s 501CA(4): is cl 5001(c) a mandatory consideration?

Federal Court (Full Court): In the context of s 501CA(4), was the Appellant's prohibition upon his ability to return to Australia by reason of cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) a legal or a practical consequence of a non-revocation decision? Was that consequence a mandatory relevant consideration? Does the process of statutory construction of the Migration Act "permit of some consequences being more immediate than others"? Does a decision made under cl 5001(c) lack "legal proximity" to decisions made under the Act? The FCAFC was divided on several issues.

In NBMZ, the Full Court of the FCA (FCAFC) had held that the legal consequences of a decision made under s 501(1) of the Migration Act 1958 (Cth) were mandatory relevant considerations in exercising the discretion under that provision. Subsequently, in Taulahi, the FCAFC had held that the "direct and immediate" legal consequences of a decision made under s 501(3) were mandatory relevant considerations in exercising the discretion under that provision.

The Minister's reasons for decision under s 501CA(4) not to revoke the mandatory cancellation made under s 501(3A) included the following paragraphs:

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.

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. 

At first instance in the present matter, a single judge of the Federal Court (FCA) held 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].

The questions to the Federal were as follows:

Question 1: Can it be said that, "contrary to the reasoning in Tanielu ..., 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…'”?

Question 2: Can it be said that, "if it were necessary for the Minister to consider cl 5001(c) ... 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"?

Question 3: Can it be said that "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"?

Question 4: Can it be said that, "to employ the language used in NBMZ, the “statutory (that is, the legal) consequences” ... 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", as opposed to the Migration Regulations?

Question 5: Can it be said that "the primary judge at [61] in the passage extracted above... took into account considerations concerned with practicality rather than proximity"?

Question 6: Can it be said that the consequence brought about by cl 5001(c) was a mandatory relevant consideration in the context of making a decision under s 501CA(4), whether or not the Appellant made claims bearing on the former provision?

Question 7: Did the Minister "take into account the consequence of the non-revocation decision that the appellant would be precluded from returning to Australia"?

Question 8: Can it be said that the error on the part of the Minister in not having considered the consequences of non-revocation would not have been “material” to the decision reached?

Question 9: Bromberg J said the following: "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. That said, was it possible 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"? If so, did that amount to a jurisdictional error?

Question 10: Can it be said that, if the Appellant made claims bearing on cl 5001(c), those claims themselves made the effect of that provision a mandatory relevant consideration in the context of making a decision under s 501CA(4)?

The FCA answered those questions as follows:

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