources Ltd v Melville (1988) 234 CLR 234 at 244. As the Minister recognised, that does not mean that the Regulations are to be ignored in determining the nature of the legislative scheme for the purpose of identifying whether a particular consequence is one which is properly regarded as a mandatory relevant consideration under the statute. That is, the question is the proper construction of the statute and whether the terms of it, properly construed, require regard to be had to a particular consequence that arises (or would arise if a later application for a visa were to be attempted or made) by reason of cl 5001(c) of the Regulations.

58    In NBMZ, the consequence that the appellant would be held in indefinite detention was one which the Full Court considered was a mandatory consideration for the purposes of s 501(1).

59    In Tanielu, Jessup J considered that the consequence that the applicant could never be granted a visa to return to Australia was not a mandatory consideration for the purposes of s 501(3). It was not suggested that his Honour’s decision could be distinguished on the basis that the decision in the present case was not a decision to cancel a visa made under s 501(3) but rather a decision not to revoke a cancellation under s 501CA(4).

60    I am not satisfied that his Honour’s decision is clearly wrong and should not be followed.

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].

62    Jessup J declined to read into s 501CA(4) an implied mandatory consideration arising from the Regulations in relation to a different exercise of power that would only arise for consideration at a future time if the applicant applied, or sought to apply, for a visa after being removed.

63    Another relevant matter, in terms of whether it is to inferred from the statute and its object and purpose, that a particular legal consequence is a mandatory consideration, is the fact that the statutory scheme requires the Minister to invite an applicant to make representations about revocation: s 501CA(3)(b). If the applicant makes representations, the representations taken as a whole are a mandatory relevant consideration: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56]; approved in Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41].

64    In the present case, the applicant’s representations stated that, if the applicant was sent back to China, he might never see his wife and children again and that he would “lose” them. The Minister took those representations into account at paragraphs [15] and [32] of his reasons:

15.     I have regard to [DLJ18]’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.

…

32.     I have considered [DLJ18]’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.

65    Whilst the Minister did not refer to the “special return criteria” in Sch 5 to the Regulations or the legal impediment it created, it is 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. It is implicit in the paragraphs set out above, read with the Minister’s reasoning as a whole, that the Minister was approaching the matter on that basis. That is an unsurprising approach given the nature of the applicant’s offending (violent crimes of a sexual nature, perpetrated with a knife) and the fact that he was to be removed from Australia as a consequence. This is to be distinguished from NBMZ where the Minister failed to appreciate or consider the practical result of the legal consequences of the Act, namely indefinite detention.

66    The applicant could have, but did not, raise the present argument in his representations made under s 501CA.

CONCLUSION

67    The application is dismissed with costs.

Associate:

Dated:    6 November 2018