Federal Court. Is the phrase “extent of impediments if removed” under para 14(1)(e) is given meaning by para 14.5(1) of Direction 79? Is the “extent of impediments” if removed referred to in the chapeau to para 14.5 a mandatory consideration, by reason of para 14(1)(e)? In making a finding about the “extent of impediments”, was it mandatory to consider each of the matters in sub-paragraphs (a) to (c) of paragraph 14.5(1)? If the Tribunal made an error, should the materiality of the error be assessed as a balancing, as opposed to a binary, exercise?
The applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth), after which a delegate of the first respondent (Minister) refused to revoke the cancellation pursuant to s 501CA(4) of the Act. The applicant then applied to the second respondent (Administrative Appeals Tribunal) for review of the non-revocation decision. The Tribunal was required to comply with Ministerial Direction 79, para 14(1) of which required decision-makers to consider “other considerations”, including the “Extent of impediments if removed”: para 14(1)(e). Para 14.5 of Direction 79 provided as follows (original emphasis):
14.5 Extent of impediments if removed
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
There was evidence before the Tribunal that the applicant suffered from depression. The Tribunal found para 14.5(1) to weigh “slightly in favour of revocation”, but affirmed the non-revocation decision. The applicant then applied to the Federal Court (FCA) for judicial review of the Tribunal’s decision. Ground 2 of the judicial review application argued that “the Tribunal did not have regard to the applicant’s depression when considering the “extent of impediments” if the applicant were to be removed from Australia”: at [30(a)].
Some of the questions to the FCA were as follows:
Question 1: Is the phrase “extent of impediments if removed” under para 14(1)(e) is given meaning by para 14.5(1) of Direction 79?
Question 2: Is the “extent of impediments” if removed referred to in the chapeau to para 14.5 a mandatory consideration, by reason of para 14(1)(e)?
Question 3: In making a finding about the “extent of impediments”, was it mandatory to consider each of the matters in sub-paragraphs (a) to (c) of paragraph 14.5(1)?
Question 4: Can the Tribunal’s decision be saved from invalidity because depression was not raised in connection with the “extent of impediments” until after the Minister’s statement of fact, issues and contentions had been filed before the Tribunal?
Question 5: If the Tribunal made an error by not considering the applicant's depression, was the error material because, even though it found para 14.5(1) to weigh “slightly in favour of revocation”, it may have attributed greater weight to the consideration but for its error, which may have led to a different balancing of the competing considerations? In other words, should the materiality of the error be assessed as a balancing, as opposed to a binary, exercise?
The FCA answered those questions as follows: