FEDERAL COURT OF AUSTRALIA
Minister for Home Affairs v Omar [2019] FCAFC 188
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 The Minister for Home Affairs appeals from orders made by the Court on 7 March 2019. Those orders gave effect to the primary judge’s reasons for judgment which are published as Omar v Minister for Home Affairs [2019] FCA 279. Her Honour set aside a decision by the Assistant Minister under s 501CA(4) of the Migration Act 1958 (Cth) (Act), in which he declined to revoke the mandatory cancellation of the respondent’s partner visa.
2 The respondent relies on an amended notice of contention which seeks to uphold the Court’s orders below on grounds other than those relied upon by the primary judge.
3 The key issues which potentially arise may be summarised as follows:
(a) Did the primary judge err in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) by deferring consideration of any non-refoulement obligations to a future protection visa application by the respondent?
(b) Are non-refoulement obligations mandatory relevant considerations under s 501CA?
(c) Is the decision of the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [106]-[116] plainly wrong, as contended by the Minister? In light of this contention, the Chief Justice directed that the appeal be heard by five Judges.
(d) Does Direction No 75 reverse the effect of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456?
(e) Did the primary judge err, as contended by the respondent, in not holding that the Assistant Minister had made a jurisdictional error by failing to consider the matters (including factual matters) raised by the respondent in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations.
4 In oral address, the Assistant Minister accepted that if issue (e) was determined in the respondent’s favour, the other issues did not arise for determination.
5 As will shortly emerge, we consider that issue (e) should be determined in the respondent’s favour, consequently the other issues need not be determined, including the challenge to the correctness of Ibrahim. Also, although issue (a) need not be determined separately from issue (e), there is some overlap between the two issues inasmuch as there are some factual matters which underpin both issues.
Summary of background facts
6 The respondent is a citizen of Somalia. He arrived in Australia in November 2001, aged 15 years. He is now 33 years old. His mother died before he could remember and his father died when he was 7 years old. Until his arrival in Australia he believed his aunt to be his biological mother, and her children to be his siblings. Three years after civil war in Somalia broke out in 1991, when aged 8 he was recruited forcibly as a child soldier by a militia group. He was rescued from the militia by a family friend and returned to his aunt. Soon after his rescue he fled to a refugee camp in Kenya with his cousins, while his aunt remained in Somalia. He remained in the refugee camp for 6 years, while aged 8-14. He came to Australia in 2001 with his cousins to join his aunt who had come some years previously. He held a partner visa as a member of his aunt’s family unit. It is undisputed that he suffers from severe mental health problems, including schizophrenia, as well as having a severe intellectual disability.
7 On 18 July 2016, the respondent’s partner visa was cancelled under s 501(3A), on the basis that he had a “substantial criminal record” by operation of s 501(6)(a) and, at the time of cancellation, he was serving a full-time sentence of imprisonment of 12 months for contravening a community corrections order (see ss 501(3A)(a)(i) and (b)).
(a) Respondent’s representations concerning risk of harm in Somalia arising from his mental health conditions
8 The respondent made representations under s 501CA(4) in support of his request that the mandatory visa cancellation be revoked. He sent a request for revocation of a mandatory visa cancellation dated 3 August 2016. Together with the request was a personal details form which indicated that he suffered from an intellectual disability and schizophrenia. He indicated that a more detailed submission in support of his revocation request would be provided. By a letter dated 8 December 2016, Victoria Legal Aid (acting for the respondent) made detailed representations in support of the revocation request. As instructed by the Department in its letter dated 18 July 2016 to the respondent, the representations addressed the parts of the Minister’s Direction No 65 which were relevant to the respondent’s circumstances. It is unnecessary to summarise all of those representations. For the purposes of issue (e), it is sufficient to focus upon the representations made on behalf of the respondent in respect of his mental illness and the risk of harm he faced if he were returned to Somalia because of his mental health and intellectual problems.
9 The respondent’s representations dated 8 December 2016 included an express contention that non-refoulement was a matter relevant to the issue of revocation. Moreover, and significantly, it was explicitly stated that if this contention was not accepted and the decision-maker considered that it was unnecessary to determine whether non-refoulement obligations were owed to the respondent, other matters remained apposite. They included the “cogent evidence of the fragility of his mental state and… he is held in a restricted and isolated environment which is very likely to compromise his mental stability”. This statement was made in the immediate context of the respondent’s detention on Christmas Island, but it plainly had wider ramifications particularly with reference to what was stated in the next section of the representations dated 8 December 2016.
10 That next section of the representations is headed “Extent of Impediments if Removed”, the following matters were put in support of the revocation request (emphasis added):
Extent of Impediments if Removed
As detailed, Mr Omar has a confirmed diagnosis of schizophrenia and has been assessed to have an intellectual disability with a cognitive functioning of intelligence quotient of 56 and putting him within the extremely low range.
There is evidence that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, arguably amounting to cruel, inhumane and degrading treatment in contravention of obligations pursuant to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment19.
Many Somalis with mental illness are socially isolated and vulnerable. The pain of this isolation is felt intensely because Somali culture is traditionally communal and family oriented. The mentally ill are generally chained and imprisoned. The country knows only five health care services...
The containment with chains of mentally challenged people is prevalent in both urban and rural areas...This is also used as a locally accepted medical treatment in mental health facilities...chaining patients is seen as an alternative medication, with not only leaving the patients stigmatised but also causing physical injuries on their hands and legs20.
In addition to the obvious suffering due to mental disorders, there is a hidden burden of stigma and discrimination faced by those Somalis with a mental disorder. Violations of basic human rights and freedom, and denial of civil, political, economic, social and cultural rights to those suffering from mental disorders are a common occurrence in the different Somali regions, both within the mental health facilities and in the community. Much of this goes unreported and therefore remains unquantifiable.
It is further submitted that forcibly returning Mr Omar to Somalia would expose him to the risk of such treatment. He is prescribed medication for treatment of his schizophrenia. Since his diagnosis in 2006 Mr Omar’s medication has predominantly been administered through a monthly depot injection. His return to Somalia would compromise his access to his medication:
All Somali zones depend almost entirely on external sources (international aid or international remittances) for health financing. This reflection becomes more worrying when it is applied on mental health, a neglected and almost forgotten sector. It is widely perceived that no governmental or institutional infrastructure exists in the country which is capable of supporting the development or expansion of mental health care... .
The availability of drugs on a daily basis has been an issue raised by all respondents. The hospitals do not purchase the drugs. They are usually provided on an irregular basis by WHO and/or private donations/INGO supplies... All facilities complained about very poor storage conditions such as poor safety of the store, ventilation and space arrangements.
In addition to the difficulties in accessing basic income, accommodation and other factors necessary for survival in Somalia, medication security is a significant consideration for Mr Omar. Any such access is further compromised by his cognitive impairment and the fact that he has not been in Somalia since he was 8 years of age. He has little memory of the country, no social or family supports and an impaired cognitive capacity that would not facilitate him easily establishing such networks by himself.
Australia is a signatory to and has ratified the Convention on the Rights of Persons with Disabilities. Somalia is not and to return Mr Omar to Somalia would offend Australia’s obligations under this international convention.
In summary, there are powerful reasons why a decision maker can make a humane decision in relation to Mr Omar’s revocation request.
11 For reasons which will shortly become apparent, it should be noted that footnote 19 in that extract is a reference to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and, as was made clear at the bottom of page 12 of the submission, footnote 20 referred to a 2010 report by the World Health Organisation (WHO) entitled “A Situation Analysis of Mental Health in Somalia”. It is evident from [19] of the Assistant Minister’s statement of reasons (which is set out at [21] below) that the Assistant Minister proceeded on the erroneous basis that the lengthy quotations in the representations relating to the mentally ill being generally chained and imprisoned in Somalia were taken from a document which he described as the “Convention Against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment (United Nations Convention Against Torture) report”. In fact the quotations are from an entirely different document, namely the 2010 report by the WHO referred to above.
12 The representations dated 8 December 2016 were accompanied by several reports and other documents, including a psychological report dated 20 March 2012 by a clinical psychologist and a neuropsychological report dated 27 April 2012. It is evident that these reports were obtained in relation to the sentencing of the respondent, but they were relied upon in support of his revocation request. Both reports are comprehensive. The former report states that the respondent’s “schizophrenic illness has been severe, chronic, at times not responsive to treatment, and prone to rapid relapse”. It also states that there “is objective evidence that a prison environment quite rapidly has had an adverse effect on Mr Omar’s mental state” and that there “are strong grounds to conclude that imprisonment is a more difficult experience for Mr Omar than it is for someone without his mental disorder and personal history”. The second report stated that Mr Omar had an IQ of 56 and that he was basically illiterate. The report concluded that:
Whatever the cause it would appear that Mr Omar has significant intellectual deficits and that he should be referred to the Department of Human Services for further assessment with respect to his eligibility to receiving (sic) specialist disability services..
13 Another document which accompanied the representations dated 8 December 2016 was a letter from the Victorian Department of Health and Human Services dated 6 December 2016 in which it was stated that the respondent had been:
… assessed by psychologist Ms Shireen Dass in August 2012 and was found to have an intellectual disability as defined by the Disability Act, 2006. In August 2012 Mr Omar was found within target group and so eligible to receive services through Disability Client Services.
14 By a letter dated 22 August 2017, Victoria Legal Aid made a second detailed submission in support of the revocation request. It was pointed out there that, when the respondent signed a formal “counselling letter” dated 5 August 2008, he was scheduled at Thomas Embling Hospital and was subject to a secure treatment order which indicated that he was “significantly psychiatrically unwell”; that he had been diagnosed with schizophrenia in around 2006; that this condition remained sufficiently chronic to warrant his continued detention at Thomas Embling Hospital, and that his intellectual disability was not formally diagnosed until 2012.
15 In a third detailed submission by Victoria Legal Aid, dated 21 December 2017, extensive material was provided regarding the respondent’s mental health, intellectual disability and cognitive impairment. This material included a letter dated 22 August 2012 from the Victorian Department of Human Services, which confirmed that the respondent had been assessed as having “an intellectual disability as defined in Disability Act 2006…”. The submission dated 21 December 2017 also attached a copy of a country information report dated 13 June 2017 published by the Department of Foreign Affairs and Trade (DFAT Report) which recorded that in 2015 the Somalian Government announced that “refugees in need of psychological and mental health support cannot be returned to Somalia”. It was submitted that the respondent’s “multiple and complex health needs cannot be cared for in Somalia and returning him would be cruel in all the circumstances”. It was put that the respondent is “a Somali orphan and refugee who is profoundly impaired by schizophrenia and an intellectual disability, which likely predates his arrival” and that he “has a horrific developmental history and multiple sources of vulnerability”.
(b) Relevant parts of the Assistant Minister’s statement of reasons
16 Presumably, in accordance with the normal practice, the Assistant Minister was provided by the Department with a brief of materials to guide his decision-making. A copy of the brief was not, however, included in the appeal book (see Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [19] per Mortimer J, with whom Moshinsky J agreed), and no reference is made to it by the primary judge. The appeal book did contain a single page document headed “Attachment 1”, which presumably is an attachment to the departmental brief. It is headed “REVOCATION UNDER s 501CA OF THE MIGRATION ACT 1958 – DECISION BY THE ASSISTANT MINISTER FOR HOME AFFAIRS”. This single page document commenced with the following statement and instruction:
I have considered all relevant matters including an assessment of the character test as defined by s501 of the Migration Act 1958 (the Act), and all evidence before me provided by, or on behalf of, or in relation to Mr Muhumed Hassan OMAR in connection with the possible revocation under s 501CA(4) of the Act, of the original decision under s 501(3A) of the Act to mandatorily cancel Mr OMAR's Class BC Subclass 100 Partner (Migrant) visa.
(Please circle the option you select)
17 Three options were provided for the Assistant Minister to choose from. The first two were described as “Revocation outcomes”, while the third, which was circled by the Assistant Minister, was described as the “Non-revocation outcome”. It stated:
(c) Mr OMAR has made representations about revocation of the original decision in accordance with the invitation and I am not satisfied that Mr OMAR passes the character test (as defined by s501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in s501CA(4) of the Act to revoke the original decision is not enlivened and Mr OMAR's Class BC Subclass 100 Partner (Migrant) visa remains cancelled. My reasons for this decision are set out in the attached Statement of Reasons.
18 The document was signed by the Assistant Minister on 27 February 2018. It was accompanied by a 13 page statement of reasons, also signed and dated by the Assistant Minister on that day (without any alteration), together with detailed attachments, including copies of the various representations made on behalf of the respondent and the documentary material provided in support of those representations.
19 It is desirable to set out those parts of the Assistant Minister’s statement of reasons which address the respondent’s representations and documents provided by him concerning the risk he said he faced of serious harm in Somalia because of his serious mental illness and intellectual disability.
20 Paragraph 12 states:
12. In the representations/documents submitted by or on his behalf, Mr OMAR has articulated reasons why the original decision should be revoked, which include:
• If returned to Somalia, he will be subjected to cruel, inhumane and degrading treatment due to his mental illness
• the mentally ill are usually subjected to violations of their basic human rights and denial of civil, political, economic, social and cultural rights within mental health facilities and the community
• he would be exposed to the risk of deficient treatment in Somalia
• he may be seriously harmed based on his ethnicity, imputed political opinion, disability and impairments
• he has been diagnosed with mental health issues, paranoid schizophrenia and an intellectual disability
• he has been absent from Somalia since age eight and he has no social or family supports and an impaired cognitive capacity that would hinder forming networks himself
• he will be disadvantaged in finding accommodation, basic income and other necessities
• his offences were at the lower end of seriousness in their respective categories and his criminal capacity is reduced due to his state of psychosis and intoxication at the time of offending
• his current compliance with his medication, stable mental health and efforts to address his rehabilitation reduces his risk profile as acceptable
• he is in a restricted and isolated environment which is likely to compromise his mental stability and he faces the prospect of remaining in detention for a lengthy period if he lodges for (sic) a Protection visa. In the event the Protection visa is refused and he cannot be returned to Somalia, he faces indefinite detention.
…
21 Under the heading “International non-refoulement obligations”, paragraphs 19 to 21 stated:
19. As part of his representations or those made on his behalf seeking revocation of the original decision to cancel his visa, Mr OMAR submits that he will face harm if returned to Somalia being:
• persons with mental illness in Somalia are subjected to systemic and severe discrimination, amounting to cruel, inhumane and degrading treatment.
• the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (United Nations Convention against Torture) report states that the mentally ill are generally chained and imprisoned. Additionally, violations of basic human rights and freedom and denial of civil, political economic, social and cultural rights to those suffering from mental health disorders are a common occurrence within the mental health facilities and in the community.
• forcibly returning Mr OMAR to Somalia would expose him to the risk of deficient treatment.
• after leaving Somalia at a very young age and the absence of family members in Somalia, there is a real and substantial basis for Mr OMAR to believe he may be seriously harmed based on ethnicity, imputed political opinion, disability and impairments or an accumulation of these grounds
• the fragility of his mental state and that he is held in a ‘… restricted and isolated environment which is likely to compromise his mental stability. He faces the prospect of remaining in detention for a lengthy period while his visa status is determined and if a protection visa was refused and his return to his country of origin be unavailable, he faces the very real prospect of being indefinitely detained’
• there is no functioning national health system and access to healthcare services are severely limited
• DFAT concludes that refugees in need of psychological and mental health support cannot be returned to Somalia.
20. I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s. 499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.
21. Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr OMAR for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.
…
22 Under the heading “EXTENT OF IMPEDIMENTS IF REMOVED”, paragraphs 31 to 37 stated:
31. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr OMAR will face if removed from Australia to his home country of Somalia in establishing himself and maintaining basic living standards.
32. I note that Mr OMAR has a confirmed diagnosis of schizophrenia and has been assessed to have an intellectual disability with a cognitive functioning of intelligence in the extremely low range.
33. I take into consideration the submission provided on behalf of Mr OMAR which states that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, arguably amounting to cruel, inhumane and degrading treatment. Furthermore, it is stated that many Somalian nationals with mental illness are contained with chains and this is a locally accepted treatment in mental health facilities as it is seen as alternative medication.
34. I note the submissions include that returning Mr OMAR to Somalia would offend Australia’s obligations under the Convention on the Rights of Persons with Disabilities.
35. I acknowledge that Mr OMAR’s medication has predominantly been administered through a monthly depot injection. I further acknowledge the submission which states that it is widely perceived that no governmental or institutional infrastructure exists in Somalia which is capable of supporting the development or expansion of mental health care. Additionally, the hospitals do not purchase the drugs and they are usually provided on an irregular basis by World Health Organisation (WHO) and or private donations. I find that Mr OMAR’s return to Somalia would compromise his access to required medication and appropriate medical treatment, care and support given his complex mental health issues.
36. I note that Mr OMAR has been absent from Somalia since the age of eight as he spent a period of six years in a refugee camp in Kenya before arriving in Australia. I accept that he has little memory of Somalia, no social or family supports and an impaired cognitive capacity that would not facilitate establishing such networks by himself. I find that this will impact his ability to access a basic income, accommodation and other necessities.
37. Taking into account all of the above considerations, I find that returning to Somalia 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, combined also with the absence of any support network and appropriate medical care or other support services in Somalia.
23 Under the heading “PROTECTING THE AUSTRALIAN COMMUNITY”, the Assistant Minister assessed the respondent’s criminal conduct and the risk he posed to the Australian community. It is unnecessary to set out all those paragraphs in full. It is sufficient to note that in paragraphs 51 and 52 the Assistant Minister made explicit findings that:
(a) the respondent’s sentences are a further indication of the seriousness of his offending and that he considered that the custodial sentences received by the respondent reflected the serious nature of his offending; and
(b) the respondent’s overall lengthy criminal history, which included repeated violence and other offending, is very serious.
24 Under the heading “Risk to the Australian community”, the Assistant Minister set out multiple matters which he said he had “noted”, “considered”, “recognised”, “acknowledged” or “taken into account”, as well as several explicit “findings”. The Assistant Minister’s ultimate conclusion on the risk Mr Omar posed to the Australian community are set out in paragraphs 85 to 90:
85. I have taken into account all of the noted considerations, including Mr OMAR’s background, intellectual disabilities, mental health conditions, medication issues and his history of continued substance abuse. I find that despite various rehabilitative efforts, family and other supports in place and multiple opportunities to refrain from substance abuse, Mr OMAR continued to engage in criminal conduct. I have also considered that Mr OMAR received a four year community corrections (sic) from the court in 2012, after professional assessments by Dr Coffey and Ms Lofthouse, as well as a noted ability to commit to obtaining needed assistance. Mr OMAR failed to seize this opportunity and continued to reoffend involving violence and other unlawful conduct.
86. I note that on 7 December 2016, Mr OMAR was involved in an incident, albeit described as ‘minor’, whilst in immigration detention where he was observed to punch another detainee. No complaint appears to have been made by the detainee assaulted, nor does any action appear to have been taken against Mr OMAR. The legal representative of Mr OMAR submits that no investigation was undertaken to ascertain the facts of the 2016 detention incident and such incident reports are a ‘very poor indicators’ of the likelihood of reoffending due to the lack of detail or context provided in the reports. Also that such incident does not point to the likelihood of incidents occurring in the community with rehabilitation supports available.
87. I have further noted the documents from International Health and Medical Services (IHMS) that show Mr OMAR was hearing “voices”, expressed the desire to self-harm and stated he was feeling paranoid, prior to the incident in immigration detention.
88. I nonetheless find the incident in detention is some cause for concern that Mr OMAR remains at risk of engaging in physical violence.
89. Mr OMAR’s prison sentence commenced on 19 November 2015, and he was released into immigration detention on 31 July 2016. Mr OMAR has not spent time in the community since being incarcerated and therefore I also find that his rehabilitative efforts have not been tested unsupervised in the community.
90. Overall, I find that there is an ongoing likelihood that Mr OMAR will reoffend. I consider that should Mr OMAR reoffend in a similar manner involving violence, it could result in physical and/or psychological harm to members of the Australian community.
25 It is desirable to set out in full paragraphs 91 to 98 of the statement of reasons, which record the Assistant Minister’s conclusions:
CONCLUSION
91. I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original mandatory cancellation decision (original decision) should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr OMAR.
92. I concluded Mr OMAR has made representations in accordance with the invitation.
93. I am not satisfied that Mr OMAR passes the character test (as defined by s501).
94. In considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr OMAR, some of which are violent in nature.
95. Further, I find that the Australian community could be exposed to harm should Mr OMAR reoffend in a similar fashion involving violence. I could not rule out the possibility of further offending by Mr OMAR.
96. I am aware that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr OMAR, than I otherwise would, because he has lived in Australia for most of his life.
97. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr OMAR represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. These include his lengthy residence and bonds, his claims of harm if returned to Somalia, his health including his psychiatric and neuropsychological conditions, his employment albeit limited and the hardship Mr OMAR and his family will endure in the event the original decision is not revoked.
98. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr OMAR's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr OMAR's Class BC Subclass 100 Partner (Migrant) visa remains cancelled.
The primary judgment summarised
26 The primary judge’s decision to set aside the Assistant Minister’s decision turned on the following three propositions (as identified by the Assistant Minister on the appeal):
(a) the respondent had made a submission of substance that he claimed to fear harm in Somalia on the basis of refugee convention grounds and that those claims would not be properly considered in any future protection visa application;
(b) referring to BCR16, non-refoulement obligations have a very different role in the exercise of a discretionary power such as that under s 501CA(4) and in a decision whether to grant a protection visa; and
(c) a decision-maker under s 501CA is not permitted to postpone consideration of non-refoulement obligations to a future protection visa application, but rather must consider all submissions of substance as to why there is “another reason” to revoke the cancellation decision.
27 The primary judge held that the Assistant Minister had failed to perform the statutory task required by s 501CA, by failing to consider the respondent’s representations relating to non-refoulement obligations.
28 It is unnecessary to expand upon these matters having regard to the determinative effect of issue (e). To understand that issue, however, it is necessary to set out [64] and [65] of her Honour’s reasons for judgment:
64. It is correct, as the Minister submits, that the Assistant Minister did examine risks of harm to the applicant if he had to return to Somalia. This also distinguishes the circumstances of this proceeding from the circumstances of BCR16, where this did not occur.
65. Harm was certainly put forward as “another reason” by the applicant in the submissions made by his representatives. The Assistant Minister considered in some detail the nature of the harm likely to be encountered by the applicant if he were to return to Somalia. The Assistant Minister accepted there would be harm, but found that in the exercise of the revocation discretion, other factors outweighed whatever harm the applicant might suffer in Somalia. The Assistant Minister appeared to accept at a factual level, and certainly did not reject, all the substantial factual contentions put on behalf of the applicant in submissions about the significant difficulties and likely harm he would experience in trying to exist in Somalia.
29 For reasons which will be developed shortly, we consider that the primary judge erred in finding in effect that the respondent’s representations concerning the risk of harm in Somalia arising from his mental illness and intellectual disability had been considered, in the proper legal sense, by the Assistant Minister.
Notice of appeal
30 The Assistant Minister raised four grounds of appeal, which may be summarised as follows:
(a) non-refoulement obligations are not mandatory relevant considerations under s 501CA, consequently decision-makers may lawfully postpone substantive consideration of those obligations if a person, such as the respondent here, has a right to apply for a protection visa;
(b) the differences between ss 501CA and 65 did not require the Assistant Minister to make a finding on non-refoulement at the s 501CA stage of decision-making;
(c) the distinction drawn by the primary judge between the existence and engagement of non-refoulement obligations was false and no such distinction existed in substance in the circumstances of this case; and
(d) the proposed course of decision-making did not expose the respondent to the possibility of indefinite detention as a necessary consequence.
Amended notice of contention
31 With the Court’s leave, the respondent filed an amended notice of contention dated 3 September 2019. It is sufficient to set out the part which relates to issue (e) as described above:
Grounds
1. The primary judge should have held that the Assistant Minister failed to consider all of the matters (including factual matters) which the respondent had represented would be (or would be part of) a “reason” for revoking the cancellation decision, including that:
(a) as a person with mental illness in Somalia, he would be exposed to certain conditions (including being chained and imprisoned, which in turn would also expose him to the risk of physical injury), regardless of whether the risk of his exposure to those conditions is such as to engage one or more non-refoulement obligations of Australia;
(b) as a person with multiple and complex health needs, the respondent could not be effectively cared for in Somalia where (in light of information from the Department of Foreign Affairs and Trade) “there is no functioning national health system and access to health care services is severely limited” and to where persons “in need of physiological and mental health support cannot be returned”;
(c) returning the respondent to Somalia would offend Australia’s obligations under the Convention on the Rights of Persons with Disabilities; and
(d) especially as a person who has spent time in the West, he faced a risk of suffering from violence in Somalia (including in light of information from the Department of Foreign Affairs and Trade).
…
Consideration and determination of issue (e)
32 It is desirable to set out the terms of ss 501CA(1), (3) and (4) before briefly summarising the relevant legal principles guiding the determination of issue (e), and then apply those principles to the facts and circumstances here.
(a) Sub-sections 501CA(1), (3) and (4)
33 These provisions were as follows:
Cancellation of visa – revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
…
(b) Some relevant legal principles summarised
34 In brief, the relevant legal principles which guide the determination of issue (e) are as follows.
(a) It is significant that the Assistant Minister is required by s 501G of the Act to give the person who is affected by his non-revocation decision a written notice that sets out the decision, specifies the provision under which the decision was made and sets out the reasons for the decision (see s 501G(1)(e)). The Assistant Minister’s obligation to set out the reasons for his decision is an important accountability mechanism, all the more so in circumstances where his decision is not reviewable under either Pt 5 or 7 of the Act (see 501CA(7)).
(b) The statement of reasons has to be read fairly and not with an eye keenly attuned to the detection of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259).
(c) Consistently with s 25D of the Acts Interpretation Act 1901 (Cth), the obligation to set out the reasons for the decision requires the Assistant Minister also to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. This serves further to enhance the Assistant Minister’s accountability for his statutory decision-making.
(d) If there is no reference in the statement of reasons to a particular matter which was clearly raised by the respondent in his representations, an inference might be drawn that the matter has not been considered by the Assistant Minister to be material (see, for example, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ with reference to the similarly worded provision in s 430 of the Act).
(e) The representations made on behalf of the respondent in response to the invitation under s 501CA(3) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described (see Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56] per Robertson J; Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 at [139] per Robertson, Moshinsky and Bromwich JJ; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561 at [70]-[72] per Colvin J and Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 at [41] per Besanko, Barker and Bromwich JJ).
(f) As Robertson J said (with Logan J agreeing) in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [185]-[186]:
… 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.
(g) The representations play a central role in the relevant statutory regime. The Minister’s 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 Minister’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 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 in the representations. 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. Of course, this does not mean that every matter raised in representations is itself a mandatory relevant consideration. As Colvin J said in Viane at [69]:
All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.
(h) 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 Minister 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).
(i) While it may have been open to the Assistant Minister here 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 Assistant Minister was nevertheless obliged to give meaningful consideration to the representations on this issue. Again, as Colvin J stated in Viane at [67]-[68] in the context of the Minister’s statutory task under s 501CA(4):
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.
35 There is a helpful discussion of what is meant by the obligation of a decision-maker to “consider” a matter in a judicial review context in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, which involved two judicial review cases which were heard together. Those cases involved claims that the Minister had failed to give proper, genuine and realistic consideration to the merits of the two cases where the Minister cancelled the two appellants’ visas under s 501(3) of the Act. The Minister is empowered under that provision to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in “the national interest”. The relevant discussion is at [29] to [62] per Griffiths, White and Bromwich JJ.
36 The key points to emerge from Carrascalao which are also relevant to the decision-making function under s 501CA(4) are as follows:
(a) The Court acknowledged the danger of using an expression such as “proper, genuine and realistic consideration” because, if taken out of context, it may encourage the Court to slide into an impermissible merits review (see the observations in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ);
(b) As is the case under s 501CA(4), there was no explicit statutory duty on the Minister to “consider” the merits of the two appellants’ cases in Carrascalao. The Full Court proceeded on the basis, however, that there was an implicit statutory duty to consider the merits of the two cases, which included a volume of material provided by the judicial review applicants concerning their individual circumstances.
(c) Notwithstanding the absence of any explicit statutory duty to “consider” the merits of the cases, the Full Court in Carrascalao found that helpful guidance was obtained from cases which had considered the meaning of the word “consider”, when used explicitly in a statutory context. One such case is Tickner v Chapman [1995] FCA 1726; 57 FCR 451. In that case there was an explicit statutory duty on the Minister under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to “consider” a report and any representations attached to it in determining whether or not to make a declaration which would have the effect of protecting a site which the Minister was satisfied had special significance for Aboriginals. Justice Burchett said the following at 476-477 concerning the Minister’s explicit statutory duty to consider a report and any representations attached to it (emphasis in original):
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: cf Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to “consider” a report, Laskin J, speaking for the Supreme Court of Canada, said: “Certainly, the board must have the report before it”: Walters v Essex (County) Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31, conceded that the Minister, in the circumstances of that case, was not obliged “to read for himself all the relevant papers”, and that it “would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department”, he also made it plain that the summary must “bring to his attention” all material facts “which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial”. That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.
The following observations of Kiefel J (as her Honour then was) in Tickner at 495 are particularly apposite (emphasis added):
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…
(d) For the reasons given above, 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 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).
(e) Each case necessarily turns on its own particular facts and circumstances as established by the evidence. The evidence in Carrascalao revealed that the Minister only had a short period of time to consider the detailed Departmental briefs placed before him and an inference was drawn that this limited time was insufficient for the Minister to discharge his obligation to consider, in the relevant legal sense, the merits of the two cases.
(f) The inference drawn in Carrascalao 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.
(g) As the Full Court emphasised in Carrascalao at [132], the successful ground of judicial review in those cases did not involve any assessment by the Court as to the merits of the Minister’s decisions, rather it related exclusively to the process surrounding those decisions. The same is the case here.
37 The Minister’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request is also consistent with the following 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):
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.
(Emphasis added).
38 In short, as the respondent’s counsel on the appeal (Mr Wood) put it, the Assistant Minister has to take responsibility for what he is doing. This responsibility has both a political and a legal dimension.
39 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).
40 That is particularly the case here where representations were clearly made on the respondent’s behalf on a significant matter, namely the risk of harm (and serious harm) if the respondent was returned to Somalia given his individual circumstances and the treatment of persons with mental illness in that country. It is 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 because of Somalia’s treatment of the mentally ill, which claim was supported by the WHO 2010 report. As Robertson J stated in DOB18 at [190] (with whom Logan J agreed), “the nature and content of submissions made to the Minister” in support of a revocation request under s 501CA(4) is relevant. There had to be an active intellectual engagement with the matters raised on the respondent’s behalf relating to the risk of harm.
41 The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error (see Viane at [28]-[30] per Rangiah J and at [67] per Colvin J and Ezegbe at [37] per Perram J).
42 Applying those principles to the particular circumstances here, we shall now explain why we respectfully consider that the primary judge was wrong to find at [64] and [65] that the Assistant Minister:
(a) “did examine risks of harm to the applicant if he had to return to Somalia”; and
(b) that he “accepted there would be harm, but found that in the exercise of the revocation discretion, other factors outweighed whatever harm the applicant might suffer in Somalia”; and
(c) that he “appeared to accept at a factual level, and certainly did not reject, all the substantial factual contentions put on behalf of the applicant in submissions about the significant difficulties and the likely harm he would experience in trying to exist in Somalia”.
43 In our view, these findings were erroneous, in the following circumstances.
(a) The Minister merely “noted” or said that he had taken into consideration or account some of the matters raised by the respondent on the subject of risk of harm in Somalia (see, for example, [32], [33], [34] and [36] of the statement of reasons). Paragraph 33 of the Assistant Minister’s statement of reasons is particularly revealing (it is set out in full at [22] above). Although the Assistant Minister records there that he has taken into consideration the submission made on behalf of the respondent “which states that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, arguably amounting to cruel, inhumane and degrading treatment”, the Assistant Minister makes no finding one way or the other as to whether he accepted that submission. Similarly, no explicit finding of fact is made by the Minister with regard to the separate statement described in [33] “that many Somalian nationals with mental illness are contained with chains and this is a locally accepted treatment in mental health facilities as it is seen as alternative medication”. These were significant and serious matters which had been raised on behalf of the respondent and which were supported by other material. The matters 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. Otherwise, he could not assess the veracity and gravity of the risks of harm put forward on the respondent’s behalf.
(b) The Assistant Minister’s failure to make findings, one way or the other, in respect of the respondent’s claim that the mentally ill are generally chained and imprisoned in Somalia is all the more stark when it is brought to mind that the Assistant Minister had, earlier in his statement of reasons, at [19], erroneously attributed that specific statement to the wrong source. As emphasised above, the respondent’s representations made it clear that the claim was supported by material in the 2010 WHO report and not a report on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as the Assistant Minister believed. This absence of specific attention to an important and relevant detail on a significant claim indicates a failure to engage in the active intellectual process required by law of the Assistant Minister.
(c) Specific findings are made by the Assistant Minister in respect of some matters raised on the respondent’s behalf. This serves to highlight the matters in respect of which, for no expressed reason, no specific finding is made. An example includes the explicit finding at the end of [35] (which is set out in full at [22] above) concerning access to medication and appropriate medical treatment, care and support given the respondent’s “complex mental health issues”. Similarly, at [37] the Assistant Minister made an explicit finding that returning the respondent to Somalia would cause him “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…” (emphasis added). With respect to the Assistant Minister, it is difficult to comprehend how a decision-maker who had in fact engaged in an active intellectual process with a significant claim that the respondent would be chained and imprisoned if returned to Somalia could be lumped together with other matters relating to the respondent’s complex health issues and medication requirements and be described as “significant difficulties”. Ultimately, the merits of the matter are properly the Assistant Minister’s domain and not that of a judicial review Court, but his assessment must flow from a proper engagement by him with the matters put forward by the respondent as to why he was at risk of harm if he were returned to Somalia as a person suffering severe mental illness.
(d) Although [37] of the Assistant Minister’s statement of reasons is prefaced by the phrase “Taking into account all of the above considerations”, that does not affect the substance of the position, namely that no explicit or, indeed, implicit findings of fact were made by the Assistant Minister on representations put forward in support of the respondent’s request for revocation which are merely noted or recorded at [32] to [34] of the Assistant Minister’s statement of reasons.
(e) Similarly, although the Assistant Minister acknowledges that representations have been made that returning the respondent to Somalia, where there was a likelihood that he would be chained or imprisoned, would offend Australia’s obligations under both the Convention of the Rights of Persons with Disabilities and under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, no explicit or implicit findings are made by the Assistant Minister in respect of those claims, presumably because the Assistant Minister took the view that those claims did not need to be assessed and determined at this point in time but could be addressed in a future decision-making process.
(f) Nor did the Assistant Minister make any findings one way or the other concerning the respondent’s reliance upon DFAT’s country information report dated 13 June 2017 which stated that, in 2015, the Federal Government of Somalia had announced that failed asylum seekers who were “in need of psychological and mental health support cannot be returned to Somalia at present”. This announcement clearly indicated that such support was simply not available in Somalia at that time, which highlighted the likelihood and gravity of the harm which the respondent would suffer if he were returned to Somalia.
(g) These deficiencies in the decision-making process are not overcome by broad statements such as those that are made at the commencement of [91] and [98] of the Assistant Minister’s statement of reasons (i.e. “I considered all relevant matters…” and “Having given full consideration to all of these matters”). The Assistant Minister’s obligation to engage meaningfully with significant representations which have been clearly expressed by the respondent on the risk of harm is not discharged by such generalised statements. That is particularly so in circumstances where the Assistant Minister’s purported consideration of these matters earlier in his statement of reasons is legally deficient and reveals a failure to engage in the requisite active intellectual process for the reasons we have explained.
44 We are left with the abiding impression that part, possibly a large part, of the reason why the Assistant Minister failed to engage fully and meaningfully with the respondent’s representations on this topic was because of the Assistant Minister’s belief that they could be deferred and dealt with at a later stage of the decision-making process, whether in the context of a protection visa application or the Minister’s consideration of the exercise of his various non-compellable powers under the Act. But to proceed in that fashion is to fail to recognise and give effect to the distinction identified by Robertson J in DOB18 at [185] (with whom Logan J agreed) (see [34(f)] above.
45 Consistently with Colvin J’s judgment in Viane at [75], we consider that the Assistant Minister’s failure to consider in the relevant legal sense significant matters raised clearly by the respondent in the representations is a failure to conform with the Act or, to put it another way, to carry out the relevant statutory function according to law. As Colvin J stated at [75]:
… The statutory requirement for the Minister to invite representations must lead to the conclusion that if representations are made as to significant matters then the Minister must consider whether to revoke the original cancellation and do so by considering the representations as to those matters. Jurisdictional error, in the sense relevant in the present case, consists of such a material breach of an express or implied condition of the valid exercise of a decision making power conferred by the Migration Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [23]-[26].
46 The Assistant Minister’s error is material and gives rise to jurisdictional error because there is a possibility that if the Assistant Minister had truly engaged in an active intellectual process with the significant matters put forward by the respondent on the likelihood of harm, he may have come to a different conclusion on the issue of revocation.
Conclusion
47 For these reasons we would dismiss the appeal, with costs.
