What happened
Muhumed Hassan Omar, a Somali citizen who arrived in Australia in November 2001 at the age of 15 as a refugee, had been forcibly recruited as a child soldier at age 8 during the civil war, spent six years in a Kenyan refugee camp, and suffered the loss of both parents at a young age. By the time of the proceedings he was 33, diagnosed with severe chronic schizophrenia since around 2006, and assessed as having a significant intellectual disability with an IQ of 56 placing him in the extremely low range. He had been treated in Thomas Embling Hospital under a secure treatment order and was eligible for specialist disability services under the Disability Act 2006 (Vic).
On 18 July 2016 his partner visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test by reason of a substantial criminal record and was serving a full-time sentence of imprisonment of 12 months for contravening a community corrections order. He made representations under s 501CA(3) in three detailed submissions supported by Victoria Legal Aid. These included a personal details form noting his intellectual disability and schizophrenia, psychological and neuropsychological reports from 2012, a letter from the Victorian Department of Health and Human Services confirming his eligibility for disability services, and a December 2017 submission attaching the Department of Foreign Affairs and Trade (DFAT) country information report dated 13 June 2017.
The representations expressly raised that return to Somalia would expose him to systemic and severe discrimination against persons with mental illness, arguably amounting to cruel, inhuman or degrading treatment contrary to the Convention against Torture. Specific factual claims included that mentally ill persons in Somalia are generally chained and imprisoned, that chaining is used as a locally accepted form of “alternative medication” causing physical injuries, that there is no functioning national health system, that medication is supplied irregularly by WHO or donors with poor storage conditions, and that he had no family supports, little memory of Somalia, and impaired cognitive capacity preventing him from establishing networks. The submissions also contended that return would offend Australia’s obligations under the Convention on the Rights of Persons with Disabilities, that DFAT had recorded the Somali Government’s position that refugees needing psychological or mental health support could not be returned, and that his multiple complex health needs could not be met. These matters were said to provide “powerful reasons” for a humane revocation decision irrespective of whether non-refoulement obligations were formally engaged.
The Assistant Minister, provided with a departmental brief (though the brief itself was not before the Full Court), signed a statement of reasons dated 27 February 2018 refusing revocation. At [19] the reasons recorded the claims but erroneously attributed the lengthy quotations about chaining and imprisonment to a “Convention Against Torture … report” rather than the 2010 WHO “Situation Analysis of Mental Health in Somalia” actually cited in the representations. Under the heading “International non-refoulement obligations” the Assistant Minister stated at [21] that it was “unnecessary to determine whether non-refoulement obligations are owed” because the respondent could apply for a protection visa where those obligations would be considered first in accordance with Direction No 75. Under “Extent of Impediments if Removed” the Assistant Minister at [32]-[37] “noted”, “took into consideration” or “acknowledged” the schizophrenia diagnosis, intellectual disability, systemic discrimination, chaining as treatment, lack of governmental infrastructure, irregular medication supply, absence from Somalia since age eight, lack of supports and impaired cognition. He made limited positive findings that return “would compromise his access to required medication” and “would cause Mr OMAR significant difficulties given his various complex health issues, medication requirements, his fears of return due to the treatment of mentally ill persons in Somalia and other concerns”. No explicit finding was made accepting or rejecting the chaining and imprisonment claim. In the conclusion at [94]-[97] the Assistant Minister gave significant weight to the seriousness of the respondent’s violent offending, found an ongoing likelihood of reoffending causing harm to the Australian community, and concluded that community protection outweighed “his claims of harm if returned to Somalia, his health including his psychiatric and neuropsychological conditions” and other factors. The power to revoke was therefore not enlivened.
The primary judge set the decision aside on the basis that the Assistant Minister had impermissibly deferred consideration of non-refoulement obligations. The Minister appealed. The respondent filed an amended notice of contention, the relevant ground of which (issue (e)) asserted that the Assistant Minister failed to consider the factual matters raised in the representations as constituting “another reason” for revocation irrespective of whether they engaged non-refoulement obligations. The Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) determined the appeal solely on that ground, holding that the Assistant Minister had not engaged in the active intellectual process required. The appeal was dismissed with costs.
Why the court decided this way
The Full Court reasoned that the statutory task under s 501CA(4)(b)(ii) is to decide whether the Minister is satisfied there is “another reason” why the original mandatory cancellation decision should be revoked. The representations made in response to the invitation required by s 501CA(3) are central to that task and constitute a mandatory relevant consideration, although not every individual statement within them rises to that level. Drawing on Viane at [66]-[72], the court emphasised that the Minister has a statutory duty to consider whether or not the requisite state of satisfaction to revoke exists by reference to the material in the representations. The significance of any matter is assessed by the manner in which it is expressed; a clearly articulated and significant representation that the person may suffer harm if returned must be given meaningful consideration and cannot be dismissed by a formulaic statement that all matters have been considered.
The obligation to “consider” imports an active intellectual process. The court adopted the analysis in Tickner v Chapman (Burchett J at 476-477 and Kiefel J at 495) that to consider material the decision-maker must obtain an understanding of the facts and contentions, apply his or her own mind to them, and evaluate them rather than rely on an assessment made by others. This was reinforced by Carrascalao, which, although dealing with s 501(3), confirmed that even absent an express statutory duty to “consider”, an implicit duty arises and is not discharged by statements that the Minister has given “full consideration” if the surrounding circumstances and reasons reveal otherwise. The court noted the human consequences of visa cancellation and removal, citing Hands at [3] that public power in this context must confront what is being done to people and cannot be satisfied by decisional checklists or mechanical formulaic expression.
Applying these principles, the Full Court held that the Assistant Minister’s reasons disclosed a failure to engage at the required level. At [42]-[43] the court identified seven specific deficiencies. First, the reasons repeatedly “noted” or recorded that submissions “state” certain matters (e.g. [33]) without making any finding accepting or rejecting the core contention that mentally ill persons are chained and imprisoned as a form of treatment causing physical injury. Second, the erroneous attribution at [19] of the WHO material to a “Convention Against Torture report” indicated a lack of close attention to an important detail. Third, the few explicit findings made (compromise of medication access at [35] and “significant difficulties” at [37]) bundled the extreme factual claims about chaining with more general health and support issues, suggesting the decision-maker had not confronted the gravity of the specific claims. Fourth, the prefatory words “Taking into account all of the above considerations” at [37] could not cure the absence of findings on centrally significant matters. Fifth, no findings were made on the claimed breach of obligations under the Convention on the Rights of Persons with Disabilities or the DFAT statement that persons needing mental health support cannot be returned. Sixth, the structure of the reasons suggested the Assistant Minister proceeded on the basis that these factual matters could be deferred to a protection visa process. Seventh, the closing generalised statements at [91] and [98] that “all relevant matters” and “all of these matters” had been considered did not overcome the earlier deficiencies.
The court concluded at [44] that a substantial reason for the failure was the Assistant Minister’s belief that the claims could be dealt with later, which overlooked the distinction drawn in DOB18 at [185]-[186] between considering the underlying claims of harm and characterising them as non-refoulement obligations. Because there was a realistic possibility that proper engagement might have produced a different outcome on whether “another reason” existed, the error was material and jurisdictional. The primary judge’s finding that the harm claims had been considered was therefore erroneous, and the orders below were upheld on the alternative basis in the amended notice of contention.
Before and after state of the law
Prior to this decision the law was informed by a series of authorities on the interaction between ss 501CA and protection visa decision-making. BCR16 had held that non-refoulement obligations play a different role in the discretionary power under s 501CA(4) than in a protection visa assessment under s 65, and that a decision-maker could not simply postpone consideration. Goundar, Minister for Immigration and Border Protection v BHA17 and Viane clarified that while not every sentence in representations is mandatory, significant clearly expressed claims that could amount to “another reason” must be considered in forming the state of satisfaction. DOB18 emphasised the distinction between harm claims themselves and their characterisation as engaging non-refoulement obligations. Carrascalao provided guidance on the content of the obligation to consider, drawing on Tickner v Chapman to require an active intellectual process rather than reliance on summaries or checklists. Hands underscored the need to confront the human consequences of executive decisions affecting long-term residents.
The Minister had contended that non-refoulement obligations are not mandatory relevant considerations and that Ibrahim was plainly wrong in suggesting otherwise. The court expressly left those questions undecided, as resolution of issue (e) made it unnecessary to reach them. Direction No 75, which requires protection criteria to be assessed before character criteria in protection visa applications, was also left for another day.
After the decision the law is clearer that, even where a decision-maker intends to allow a protection visa application to deal with non-refoulement, the factual substance of representations about risk of harm must still be grappled with at the s 501CA stage if they are significant and clearly raised as an independent reason for revocation. A decision-maker cannot satisfy the statutory task by noting claims, misdescribing their sources, failing to make findings on their veracity or gravity, or subsuming them into vague references to “difficulties”. The reasons must demonstrate that the decision-maker has brought his or her mind to bear on the contentions. The accountability function of s 501G reasons is reinforced: an absence of reference to a clearly raised significant matter may support an inference of non-consideration. The decision does not alter the “decisional freedom” the Minister enjoys in deciding what constitutes “another reason”, but it constrains the process by which that freedom is exercised. Subsequent decision-makers must now ensure their statements of reasons contain explicit engagement with the substance of serious harm claims of the kind advanced here.
Key passages with plain-English translation
At [34(f)] the court quoted Robertson J in DOB18: “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.” Plain English: There is a difference between actually looking at the facts a person puts forward about how they will be hurt if sent home, and simply saying “we’ll look at the legal label of non-refoulement later in a protection visa”. The first must happen now.
At [36] the court adopted Burchett J’s explanation in Tickner v Chapman that to “consider” material “the Minister is required to apply his own mind to the issues raised … He must ascertain them. He cannot simply rely on an assessment of their worth made by others”. Plain English: The minister cannot outsource the thinking. He or she must read and understand the claims, not just accept a departmental summary that says the claims have been looked at.
At [39] the court stated: “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 …”. Plain English: Saying “I have noted your claim that you will be chained up” is not enough. For really serious claims backed by reports, the minister must decide whether he or she believes the claim is true and how bad the risk is.
At [40] the court observed that it was “difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury”. Plain English: Claims about chaining and beating of mentally ill people are at the highest level of seriousness and cannot be brushed aside with vague language.
At [43(a)] the court said paragraph 33 of the reasons was “particularly revealing” because although it recorded the submission about systemic discrimination “arguably amounting to cruel, inhumane and degrading treatment” and chaining as “locally accepted treatment”, “the Assistant Minister makes no finding one way or the other as to whether he accepted that submission”. Plain English: The minister wrote down what was said but never decided whether it was right or wrong. That is the opposite of genuine consideration.
At [45], citing Colvin J in Viane at [75], the court concluded that the failure to consider significant matters raised in the representations is “a material breach of an express or implied condition of the valid exercise of a decision making power”. Plain English: The Act requires the minister to look at what people say before cancelling their visa forever. Skipping that step makes the decision unlawful.
What fact patterns trigger this precedent
This precedent is triggered whenever an affected person makes representations under s 501CA(3) that clearly and significantly raise factual claims of harm or hardship upon return that are capable of constituting “another reason” for revocation, and those claims are independent of, or additional to, any characterisation as non-refoulement obligations. The claims need not be limited to refugee convention grounds; they can include risks arising from mental illness, intellectual disability, lack of family or social supports, absence from the country of nationality since childhood, absence of medical infrastructure, stigma, chaining or other degrading treatment, and breaches of international conventions such as the Convention on the Rights of Persons with Disabilities.
The precedent applies with particular force where the representations are supported by independent evidence such as psychological or neuropsychological reports, departmental country information (DFAT), WHO reports, or letters from state disability services. It is engaged when the statement of reasons merely “notes”, “acknowledges”, “takes into consideration” or records that “submissions state” the matters without making explicit findings accepting or rejecting the core factual contentions, misattributes the source of quotations, bundles extreme claims (chaining, imprisonment, physical injury) into generalised descriptions such as “significant difficulties”, or appears to proceed on the basis that the claims can be deferred to a protection visa or other later process. It is also triggered where the reasons contain only broad concluding statements that “all relevant matters” have been considered when the detailed treatment of the claims earlier in the reasons demonstrates a lack of active intellectual engagement.
The fact pattern does not require that the claims ultimately would have succeeded; it is sufficient that there is a realistic possibility that proper consideration might have altered the outcome on whether “another reason” existed. The precedent is not engaged by insignificant, vague or peripheral assertions, nor does it require the decision-maker to accept the claims. What it prohibits is the failure to confront and evaluate them.
How later courts have treated it
The judgment itself treats earlier authorities as establishing the applicable principles and applies them without reservation. It follows Viane at [66]-[72] and [75] for the proposition that the obligation to consider representations is not met by having regard to only some significant matters, and that a material breach of the implied condition in the Migration Act constitutes jurisdictional error. It follows DOB18 at [185]-[186] for the distinction between harm claims and their non-refoulement characterisation, citing that passage four times. Carrascalao is applied for the content of the active intellectual process obligation and the permissibility of drawing inferences from the brevity of time or the form of the reasons. Tickner v Chapman is applied for the classic statement that the decision-maker must ascertain the facts and contentions and apply his or her own mind rather than rely on others’ assessments. Hands is cited with approval for the proposition that the human consequences of removal require honest confrontation rather than formulaic expression. Yusuf and Minister for Immigration and Ethnic Affairs v Wu Shan Liang are cited for the principles that an inference of non-consideration may be drawn from absence in the reasons and that reasons are to be read fairly and not with an eye keenly attuned to error. BCR16 and Ibrahim are cited but their central propositions are not determined, indicating the court treated them as raising live but unnecessary questions.
The judgment does not itself purport to overrule any authority. It distinguishes the primary judge’s approach by holding that, although the primary judge correctly noted that harm was considered “in some detail”, that consideration was not legally sufficient because it lacked the active intellectual engagement required. The decision therefore stands as an application and reinforcement of the pre-existing line of Full Court authority on the quality of consideration required under s 501CA.
Still-open questions
The court expressly left several issues unresolved. First, whether non-refoulement obligations are mandatory relevant considerations that must be assessed in every s 501CA(4) decision even when a protection visa application remains available. Second, whether the primary judge erred in finding jurisdictional error on the basis that the Assistant Minister had deferred consideration of non-refoulement obligations. Third, whether the Full Court’s reasoning in Ibrahim at [106]-[116] is plainly wrong; the Chief Justice had convened a five-judge bench for that purpose but the point became unnecessary once issue (e) was decided in the respondent’s favour. Fourth, whether Direction No 75, which requires protection criteria to be considered before character criteria in protection visa applications, has the effect of reversing the outcome in BCR16. These questions remain open and will require determination in a future case where the outcome turns on them rather than on the anterior obligation to engage with the factual content of representations. The court also left open the precise boundaries of what constitutes a “significant” representation that triggers the active intellectual process obligation, noting at [34(g)] that not every matter raised can be elevated to mandatory status. Finally, the interaction between the obligation identified here and the Minister’s non-compellable powers under ss 501C or 417 was not explored.