Ground five: failure to consider risk of harm
69 By his fifth ground of challenge to the Non-Revocation Decision, the applicant charges the Minister with having failed properly to consider the representations that he advanced about the hardships that we would endure were he to be removed to South Sudan.
70 In AFD21, I made (at [41]-[46]) the following observations about the Minister's obligation to consider contentions advanced under s 501CA(4)(a) of the Act:
41 There is no doubt that the Minister was obliged to consider the submissions that the applicant put in support of revocation (including that, if he were returned to Burundi, he was at risk of being killed on account of his mixed Tutsi/Hutu origins): Omar, [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); DQM18 v Minister for Home Affairs [2020] FCAFC 110 ("DQM18"), [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 ("Buadromo"), 332 [42] (Besanko, Barker and Bromwich JJ). At issue is what such "consideration" actually required in this case: did it require something other than engagement by the Minister in an active intellectual process directed at the representations by which he was confronted (see, for example: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 ("CAR15"), 149-150 [76]-[79] (Allsop CJ, Kenny and Snaden JJ); Buadromo, 332 [42]-[43] (Besanko, Barker and Bromwich JJ)); did it, for example, require that he form and state a view or conclusion or "finding" addressing the point that was advanced?
42 In Omar, the full court observed at [39] (emphasis added):
Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia's non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister 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 (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]-[36] per Perram J).
43 Later, their Honours explained that the representations in issue in that case - namely, that the appellant was at risk of substantial harm if returned to his native Somalia - "…were of such central significance that the Assistant Minister had to engage with them properly and make findings of fact one way or the other" (emphasis added): Omar, 608 [43(a)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).
44 In Buadromo - which, like Omar, was another case concerning the application of s 501CA(4) of the Act - the full court identified (at 332 [46]) some circumstances in which findings regarding contentions advanced by an applicant might not be required:
A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.
(emphasis added)
45 Although Omar leaves open the possibility that a decision-maker will, in some circumstances, be obliged to make specific findings as to whether or not (or as to the likelihood that) an applicant will be subjected to a species of harm to which he or she fears being subjected upon removal from Australia, it remains the case that "…the duty to consider a representation does not necessarily require the making of a finding of fact…": CTB19, [15] (McKerracher, Kerr and Wigney JJ), citing Buadromo, 332 [46] and Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, 653-654 [41] (Rares and Robertson JJ, with whom Flick J agreed in the result).
46 In Guclukol v Minister for Home Affairs [2020] FCA 61 (Snaden J) - a revocation case not unlike the present - the applicant complained about a decision-maker's failure to make a finding as to his submission that, if removed to his native Turkey, he would "struggle to subsist". I made the following observations (at [28]):
The difficulty that often, if not always, arises in cases such as the present (and that arose in Omar and Buadromo) is that determination of the consequences or circumstances that an applicant will face if removed from Australia - that is, the consequences or circumstances by reason of which it is said that there is "another reason" under s 501CA(4) of the Act why the decision to cancel his or her visa should be revoked - typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn't easily permit of definitive findings. The present case is a good example. It is, of course, the case that the applicant's fate if returned to Turkey is not (and cannot be) precisely known. He might, as he submitted to the Minister, "struggle to subsist". He might not.
Those observations were not disturbed on appeal and have since been the subject of apparent approval: CTB19, [15] (McKerracher, Kerr and Wigney JJ).
71 Those observations apply in the present context. The applicant's contention that, were he to be removed to South Sudan, he was at risk of subjection to violence, was a contention that the Minister was obliged to consider before deciding, one way or the other, whether there was "another reason" for revoking the Cancellation.
72 By his written submissions, the applicant contended (references omitted):
61. If the Minister is satisfied on the material presented that a relevant claim is made out to a required level of certainty, the Minister must make a positive finding to that effect. If the Minister is not so satisfied, the Minister must make a negative finding. The issue in this matter is that the Minister makes no finding and this gives further rise to the inference that the Minister did not engage in an active intellectual process with [the applicant]'s representations.
73 With respect, I do not accept - at least in the circumstances of this case - that the Minister was obliged to make a finding about whether or not the harm that the applicant said that he feared would befall him in South Sudan would or would not, in fact, be realised. In circumstances where the contention was pitched at a level of generality and involved, as inevitably it did, a healthy degree of speculation, "…the duty to consider [it did] not necessarily require the making of a finding of fact": Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 (2020) 280 FCR 178 ("CTB19"), 185-186 [15(9)] (McKerracher, Kerr and Wigney JJ).
74 Whether or not the Minister considered what the applicant advanced is a question of fact, which, in the usual course, is to be established as a matter of inference. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court held (at 604 [47]) 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.
75 Those observations (or analogues of them) have been applied more recently. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, (Griffiths, White and Bromwich JJ), the court held (at 364 [48]) that a finding that a decision maker "…has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof". Those observations were endorsed in CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ), GBV18 v Minister for Home Affairs & Anor (2020) 274 FCR 202, 219 [32] (Flick, Griffiths and Moshinsky JJ) and CTB19, 184-186 [15] (McKerracher, Kerr and Wigney JJ). Further, "…the court should be slower to infer an absence of consideration of a contention that lacks specificity or detail than it might otherwise be in the case of one advanced with greater particularity": AFD21, [50] (applying Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385, 405 [62] (Thawley J)). Put another way, a claim that is advanced summarily or in general terms may not warrant anything more than general or summary consideration: AXT19 v Minister for Home Affairs [2020] FCAFC 32, [56] (Flick, Griffiths and Moshinsky JJ).
76 On the facts presently before the court, it should not be inferred that the Minister failed to consider anything that the applicant advanced about the risk of harm that he would or might endure in the event that he is removed to South Sudan. The Non-Revocation Decision discloses an apparent consciousness of the submissions that the applicant advanced in that respect. Whether or not the applicant's fears will be realised is a question that does not lend itself to the making of definitive findings; but their absence in the Minister's reasons does not mean that the issue went relevantly unconsidered. On the contrary, the Minister in the present case was alive to the fact that South Sudan was "a war-torn country which has general political instability," recorded the concerns that the applicant had advanced and accepted that the applicant would face "significant hardship" if returned there. However general those observations might fairly be described as, they reflect the general nature of the representations that the applicant advanced. It is apparent that the Minister did not consider that the matters that the applicant raised were sufficient to constitute "another reason" for revoking the Cancellation. That conclusion was open to him to draw.
77 I do not accept that the Minister, in the present case, failed to consider the representations that the applicant asked him to consider. The applicant's fifth ground of challenge is not made good.