Authority
21 Two days before the hearing of this application, Colvin J published a decision concerning an allegation before his Honour to the effect that claims made in support of an application for merits review of a decision not to revoke a mandatory visa cancelation decision had not been properly considered as required by the operation of s 501CA(4): Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229.
22 Mr Ngatupuna was quick to seize upon Guttridge and base his case around it, rather than dwell very much on the cases considered so thoroughly by Colvin J, or upon other cases. In particular, reliance is placed upon [14] to [26], where his Honour helpfully and comprehensively summarised the applicable principles. I gratefully adopt, endorse and reproduce those paragraphs, especially as little more is needed for this case:
[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 [now reported at (2021) 395 ALR 403] 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].