Review for insufficiency in deliberation by a statutory decision maker
14 In order to demonstrate jurisdictional error, it must be shown that the decision that has been made lacks the characteristics necessary for it to be given force and effect by the statute. It must be a decision of a kind that the Tribunal was not authorised by the statute to make: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]-[25] (Kiefel CJ, Gageler and Keane JJ).
15 A claim that a statutory decision-maker has not given proper, genuine and realistic consideration to a particular matter is a contention that the nature and extent of deliberation undertaken by the Tribunal in respect of the matter was insufficient. There is no general rule as to the nature and extent of the deliberation that is required by a statutory decision maker in order to make a valid decision. In each case it is necessary to pay close attention to the statutory provisions to discern what they require concerning the characteristics of the deliberation that must be undertaken in order for the decision to conform to the particular statute.
16 In Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 a five member Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) dealt with the circumstances in which a failure to consider matters raised by a person under s 501CA as a reason for revoking a visa cancellation may amount to jurisdictional error. In the course of so doing, the Court set out what was required to perform the statutory task of considering a significant representation that was advanced concerning a matter that the decision-maker was required by the terms of a direction under s 499 of the Migration Act to consider. The Court described what was required as meaningful consideration. At [39], their Honours said:
Giving meaningful consideration to a clearly articulated and substantial or significant representation…requires more than the [decision-maker] simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the [decision-maker] may be required to make specific findings of fact…by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.
17 Therefore, where a significant representation depends upon material advanced to establish the basis for the representation, the decision-maker must make specific findings about what to accept in order to consider the representation. Earlier in its reasons, the Court in Omar had emphasised the observations of Kiefel J (when the Chief Justice was a member of this Court) in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 495, where her Honour said (in a different legislative context):
To 'consider' is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
18 The Court in Omar also referred to the reasons of Burchett J in Tickner v Chapman at 476:
What is it to 'consider' material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others... It is his task to evaluate them, a task he can only perform after he knows what they actually are.
19 Tickner v Chapman was a case concerned with a statutory obligation imposed upon a Minister to consider a report and any representations attached to the report. The Minister's task was not exercised by delegation. In those circumstances, there was a particular focus upon the extent to which the Minister could rely upon departmental assistance in performing the statutory task. The reasons emphasised the need for the Minister personally to form his own view on the facts (Kiefel J) and to ascertain and evaluate the facts and contentions in the material (Burchett J).
20 Of course, care must be taken in applying these statements concerning a different statutory power to the particular task to be undertaken under s 501CA. Recently, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 the High Court considered the nature and extent of the fact finding obligation that falls upon the Minister when making a personal decision under s 501CA. In their joint reasons, Keane, Gordon, Edelman, Steward and Gleeson JJ said of the statutory scheme mandated by s 501CA that it:
…necessarily requires the Minister to consider and understand the representations received. What is 'another reason' is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non‑refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials 'do not include, or the circumstances do not suggest, a non-refoulement claim'. The power must otherwise be exercised reasonably and in good faith.
(footnotes omitted).
21 Their honours continued at [14]-[15]:
No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the 'relevant information' given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is 'another reason' why the cancellation decision should be revoked. Deciding whether or not to be satisfied that 'another reason' exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.
If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that 'another reason' exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.
(footnotes omitted)
22 After considering matters relating to the use by the Minister of personal or specialised knowledge or the accumulated knowledge of the Minister's department, the Court concluded at [22]:
It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected.
23 The above reasoning emphasises that it is for the Minister, when acting personally, to form a view as to whether a matter advanced may amount to 'another reason'. Further, it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material. Those two aspects explain the opening statement (quoted above) that 'no part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant' (emphasis added).
24 I do not understand any aspect of the reasoning in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane to detract from what was said in Omar in a case where the matters specified in a direction under s 499 must be considered.
25 In the present case we are concerned with a deliberative obligation that is imposed upon an independent statutory Tribunal which is directed by the Minister as to the matters that it must consider by the terms of Direction 90. Certain of the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) do not apply to an application or review by the Tribunal: see s 500. However, they do not include s 43 which requires the Tribunal to give reasons for its decision that 'include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based': s 43(2B) of the Administrative Appeals Tribunal Act. Therefore, in respect of representations made to the Tribunal concerning matters that the Tribunal is directed to consider which representations depend upon factual matters, it may be expected that the consideration that it must undertake is one which will enable it to discharge its statutory obligation to provide reasons that set out its findings on those factual matters. The Tribunal must know and understand such facts (what they say) and form its own view concerning them. It is only once that point has been reached that the Tribunal is in a position to undertake the statutory task of sifting the various considerations. It is an essential part of the deliberative task of considering representations as to matters that the Tribunal must consider that views are formed as to any factual material advanced as the foundation for those representations.
26 It has also been said that a decision-maker must bring to bear an active intellectual process or that there must be an active intellectual engagement with the matters raised: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [36]-[46]; Ali v Minister for Home Affairs [2020] FCAFC 109 at [45] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [76].
27 As has been noted, the first ground of review in the present case adopts the form of alleging a failure by the Tribunal to give 'proper, genuine and realistic consideration' to the interests of the two boys (particularly as to the likely effect of their separation from their father). Formulations of that character are used in the cases to make the point that any required consideration (whether it be an express or implied obligation to consider a particular matter or a requirement to have regard to specified matters or some other formulation) must have genuine content. However, it has been observed that there is danger in using such terminology to express the nature of the statutory task because it may encourage the Court to evaluate the merits of the reasoning: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]-[30] and Omar at [36]. All of which is emphasise that in a case like the present it is necessary to first consider closely the characteristics of the deliberative statutory task that the Tribunal was required to perform.
28 There are five significant attributes of the statutory decision-making power entrusted to the Tribunal in the present case.
29 First, although providing for the visa of a person in the circumstances of the applicant to be cancelled mandatorily, the statute also mandates a process to be followed thereafter by which the applicant (as the person whose visa was cancelled) can require a view to be formed as to whether matters advanced by that person by way of representations are a reason why the cancellation should be revoked. In cases like the present the sentencing of Mr Guttridge to a term of imprisonment of more than 12 months is the sole reason why his visa has been cancelled. Therefore, other factors that might be thought to be relevant to whether cancellation was appropriate in the particular circumstances are first considered as part of the subsequent decision whether to revoke the visa cancellation. It is the mandatory terms of s 501CA that afford that opportunity.
30 Secondly, the nature of the deliberation required is the formation of a state of satisfaction. It concerns whether the character test specified in s 501(6) is satisfied and whether there is 'another reason' why the visa cancellation should be revoked. In the present case, by reason of the availability of merits review, the formation of that state of satisfaction is entrusted to the Tribunal. It was required to form the state of satisfaction as to whether there was another reason to revoke the cancellation. As explained in Omar, in order to form that state of satisfaction, the Tribunal was required to consider substantial or significant matters raised by way of representations. In the context of the Tribunal's procedures, those representations included, at least, such matters as were articulated by way of submissions to the Tribunal.
31 Thirdly, the Tribunal is required to conform to the requirements of Direction 90 which, amongst other things, requires the Tribunal to have regard as a primary consideration to the interests of children affected by the decision and sets out the factors which the Tribunal must consider in having regard to those interests. In context, the formulation 'have regard to' requires the interests of children to be considered as a matter that might be brought to account with other considerations in forming the overall state of satisfaction, but does not require those interests to be brought into account and given particular weight (whether in a fundamental way or otherwise) in reaching the required decision. Direction 90 does not give the interests of children the character of a mandatory relevant consideration. I considered the relevant authorities in Nguyen v Minister for Home Affairs [2019] FCA 892 at [6] and their application in the context of a predecessor to Direction 90 that was expressed in similar terms in Jan v Minister for Home Affairs [2019] FCA 1837 at [23]-[28]. Therefore, as stated in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ) 'it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence'. However, the interests of children is identified as a 'primary consideration' and para 7(2) of Direction 90 says that primary considerations should generally be given greater weight than other considerations.
32 Fourthly, the subject matter of the Tribunal's deliberation is significant. It concerns the status of a person under the Migration Act and has the potential to affect the life circumstances of the person concerned in a fundamental way. This is especially so in cases like the present where (a) the person has been resident in Australia for most of their life; and (b) the interests of minor children may be affected because of the prospect that they may be deprived of the care and nurture of a person undertaking a parental role. The character and quality of consideration that must be undertaken in forming the required state of satisfaction for the purposes of s 501CA(4) was expressed by Allsop CJ (Markovic and Steward JJ agreeing) in the following terms in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]:
…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.
33 Fifthly, the Tribunal (as the body to whom the legislature has entrusted the statutory task of undertaking the merits review) is an independent statutory Tribunal with members appointed based upon their decision-making expertise. They are required to conduct a hearing at which there is an opportunity to present both supporting materials and submissions (subject to the terms of s 501(6H) of the Migration Act requiring at least 2 business days' notice of information to be presented to the Tribunal) and are required to provide reasons for their decision which state the findings which support those reasons.
34 The first three matters just stated concern the nature of the deliberative power entrusted to the Tribunal. The fourth concerns the significance of the subject matter of the power. The fifth concerns the characteristics of the repository of the power.
35 It is important to have each of these aspects in mind when considering whether the Tribunal's deliberations were of the requisite kind. In order for the determination to be valid it must exhibit deliberative characteristics which conform to the nature of the decision-making power, what may reasonably be expected by way of deliberation given the significance of the subject matter of the decision and what may be expected by way of deliberation given the characteristics of the repository of the power. Put another way, by entrusting to an independent statutory Tribunal a decision-making power of the kind described in s 501CA(4) with its likely substantial consequences for a person whose visa has been mandatorily cancelled without consideration of the personal consequences of that decision (and which may have been made in respect of a person who has lived in Australia for much of the person's life) and subjecting the exercise of that power by the Tribunal to a direction such as Direction 90, Parliament required the making of a considered decision of a particular character. It was required to be based upon factual findings as to the matters advanced to support significant representations concerning matters in the direction and undertaken with the degree of deliberation that the subject matter required and in a manner that might be expected of a member of the Tribunal.
36 The authorities also emphasise that considerable care must be exercised in a case of the present kind in maintaining the distinction between a review which evaluates the merits of the Tribunal's decision (on the one hand) and a review that is confined to ensuring that the Tribunal performs its statutory decision making power by undertaking deliberation of the requisite kind (on the other hand). So, it is often said that a Court when conducting a review based upon a claim of jurisdictional error of the kind alleged in the present case must not 'slide into merits review'. In that epithet is captured an important warning that the Court must not in the name of keeping the Tribunal within the limits of its statutory authority undertake the false step of itself usurping that authority. However, that is not to say that the Court is not concerned with the merits of the case before the Tribunal. In many instances (the present is one) an understanding of the merits is necessary in order to evaluate whether the required kind of deliberation was undertaken. In a case like the present it is necessary to understand what was advanced before the Tribunal and the manner in which the Tribunal dealt with the merits, especially the extent to which it made factual findings as to matters that were relied upon in respect of representations that the Tribunal was required to consider. It is necessary not in order to reach any conclusion as to the correctness or otherwise of the Tribunal's view on the merits but rather to evaluate whether the Tribunal's view on the merits was the outcome of a deliberation of the kind that the legislature required the Tribunal to undertake in order for it to have the authority to determine those merits.
37 Finally, the following statement by the Court (Flick, Griffiths and Moshinsky JJ) in GBV18 v Minister for Home Affairs [2020] FCAFC 17 at 32 should be observed:
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 re-emphasise 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.