Structure and operation of s 501CA
39 By the structure of s 501CA(4) the Parliament has granted to the Minister a discretion to revoke the cancellation decision (in the chapeau to subs (4)), upon the satisfaction of the matters in subs (a) and subs (b). Those matters are "jurisdictional facts", which is an expression explained by the High Court in Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139 [43]:
Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
40 The jurisdictional fact in subs (4)(a) is something which might be objectively ascertained (an objective jurisdictional fact). In this case the Minister made the observation that the appellant had made representations about the revocation of the original decision. That was not something of which he was required to be satisfied. It was merely an event which needed to occur and its existence or otherwise would always be open to full merits review.
41 The matters in subs (4)(b)(i) and (ii) are subjective jurisdictional facts. The question for a court on review is not whether they existed, but whether the Minister was satisfied that either existed. By his reasons the Assistant Minister recorded that he was not satisfied that the appellant passed the character test and, nor was he satisfied that there was "another reason why the original decision should be revoked". The consequence was that the power in the chapeau, which was conditioned on the satisfaction of the jurisdictional facts in subs (a) and (b), was not enlivened.
42 The shielding of jurisdictional facts from curial review by interposing a subjective deliberation on a matter is a long established legislative drafting technique: The Council of the Municipality of Bankstown v Fripp (1919) 26 CLR 385 at 403, acknowledged by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) at 651 [130], and repeated by his Honour with McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20/2002) at 1175 [54]. Although the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be "reviewed" are limited. An early identification of those grounds was undertaken by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs) at 360. Those grounds have been added to and refined over the years: MacCormick v Federal Commissioner of Taxation (1945) 71 CLR 283; Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS); EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681. Despite that elaboration in the later cases, the principles on which subjective jurisdictional facts may be reviewed are nevertheless generally referred to as "Avon Downs principles". That being said, where the state of mind on which the operation or exercise of a provision or power is conditioned is vitiated by an Avon Downs error, any subsequent purported exercise of power will necessarily be affected by jurisdictional error: S20/2002 at 1176 [59].
43 A noteworthy characteristic of s 501CA(4) is the translocation of the substantive deliberative process relating to the revocation of the cancellation decision to the subjective jurisdictional fact stage. That is, on what appears to be the generally accepted view of the section's operation, the legislature has incorporated the deliberative process in relation to whether the cancellation decision should be revoked, into the Minister's function of forming the identified state of mind. It is not, as might otherwise be the case, made part of the discretion conferred upon the Minister. That is reflective of the structure of s 65 of the Act, being the power to grant visas: Eshetu at 654 - 655; S20/2002 at 1176 [59] - [60]; SZMDS at 624 - 625; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at 188 - 189 [34]. A difficulty with this approach is that the "confusion of thought" referred to by Gummow ACJ and Kiefel J in SZMDS at 624 [39], easily arises on any application for review. Too frequently defects in the formulation of the state of mind are advanced as being "jurisdictional errors" rather than errors of the type that might vitiate a state of mind which is the essential requirement of a subjective jurisdictional fact. In other words, resort is had to jurisdictional error principles rather than the "Avon Downs principles".
44 A consequence of translocating the deliberative process into the antecedent jurisdictional fact stage is the necessary incorporation of implicit procedural requirements to facilitate decision making. In many instances of subjective jurisdictional facts, the subject matter of the state of mind is of a functional nature or limited to simple factual matters. However, in the case of s 501CA(4) the incorporation of a substantive deliberative process has the consequence that the process of forming the relevant state of mind incorporates certain implied statutory requirements. Prima facie, the function of forming a state of mind for the purposes of s 501CA(4)(b) is unconfined. However, s 501CA(3) requires the giving of notices and information to the affected person as well as the making of an invitation to make representations about the revocation decision. Section 501CA(4) may only ever become operative if, in accordance with subs (a), the person affected makes representations in accordance with that invitation. Although it is not expressly stated in subs (b) that relevant factors that the Minister must consider in forming his state of satisfaction or otherwise are the claims made in the representations, that conclusion is a necessary inference. The principles of interpretation or construction which are used to identify those factors which the person forming the state of mind is required to consider are not dissimilar to those found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30, concerning the identification of relevant or irrelevant considerations for the exercise of discretions: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 270 [54]; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 at [184] - [187]. If "by implication from the subject-matter, scope and purpose of the Act" the repository of power is required to consider a factor in forming the required state of mind, any putative state of mind formed without considering it would be vitiated.
45 It would follow that a failure by the Assistant Minister to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind.
46 The above identification of the operation of s 501CA(4) derived from general principles accords with the observations in the recent decision of the Full Court (Flick, Griffiths and Moshinsky JJ) in GBV18(FC). There the Court (at [31] - [33]) addressed the issue of the structure of s 501CA(4) in detail and, in particular, identified what the Parliament has impliedly mandated is to be taken into account in the formation of the required state of mind. Their Honours' observations are important for a number of issues in this case and it is appropriate to set them out in full:
31 The key relevant principles with reference to ground 3 may be summarised as follows:
(a) Representations in response to an invitation under s 501CA(3)(b) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described (see, for example, Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 at [139] per Robertson, Moshinsky and Bromwich JJ).
(b) In DOB18 v Minister for Home Affairs [2019] FCAFC 63, the majority (Robertson J, with whom Logan J agreed) said at [185]-[186] (emphasis added):
… In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.
In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2).
To similar effect, see Goundar at [53]-[54] per Robertson J (noting again that specific reference was made to Goundar in the VLA submissions dated 7 April 2017).
(c) The representations play a central role in the relevant statutory regime, whether the decision-maker be the Minister, a delegate or the AAT. The statutory power to revoke (and therefore "undo") the mandatory cancellation of a person's visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the decision-maker's determination of whether he or she is satisfied that there is "another reason" why the cancellation should be revoked. As Colvin J said in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561 at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material presented in the representations. The same applies to a case where the AAT is conducting a review of a Ministerial delegate's decision under s 501CA(4).
(d) The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.
(e) In determining whether or not there is "another reason" why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the decision maker has a degree of "decisional freedom" as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin, constitutes "another reason" (see BCR16 at [70]-[73] per Bromberg and Mortimer JJ).
(f) While it may have been open to the AAT in Omar ultimately to decide that the risk of harm to the respondent if he were returned to Somalia was not "another reason" for revoking the visa cancellation, the AAT was nevertheless obliged to give meaningful consideration to the representations on this issue. As Colvin J stated in Viane at [67]- [68] in the context of the Minister's statutory task under s 501CA(4) (which also applied to the AAT):
67. In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is 'another reason' to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.
68. Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.
32 Omar also provides helpful guidance on what is meant by the obligation of a decision-maker to "consider" a matter in the context of a judicial review (see at [35]-[37]). The reasons for judgment in the present case should be read as though those paragraphs were incorporated here. For convenience, the key relevant points may be summarised as follows.
(a) Even though there is no explicit statutory duty on the Minister under s 501CA(4) to "consider" representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court's approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).
(b) Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.
(c) The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister's statements of reasons in the two cases there stated that he had "given full consideration to all of the information before me" and that the reasons contained numerous statements by the Minister that he had "considered", "noted", "accepted", "recognised" or "had regard to" various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.
(d) The decision-maker's obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added):
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
(e) Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia's non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker "may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law".
(f) The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to "another reason" for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.
(g) A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to reemphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.
(h) Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker's ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.
47 Similar observations were recently made by Charlesworth J in Hernandez and by the Full Court in DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [23] - [35]. Relevantly, in Hernandez, Charlesworth J added (at [577]) that the failure to comply with the requirement to take a relevant factor into consideration will not satisfy the materiality threshold unless it is shown that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31]; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10] per Kiefel CJ, Gageler and Keane JJ.
48 The substance of the obligation to take into account a relevant factor, particularly in the context of the power in s 501CA(4), was also recently discussed by Wigney J in BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCAFC 94 (BHL19(FC)) (albeit dissenting in the result in that case), where his Honour said at [169]:
As was made clear most recently by the Full Court in Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188 at [37], the Minister is obliged to engage in an "active intellectual process with significant and clearly expressed relevant representations" in the context of a decision to cancel or refuse a visa. Depending on the nature and content of the representations, the Minister may also be "required to make specific findings of fact" in relation to the matters raised in the representations: Omar at [39]. It is not sufficient for the Minister to merely "note" the representations, or state that they had been considered or taken into account: Omar at [43]; see also AEM20 v Minister for Home Affairs [2020] FCA 623 at [100]. The failure to consider, in a relevant legal sense, significant matters raised clearly by a person in the appellant's position will amount to a "failure to conform with the Act" or a failure to "carry out the relevant statutory function according to law": Omar at [45].
49 A failure to properly take into account or have regard to a claim raised by the person in their representations will necessarily have the consequence that one of the Avon Downs errors has occurred, such that, if the error was material, the putative state of mind formed by the Minister will be vitiated: Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at 547 [72] per Colvin J.