As this meme – posted by the Kenyan-American actor/tangerine-skinned space pirate Lupita Nyongo’o – illustrates, Africa is a vast continent that comprises 54 countries. Within those 54 countries, there are approximately 1.3 billion people, who speak somewhere in the vicinity of two thousand different languages. Two of Africa’s 54 distinct nations are the Republic of the Sudan and the Republic of South Sudan. While those two countries have some things in common, they have been recognised by the international community as distinct nations since 2011 (nine years ago – when flash mobs were a thing, the television series New Girl had just premiered, the President of the United States could be counted on not to refer to the nations of Africa, Asia and Latin America as ‘shithole countries‘, and you could still go outside; truly we lived in a Golden Age). They are, to put it simply, different places.
What do these easily googleable facts have to do with Australian administrative law? Well, the distinction between Sudan and South Sudan – and the basic geographical fact that the continent of Africa is not some monolithic ‘country’ – lies at the heart of the recent judgment of the Full Court of the Federal Court in DQM18 v Minister for Home Affairs. In that case, the majority (Bromberg and Mortimer JJ) held that the respondent Assistant Minister could not properly consider the appellant’s case without deciding (or at least attempting to decide) whether the appellant was at risk of being deported from Australia to Sudan or to South Sudan. The majority’s judgment also contains some important observations about the probative value of assumptions made by Australian decision makers about conditions in countries that may differ vastly from Australia, and about the doctrine of materiality.
The appellant in DQM18 was born in 1989, during a period of civil war in Sudan (which then encompassed what is now South Sudan). However, it was not clear whether he was born in the city of Khartoum (in what is now Sudan), or in some other unidentified city in what is now South Sudan. The appellant’s father disappeared (and is presumed to have died) in 1999, after which the appellant and his remaining family fled to Egypt. In 2005, when the appellant was 16, the appellant and some members of his family immigrated to Australia as the holders of ‘Class XB Subclass 200 Refugee (Permanent)’ visas. At that time, two of the appellant’s sisters were housed in a refugee camp in Sudan (not South Sudan), another sister had been killed in the ongoing Sudanese civil war, and a fourth sister lived in Egypt with the child of the appellant’s deceased sister. While the appellant had never formally been diagnosed with Post-traumatic Stress Disorder, he had clearly experienced severe psychological trauma in his early life, and had suffered adverse mental health consequences from this.
In 2015, the appellant was convicted of recklessly causing injury and was sentenced to 15 months’ imprisonment; in March of 2016, he was convicted of common assault and breaching an intervention order, and was sentenced to eight weeks’ imprisonment. As a result of the appellant’s criminal record and incarceration, the Assistant Minister cancelled the appellant’s visa under s 501CA(3A) of the Migration Act 1958 (Cth).
The appellant then sought to have the cancellation of his visa revoked under s 501CA of the Act, on the basis that there was ‘another reason’ why the decision to cancel his visa should be revoked. The ‘other reasons’ identified by the appellant were that if he were required to return either to Sudan or to South Sudan, he would have no family support, would be at significant risk of physical and/or psychological harm, would face significant economic hardship, and would be unable to obtain appropriate treatment for his mental health issues. He also submitted that there was a real risk that he would never be able to be safely returned to Sudan or South Sudan, and that as a consequence there was a risk that if his visa remained cancelled, he would be detained indefinitely in Australia. As can be seen from this summary, the appellant’s representations to the Assistant Minister – which consisted partly of handwritten documents drafted by the appellant himself and partly of documents drafted by a lawyer – were somewhat ambiguous, in that they did not state clearly whether the appellant believed he was at risk of being returned to Sudan or South Sudan. No doubt this reflected the chaotic events of the appellant’s early life and the fact that South Sudan had not emerged as an independent nation until long after he had fled East Africa.
The Assistant Minister’s decision
In declining to revoke the cancellation of the appellant’s visa, the Assistant Minister discussed the possibility that if the the appellant’s visa were cancelled, he would be returned to ‘Sudan or South Sudan’; he made no attempt to determine which of the two countries the appellant was likely to be removed to. The Assistant Minister accepted that the appellant ‘would face hardship arising from his concerns for his safety, separation from his family, refugee trauma, the availability of social, medical, economic support and survival in a country that may experience instability and violence, were he to return to Sudan or South Sudan’, but found that ‘the presence of his sisters in Sudan [again, not South Sudan] may provide some support’ for the appellant. With respect to the appellant’s physical safety, mental health and capacity to earn a living, the Assistant Minister stated that he had taken into consideration:
- ‘[the appellant’s] concerns for his safety if he was returned to Sudan’;
- ‘the notion that [the appellant] has no reasonable prospect of integrating back into a community in which he has not lived in since he was a child and his capacity to find employment and sustain himself would be minimal’; and
- the fact that ‘[the appellant] would face hardship arising from his concerns for his safety, separation from his family, refugee trauma, the availability of social, medical, economic support and survival in a country that may experience instability and violence, were he to return to Sudan or South Sudan.’
Nevertheless, the Assistant Minister concluded that the appellant represented an unacceptable risk to the Australian community, and that this outweighed the factors that supported revoking the decision to cancel his visa. Finally, on the question whether cancelling his visa would result in the appellant’s being indefinitely detained in Australia, the Assistant Minister made no findings of fact at all.
The judgments in the Full Court
The majority identified four ways in which the Minster had failed to engage in any meaningful way with the appellant’s case, and had thus constructively failed to exercise the jurisdiction conferred upon him by s 501CA of the Act:
- First, the Assistant Minister’s finding that that appellant might receive some support from his sisters lacked any rational basis, and was ‘nothing more than speculation, without any probative basis, especially given the obviously dire circumstances of the appellant’s sisters and absence of any finding by the Assistant Assistant Minister about which country the appellant would be returned to.’ This speculation was the product of ‘assumptions – about the relationships between the appellant and those two sisters, about the conditions in which the sisters live, and in which the appellant might live, about other dynamics in those two sisters’ lives, and so forth’ that could not be made in the absence of evidence about the sisters’ lives and, more broadly, about conditions in Sudan (where the sisters lived, not South Sudan, where they did not live). By basing his consideration of this issue on speculation and unfounded assumptions, the Assistant Minister had failed to ‘engage with what the appellant was putting to him about why it was not safe for him to return to Sudan or South Sudan.’
- Second, by eliding the distinction between Sudan and South Sudan, the Assistant Minister had failed to make findings on a key question of fact, without which the appellant’s case could not properly be considered. That is, the majority held that it is ‘simply not possible to have any active intellectual engagement with what is likely to happen to a person on return if the country to which the person is to be returned is not identified.’
- Third, the Assistant Minister had not truly addressed the question whether the appellant’s physical safety would be threatened if he were required to leave Australia. In this regard, the appellant’s claim required the Assistant Minister ‘first, to determine where the appellant would be sent; second, to evaluate the information available to him about the circumstances in that place of return; and third, to determine what, as a matter of fact, those circumstances meant for the appellant on his return. Only once those findings were made could this matter be weighed by the Assistant Minister in his determination about how to exercise the power in s 501CA(4).’ The Assistant Minister had failed to make any of the findings required to deal with this issue.
- Fourth, the Assistant Minister had failed to make any findings at all as to whether the appellant was at risk of indefinite detention.
Finally, in response to the Assistant Minister’s submission that none of these errors could realistically have affected the outcome of the appellant’s case, Bromberg and Mortimer JJ made the following observations about the principle of materiality:
[T]he exercise to be undertaken by the reviewing court is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision. Otherwise, where there are emphatic adverse findings in a particular decision, then even egregious breaches of an “inviolable” limitation (eg obvious misconstruction of a statute; obvious denial of procedural fairness) would be held not to be an error of a jurisdictional kind because the subjective state of mind of the particular decision-maker, imputed by the Court on the basis of the rest of the decision-maker’s reasons, would prevail in the materiality analysis. The proposition is not that a decision-maker is free to contravene an inviolable limitation on her or his exercise of power so long as she or he makes her or his findings so emphatic that a reviewing court can say that no matter what the error, the decision-maker in question would not have changed her or his mind. That would effectively immunise decisions from scrutiny on judicial review. We do not consider that was the intent of the majority’s statement of principle in SZMTA, for that would indeed overthrow a considerable amount of the jurisprudence of that Court itself.
Justice Snaden agreed that the Assistant Minister had failed to engage with the appellant’s ‘indefinite detention’ claim and said nothing about the question of materiality. However, with respect to the first ground of error identified by the majority, his Honour considered that the Assistant Minister’s finding amounted to no more than an observation that the appellant’s sisters might or might not be willing and able to provide him with some support. On the second ground, Snaden J considered that there was ‘no reason why the Assistant Minister should be thought to have laboured under some obligation to resolve the apparent confusion about the country to which the appellant might be returned in the absence of revocation’, and that it was sufficient for the Assistant Minister to conclude that ‘the outcome—namely, that there was not “another reason” warranting revocation—was the same regardless of which of the two alternative destinations was correct.’
What does this judgment mean?
Australia’s federal judicial system hands down so many migration-related judgments that it is difficult to identify trends in federal administrative law jurisprudence. Still, DQM18 seems to me to form part of a growing list of judgments (including this one and this one) in which the Federal Court has stressed that a statutory decision making power will generally carry with it an implied obligation to engage in a fact-finding process that displays some real intellectual rigour. While the precise requirements of this obligation cannot be stated exhaustively, it will not be met by a fact-finding process that seeks to avoid difficult factual questions – such as which of two neighbouring countries a person is likely to be returned to if they are deported from Australia – by treating them as inconsequential, or that waves them away with unfounded assumptions.
Of particular interest is the majority’s treatment of the making of unsupported assumptions and generalisations as something that – in addition to giving rise to a discrete ground of review – may evince a failure by the decision maker to truly grapple with the issues involved in a decision. This reflects the fact that in the absence of appropriate findings, an administrative decision maker will have no factual framework to which it can apply a statutory test or legal principle, and will thus have no rational basis for making a decision. It is also notable that the majority was alive to the fact that an assumption about human behaviour may be culturally biased and may lack any rational basis where it is sought to apply it to a context that falls well outside the experiences of the person making the assumption. While the majority did not refer to the administrative law jurisprudence of any courts outside Australia, this approach mirrors a longstanding line of authority in which the Federal Court of Canada has emphasised that, in the context of migration decisions, conclusions about the plausibility of an account of events should be drawn with great care (and may be characterised as legally irrational if they are not). Thus that court has stated that:
A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu.
This approach reflects the fact that, while a decision maker’s life experience can provide useful guidance in fact finding, it has significant limitations when it comes to making rational generalisations about how other people are likely to behave in a particular context.
Finally, the majority’s judgment emphasises that a decision maker cannot generally defend the validity of its decision on materiality grounds by submitting that it would have made the same decision regardless of whether it had properly considered the issues before it. This is plainly right – it would be absurd if a decision maker could seek to uphold the validity of a decision by arguing that it had approached the decision with a mindset that was (at the very least) tantamount to bias by prejudgment.