What does it mean for an administrative decision maker to ‘consider’ the case put before it?

It is axiomatic that an administrative decision maker must generally ‘consider’ the case put before it by a person whose interests are liable to be affected by its decision. As I noted in a previous post, this obligation can be considered to arise from the rules of procedural fairness, from the obligation to take into account mandatory considerations, or simply as part of the decision maker’s ‘irreducible jurisdictional task’. But what does it actually mean to ‘consider’ a party’s case? The recent judgment of a five-member Full Court of the Federal Court in Minister for Home Affairs v Omar addresses this question.

The facts

In Omar, the respondent was born in Somalia in 1986, a few years before the outbreak of civil war in that country. In 1994 (at the age of eight), he was recruited as a child soldier. Soon after this, his family fled to Kenya, where they lived in a refugee camp for six years. He immigrated to Australia in 2001 and lived with members of his extended family.

In addition to (and, presumably, in part because of) his traumatic childhood, the respondent suffered from paranoid schizophrenia and a severe intellectual disability. As a young man, he committed one or more criminal offences (the nature of which does not appear from the Court’s judgment) and was sentenced to a community correction order; he then breached that order and was sentenced to 12 months’ imprisonment. Because of this, the respondent’s visa was subject to mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth). The respondent then applied to the appellant Minister under s 501CA of the Act for revocation of the decision to cancel his visa, on the grounds that there was ‘another reason’ why his visa should not be cancelled (within the meaning of s 501CA(4)(b)(ii)).

A range of ‘other reasons’ for not cancelling his visa were relied on by the respondent. Most importantly, he submitted that the treatment of persons suffering from mental illness and intellectual disability in Somalia was appalling. In this regard, the respondent adduced credible evidence to the effect that there are essentially no facilities for the treatment of mental illness in Somalia and that, in both urban and rural areas of Somalia, persons suffering from mental illness and intellectual disability are routinely chained up and imprisoned (which inflicts both stigma and significant physical injuries).  In his reasons for decision, the appellant Minister listed the reasons why the respondent submitted his visa should not be cancelled. He then stated that he ‘had regard to the impediments’ the respondent would face if he were removed from Australia to Somalia, that he ‘took into account’ the respondent’s submissions, and that he ‘acknowledged’ that the respondent required monthly depot injections of anti-psychotic medication (his access to which would be ‘compromised’ if he were required to return to Somalia). Nevertheless, the appellant Minister declined to revoke the cancellation of the respondent’s visa.

Primary judgment

The primary judge held that while the appellant had generally considered the representations made by the respondent as to the ‘other reasons’ why the cancellation of his visa should be revoked, he had not considered the respondent’s representation to the effect that he was a person to whom Australia owed non-refoulement obligations under a range of international treaties. It was on this issue that the appellant appealed (and which prompted the appeal to be listed before a bench of five judges). The respondent then filed a notice of contention, in which he sought to uphold the primary judgment on the basis that the appellant Minister had not considered his representations as to the other reasons why his visa should not be cancelled (and that the primary judge had erred in finding that the Minister had considered them).

Judgment on appeal

The Full Court decided the matter solely on the basis of the respondent’s notice of contention. In this regard, the Full Court endorsed the view expressed by Colvin J in Viane v Minister for Immigration and Border Protection that if representations are made to the Minister under s 501CA, ‘then the Minister must consider whether to revoke the original cancellation and do so by considering the representations’. That is, as the Full Court put it, ‘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.’  The Full Court described the nature of the obligation to ‘consider’ representations made under s 501CA in the following terms:

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.

The Full Court then listed a series of important factual issues – including the question whether persons in Somalia who suffer from mental illness and intellectual disability are in fact routinely put in chains – on which the appellant had failed to make any findings at all. It followed from these failures that the appellant had fallen into jurisdictional error in the form of a ‘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’.

The Full Court’s judgment is an important reminder that ‘considering’ a matter – whether it is a mandatory consideration prescribed by a statutory provision or a ‘case’ or ‘claim’ that must be considered if a decision maker is to avoid constructively failing to exercise jurisdiction – is not simply a matter of unthinkingly reciting evidence, statutory provisions and caselaw. Rather, to meaningfully engage with a case (to ‘consider’ it ‘in the relevant legal sense’) requires a decision maker to address the evidence and submissions in the relevant statutory context and to make – or at least try to make – findings on any centrally important questions of fact. The reason for this is that in conferring a statutory power on a decision maker, the legislature is assumed to confer the power on the basis it will be exercised rationally following an application of an intellectual process that engages with, rather than simply recites, the evidence and submissions put to the decision maker. In the context of the ‘predictive exercise‘ that must be engaged in to determine whether a person will be at risk of persecution or significant harm if they are removed from Australia to another country (and is thus entitled to a protection visa), the same point was made by the High Court two decades ago in Minister for Immigration and Ethnic Affairs v Guo:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.

The Full Court’s judgment in Omar is a timely reminder to decision makers that fact finding is generally an indispensable part of rational decision making, regardless of the specific statutory context in which a decision falls to be made.