DQM18 v Minister for Home Affairs - [2020] FCAFC 110

FEDERAL COURT OF AUSTRALIA
DQM18 v Minister for Home Affairs [2020] FCAFC 110

Appeal from: DQM18 v Minister for Home Affairs [2019] FCA 852

File number: VID 727 of 2019

Judges: BROMBERG, MORTIMER AND SNADEN JJ

Date of judgment: 25 June 2020

Catchwords: MIGRATION ACT – s 501CA(4) Migration Act 1958 (Cth) – application for judicial review – where Assistant Minister determined not to revoke cancellation of appellant’s visa – whether the Assistant Minister failed to perform the requisite statutory task by (i) giving meaningful consideration to various representations made by the appellant; (ii) by failing to determine the country to which the appellant would be returned; and (iii) by failing to consider that indefinite detention would be a legal consequence of the non-revocation of the cancellation of the appellant’s visa – whether any error was material to the exercise of power and therefore a jurisdictional error – decision of Assistant Minister set aside.

Legislation:
Acts Interpretation Act 1901 (Cth) s 25D

Migration Act 1958 (Cth) ss 499, 501, 501CA

Federal Court Rules 2011 (Cth) rr 4.12, 4.19(3)

Cases cited:
Anees v Minister for Immigration and Border Protection [2020] FCAFC 28

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

AXT19 v Minister for Home Affairs [2020] FCAFC 32

AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456

BSE17 v Minister for Home Affairs [2018] FCA 1926

CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Dang v Administrative Appeals Tribunal [2019] FCAFC 220

DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91

DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; 268 FCR 64

DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636

DQM18 v Minister for Home Affairs [2019] FCA 852

EVK18 v Minister for Home Affairs [2020] FCAFC 49

GBV18 v Minister for Home Affairs [2020] FCAFC 17

Guclukol v Minister for Home Affairs [2020] FCA 61

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423

Hernandez v Minister for Home Affairs [2020] FCA 415

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320

Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523

Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201

Navoto v Minister for Home Affairs [2019] FCAFC 135

Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102

Sowa v Minister for Home Affairs [2019] FCAFC 111

Tickner v Chapman [1995] FCA 1726; 57 FCR 451

Tsvetnenko v United States of America [2019] FCAFC 74; 367 ALR 465

Uelese v Minister for Immigration and Border Protection and Another [2016] FCA 348; 248 FCR 296

Date of hearing: 13 November 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 170

Counsel for the Appellant: Mr G Gilbert SC with Ms K Grinberg (Pro Bono)

Counsel for the Respondent: Mr G Hill

Solicitor for the Respondent: Australian Government Solicitor

Table of Corrections

7 July 2020 In paragraph 113, second sentence, “is” has been added after the words “A reviewing court”.

ORDERS

VID 727 of 2019

BETWEEN:
DQM18

Appellant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

JUDGES:

BROMBERG, MORTIMER AND SNADEN JJ

DATE OF ORDER:

25 JUNE 2020

THE COURT ORDERS THAT:
1.The appellant have leave to rely on the amended notice of appeal filed on 4 November 2019.
2.The appeal be allowed with costs, such costs to be payable directly to counsel for the appellant in accordance with r 4.19(3) of the Federal Court Rules 2011 (Cth).
3.The orders made by this Court on 7 June 2019 are set aside, and in lieu thereof:
(a)An order in the nature of certiorari be issued to the Assistant Minister for Home Affairs quashing the decision made on 3 July 2018 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made on 4 May 2016 under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s Class XB Subclass 200 Refugee (Permanent) visa;
(b)The matter be remitted to the Minister for the making of a decision under s 501(CA)(4) according to law;
(c)The respondent pay the appellant’s costs of the application for judicial review.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BROMBERG AND MORTIMER JJ:

This is an appeal from orders made by a single judge of this Court, dismissing the appellant’s application for review of a decision by the Assistant Minister for Home Affairs, under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). By that decision, the Assistant Minister refused to revoke the mandatory cancellation of the appellant’s permanent visa.
For the reasons set out below, the appeal should be allowed.
Factual background
The factual background is not in dispute.
The appellant was born in 1989. There is conflicting evidence about where he was born: whether in what is now South Sudan, or in Khartoum, which is in Sudan. He is ethnically South Sudanese. The appellant’s family was, as we describe below, caught up in the tragedies of the Sudanese Civil War. In 2011 South Sudan became an independent nation. The questions whether he was a national of Sudan or South Sudan, and whether he would be returned to Sudan or to South Sudan if his visa cancellation was not revoked, were matters of some uncertainty in the materials, and also in the Assistant Minister’s decision.
The Assistant Minister accepted that:
(1)as a child, the appellant witnessed numerous war atrocities in Sudan;
(2)his father disappeared in the Sudanese Civil War around 1999, presumed dead;
(3)his father’s disappearance and presumed death has had a traumatic effect on the appellant’s family;
(4)the appellant and his family fled to Egypt, where they experienced violence from the authorities and local people; and
(5)the appellant’s early life was characterised by violence and conflict.
In 2005, when the appellant was 16 years old, the appellant and some of his family migrated to Australia as the holders of Class XB Subclass 200 Refugee (Permanent) visas. In submissions to the Assistant Minister, the appellant’s legal representative (Victoria Legal Aid) informed the Assistant Minister that two of the appellant’s sisters remained in a refugee camp in Sudan; that another sister was killed in the civil war; and that another sister remained in Egypt and was bringing up the son of the appellant’s deceased sister. This is what the submissions stated about the appellant’s two sisters who remain in Sudan, a matter of relevance to the appellant’s challenge to the Assistant Minister’s decision:
Two of [the appellant’s] sisters (aged 33 and 30) live in [redacted] Refugee Camp in Khartoum. One sister has an 11-year-old daughter out of wedlock with no male support. According to their mother [redacted], these sisters are in unsafe and unsettled accommodation and are regularly encouraged by the authorities to return back to South Sudan, where they ethnically originate from. [The appellant’s mother] has reported that since South Sudan became independent in 2011 there has been less freedom of movement and South Sudanese are encouraged to return despite the current lack of safety and security.
The appellant has a long history of offending since he arrived in Australia, commencing with offences which brought him before the Children’s Court. The offending which gave him a “substantial criminal record” within s 501(3A)(a)(i) (read with ss 501(6)(a) and (7)(c)), involved violent conduct against his former partner. For that conduct, on 22 September 2015 he was convicted in the Magistrates’ Court of Victoria of recklessly causing injury and was sentenced to 15 months of imprisonment. At the time his visa was cancelled, on 4 May 2016, the appellant was serving a full-time sentence of imprisonment in a custodial institution for an offence against State law within s 501(3A)(b), having been sentenced in March 2016 to 8 weeks’ imprisonment for common assault and breach of family violence intervention order.
On 9 May 2016, the appellant requested the exercise of the power in s 501CA(4) of the Act to revoke the visa cancellation. On 22 December 2016, Victoria Legal Aid made representations on the appellant’s behalf as to why the cancellation decision should be revoked. For the disposition of the appeal, it is not necessary to set out all of the content of those representations, nor the topics they covered.
On 3 May 2017 the Assistant Minister decided not to revoke the visa cancellation. The appellant sought judicial review of that decision, and on 4 December 2017 the Assistant Minister’s decision was set aside by consent, and the question of revocation was remitted for reconsideration according to law.
By this stage, the appellant was no longer represented by Victoria Legal Aid, and was self-represented. By a letter dated 23 February 2018, he was invited to provide further information and to respond to new information regarding his alleged conduct, in the intervening period, in immigration detention. The appellant was told that the information before the Assistant Minister in the first decision would be before the decision-maker for reconsideration.
In late February 2018 and again in March 2018, the appellant provided some responses to the Assistant Minister, in particular about what had happened to him in immigration detention which had led to the conduct which the Assistant Minister had indicated might raise concerns. It is fair to say the evidence reveals there was a long and complicated factual history around what was happening to the appellant in immigration detention. The appellant also participated in a phone interview on 7 May 2018. The evidence does not reveal who conducted the phone interview with the appellant.
On 3 July 2018, the Assistant Minister decided, for the second time, not to revoke the mandatory cancellation decision. Although he was not bound to do so, in substance, the Assistant Minister’s reasons follow the form and content of what was then Direction 65, which provides policy guidance for decision-makers on the approach to be taken in considering whether or not to exercise the power under s 504CA(4). While there are references to the appellant’s phone interview, and what he said about why he engaged in certain conduct in immigration detention, the preponderance of the material to which the Assistant Minister refers in his July 2018 reasons is material which was submitted to him on behalf of the appellant by Victoria Legal Aid in December 2016.
Where necessary to resolve the grounds of appeal, we refer in more detail to the Assistant Minister’s reasons below.
By an application filed on 13 July 2018, the appellant sought judicial review in this Court of the Assistant Minister’s refusal to revoke the visa cancellation. The grounds of review were amended with leave in May 2019. On 7 June 2019, the primary judge dismissed the amended application.
The appellant appealed from the primary judge’s orders on 5 July 2019. He was represented by senior and junior counsel, acting under the Court’s pro bono referral scheme. Counsel sought leave on behalf of the appellant to rely on an amended notice of appeal dated 4 November 2019. The Court indicated it would grant leave. Again, where necessary for the resolution of the appeal, we refer to the primary judge’s reasons below.
The amended notice of appeal
In his amended notice of appeal, the appellant relied on a single ground of appeal with six “particulars”:
1.The Court below erred in not finding that the decision of the Respondent was affected by jurisdictional error. The Respondent failed to consider a representation of the appellant. The Respondent failed to carry out his statutory function according to law by failing to consider, in the relevant legal sense, representations made by the appellant under s 501CA(4) of the Migration Act, in support of his request for revocation of the mandatory cancellation of his visa.
Particulars
i.The Assistant Minister failed to consider the appellant’s representation that he would face difficulties in Sudan or South Sudan due to a lack of familial support in those countries. Alternatively, there was no basis for the Assistant Minister’s finding in [51] of his decision that the appellant’s two sisters in Sudan may provide some support for him.
ii.The Assistant Minister failed to determine whether the relevant country of reference to which the appellant would be returned was Sudan or South Sudan, and failed to consider whether different considerations applied to each country.
iii.The appellant made a representation that it would not be safe for him to return to Sudan, or South Sudan. The Assistant Minister did not consider or make any findings as to whether it was in fact unsafe for the appellant to return to Sudan, or South Sudan, or in relation to the levels of safety, instability and violence in Sudan or South Sudan.
iv.The appellant stated that, if returned to Sudan or South Sudan, he would be unable to find employment and sustain himself in a country that was currently experiencing instability and violence. The Assistant Minister failed to consider this representation and make findings regarding the appellant’s ability to find employment and sustain himself.
v.The Assistant Minister failed to consider the appellant’s representation that, if returned to Sudan or South Sudan, there was a real prospect that his mental and physical health issues would go untreated, and deteriorate.
vi.The Assistant Minister failed to consider the submission made by the appellant that he risked being indefinitely detained if the cancellation of his visa was not revoked.
The primary judge’s reasons
Before the primary judge, the appellant claimed that the Assistant Minister’s reasons were legally unreasonable or irrational in the way they approached the likely hardship the appellant would face on return to Sudan or South Sudan. On this, the primary judge found at [34]-[36]:
The Minister submits that there is nothing illogical or irrational about the finding that the presence of the applicant’s two sisters in South Sudan “may provide some support” for the applicant. He says that the statement is nothing more than a recognition that the presence of the applicant’s two sisters in Sudan may provide some support to the applicant, and that it must be read in the context of the acknowledgement in the same paragraph that the applicant “lack[s] family support in Sudan or South Sudan” and that he would experience “considerable hardship” on his return there. To say, in light of that, that his sisters “may provide some support” is, the Minister submits, to say no more than that the presence of two sisters in Sudan is an advantage (however slight) that is not available to a person who has no family in Sudan.
If I may say so, with great respect to counsel for the applicant, it seems to me that his submission in respect of ground 1 reads too much into a single sentence in the reasons, which, leaving that sentence aside, unambiguously recognise the real hardship that the applicant would face were he to return to Sudan or South Sudan – because he has not lived there since he was a child, he has no reasonable prospect of integrating back into a community where he would lack social, medical, economic and familial support, and where there is a real chance that his mental and physical issues would go untreated, among other reasons.
In my view, there is nothing illogical or irrational, as those terms are used in the cases, in the notion that, all that hardship conceded, the presence of the two sisters in Sudan may provide some support to him, regardless of their own regrettably dire living conditions there. It is not nearly enough that minds may differ about such things. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions. See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137, [148] (Robertson J), cited with approval by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at 221, [52] and by the Full Court in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517, [60] (McKerracher, Griffiths and Rangiah JJ). In my view, the innocuous enough statement that the presence of the applicant’s sisters in Sudan may provide some support to him cannot be characterised as illogical or irrational reasoning in the sense described in those cases.
His Honour also determined that if there had been any error it would have been immaterial: see [37]-[38] of his Honour’s reasons.
The second ground of review before the primary judge concerned whether the Assistant Minister had failed properly to consider representations made on behalf of the applicant that attempted to explain incidents of violence during his time in immigration detention. That ground was rejected and is not pursued on appeal as one of the particulars to the amended ground of appeal.
Accordingly, if appellable error is to be identified in the primary judge’s reasoning, it will be for one of two alternative reasons. First, by reference to the first ground before the primary judge, which reflects one of the particulars in the amended ground of appeal before this Court. Alternatively, appellable error will be established not because of the details of his Honour’s reasoning but rather because his Honour did not accept that the Assistant Minister’s decision was affected by jurisdictional error, notwithstanding the remaining arguments now put were not put to his Honour.
RESOLUTION
The debate between the parties on the appeal is, in substance, about the nature and extent of the Assistant Minister’s duty to consider the representations made to him by or on behalf of the appellant, in the context of the statutory task imposed on him by s 501CA(4). Each of the “particulars” set out in the amended ground of appeal identifies a separate representation or matter which the appellant contends the Assistant Minister failed to consider in performing the statutory task imposed by s 501CA(4).
The appellant relies on the approach taken by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, and contends that, in the present case, the Assistant Minister’s reasons did not grapple with the circumstances that would face the appellant on return to Sudan, or South Sudan, in the way his statutory task required him to do. The Minister, on the other hand, contends the Assistant Minister sufficiently addressed all of the representations made.
The statutory task, and what it involves

The Assistant Minister’s statutory task under s 501CA(4) is evident from the terms of the statute itself and was set out by the Full Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [63] and Omar at [34(g) and (h)]: the task is to decide whether there is “another reason” to revoke the cancellation of a person’s visa. The state of satisfaction required by s 501CA(4)(b)(ii) cannot be lawfully formed without consideration of the representations which have been invited: see Omar at [34(e)-(i)] and the authorities there referred to.
The adjective “another” is used in contradistinction to the first reason for revocation which is given in s 501CA(4)(b)(i) – that a person passes the character test. In substance, the situation contemplated by sub-paragraph (i) is only likely to occur if there has been a significant mistake in the advice to the Assistant Minister about the sentence imposed on a person. Absent such an exceptional situation, sub-paragraph (ii) will be applicable and the Assistant Minister must decide if there is some other justification for the revocation of the visa cancellation. Implicit in this task, of course, is consideration of why a person should be able to remain lawfully in the Australian community on the visa previously held, rather than being removed against her or his will to her or his country of nationality.
In performing the statutory task, the Assistant Minister was “obliged to give meaningful consideration to the representations” made to him about what other reasons there were for revoking the appellant’s visa cancellation: Omar at [34(i)] and [37]. That duty is implicit rather than explicit in the statutory scheme: Omar at [36(d)]. It involves an “active intellectual process” by the decision-maker: Omar at [36(d)], referring with approval to another Full Court decision in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89].
In Omar, at [36(c)], the Full Court emphasised a passage from Kiefel J’s reasons (as her Honour then was) in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 495, which is worthwhile extracting again here:
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) [of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)] 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.
As the Full Court in both Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 and Omar recognised, use of language by a Minister to the effect that she or he has “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to her or his decision is not conclusive. Nor are standard phrases such as that a Minister has “given full consideration to all of the information” before her or him. Other recent Full Court decisions have endorsed this approach: see GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30]-[32]; EVK18 v Minister for Home Affairs [2020] FCAFC 49 at [10]-[15] and AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [47]. In the latter case, the Full Court (at [56]) emphasised the limits of the supervisory task:
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.
A supervising court examines the reasons as they are given and expressed, not with an eye keenly attuned to error, but recognising that the Assistant Minister is obliged to set out the findings on material questions of fact and refer to the evidence or other material on which those findings are based: Omar at [34(c)]. Where a particular matter which was clearly raised in an applicant’s representations is not referred to in a Minister’s reasons, an inference might be drawn that the matter has not been considered by the Minister to be material: Omar at [34(d)], referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]; and see Anees v Minister for Immigration and Border Protection [2020] FCAFC 28 at [52].
In Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201, the Court said at [63]-[65]:
The reasons of an administrative decision-maker, where given pursuant to a statutory obligation of the kind found in s 43(2) and (2B) of the AAT Act, enable a supervising court to see what the repository of the power herself or himself saw as relevant and irrelevant, and to see how the decision-maker conceived her or his statutory task: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] per Gleeson CJ.
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court said at [49]:
The court is entitled to take the reasons of the tribunal as setting out the findings of fact the tribunal itself considered material to its decision, and as reciting the evidence and other material which the tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; [2001] HCA 30 at [10], [34] and [68] (Yusuf). Representing as it does what the tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a court on review to find jurisdictional error: see Yusuf at [10], [44], [69].
Brevity may therefore not necessarily indicate or reveal legal error. However a reviewing court (including review by way of an appeal under s 44 of the AAT Act) is entitled to approach the reasons of an administrative decision-maker as wholly reflective of its reasoning process.
Given the terms of s 25D of the Acts Interpretation Act 1901 (Cth), to which the Full Court in Omar referred, in our opinion this approach is applicable to the Assistant Minister’s reasons on the present appeal.
One matter of importance which was identified more plainly in Omar than perhaps in previous authorities is the role of the Minister’s reasons as an accountability mechanism for the exercise of a public power, in circumstances where there is no merits review: see Omar at [34(a)]. The serious consequences for an individual of an adverse exercise of power were described by the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3], in a passage quoted with approval by the Full Court in Omar at [37].
In Omar at [38], the Full Court stated:
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.
Omar is an authoritative decision of five members of this Court. While it might be the case that in other Full Court or single judge decisions, a different emphasis can be found on various aspects of the supervisory task, in our opinion those differences reflect the variety of factual circumstances which arise in cancellation decisions and the different ways arguments might be put on any individual appeal. That said, the outcome in Omar is of no consequence one way or the other for the present appeal. This appeal falls to be determined on this Court’s assessment of the Assistant Minister’s reasons as they were given in this appellant’s case, in the context of the specific representations made on behalf of this appellant.
Where the statutory task is to consider whether there is “another reason” to revoke the visa cancellation, an omission to explain (whether by way of express findings of fact or otherwise) why a representation which is fairly raised on the material is not a sufficient “other reason” to revoke the visa cancellation will generally raise an arguable question whether the Assistant Minister has performed the statutory task required of her or him.
In performing that task by way of the exercise of a personal power, the Assistant Minister is not bound by the terms of s 499 of the Migration Act to apply, or engage with, the terms of any ministerial direction given under that provision, such as Direction 65. However, even when the terms of a ministerial direction do compel consideration by a decision-maker of particular matters set out in that direction, the statutory task remains the same. Adhering to the structure of a ministerial direction must not distract from the primary statutory task, which is to consider (by way of active intellectual engagement) whether there is another reason to revoke the visa cancellation. In that task, the representations made by the person affected assume a primary and material role, irrespective of whether they engage directly with one of the matters in a ministerial direction. That is because the Minister has invited those representations, on the statutory question, and must therefore consider them. A reviewing court can generally expect to see such consideration reflected in the reasons given. That, as the Full Court observed in Omar, is part of the decision-maker confronting the reality of the exercise of public power.
Although the Assistant Minister’s reasons are expressed in general terms with, for example, no references to country information or any other factual material about the conditions in Sudan and South Sudan, no such material was placed before him by the appellant or by Victoria Legal Aid, and no specific issues were raised for the Assistant Minister’s consideration, particular to the appellant, about specific treatment he might experience on return (cf Omar). As the authorities to which we have referred above indicate, the appellant’s contentions must be considered in that context.
First particular: the appellant’s representation about difficulties in Sudan or South Sudan due to a lack of familial support
In its summary of the appellant’s representations on this matter, Victoria Legal Aid used the same headings as those employed by the briefing note and the Assistant Minister’s reasons. These headings reflect the instruction to those making representations that Direction 65 should be addressed, even though the Assistant Minister is not obliged to apply it. So, for example, on the issues which occupy many of the appellant’s contentions in this appeal, Victoria Legal Aid submitted:
Extent of impediments if removed
Given the available country information and the matters referred to above, we submit that the impediments [the appellant] will face if forcibly returned to Sudan are self-evident.
He has limited contacts in Sudan and would suffer from the lack of social, medical and economic support available. He has no reasonable prospect of integrating back into a community in which he has not lived since he was a child. His capacity to find employment and sustain himself would be minimal.
[The appellant] has experienced significant trauma in his life. We submit that there is a real prospect that his mental and physical health issues would go un-treated and deteriorate.
Of course, that representation must be read in the context of the earlier content of Victoria Legal Aid’s submission, which went into some detail about the appellant’s family circumstances past and present, his mental and physical health issues, and his work and education history. In that sense, its summary form is in our opinion explained because it is based on what has come before it.
For example, in addressing why any assessment of whether the appellant might meet the criteria for the grant of a protection visa would be inadequate, Victoria Legal Aid contended a number of factors would not form part of that assessment (and therefore needed to be considered separately by the Assistant Minister). These were said to include
separation from family, compounding of refugee trauma, the inability to access social, medical and economic support, [and] the inability to find work and survive in a country that is currently experiencing instability and violence.
Victoria Legal Aid added that the appellant “has no contact with family in Sudan and is a father-figure to 6 minor Australian children”. These submissions are consistent with what the appellant himself had said in his revocation request and in an interview: namely, that his “family being [his] mother and [his] brothers are in Australia” and that he “[l]eft [Sudan] when young [and doesn’t] know the country”.
The appellant contended that, to the extent the Assistant Minister’s reasons address his representations about the difficulties facing him on return to Sudan and or South Sudan, they did so primarily under a section of the reasons also entitled “[e]xtent of impediments if removed”. There, the Assistant Minister found at [45]-[51]:
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 [the appellant] will face if removed from Australia to his home country of Sudan or South Sudan in establishing himself and maintaining basic living standards.
I note [the appellant’s] concerns that it is unsafe to return to Sudan.
I note [the appellant] submits that he has limited contacts in Sudan and he would suffer from a lack of social, medical and economic support.
Furthermore, I take into consideration the notion that he 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, in a country that is experiencing instability and violence.
I acknowledge the submission of 22 December 2016, which also states that there is a real chance that [the appellant’s] mental and physical health issues would go untreated and deteriorate.
I find that [the appellant] will have similar levels of access to health and other services that are generally available to other citizens of Sudan or South Sudan in the same position as him. However, I accept that Sudan and South Sudan are developing economies that do not have the same available health services and of those available, the standards of any health care and social welfare support would not be at the level as that of Australia.
I consider that [the appellant] would face some initial hardship in relation to cultural and language barriers should he return to Sudan or South Sudan. However, I note that [the appellant] is able to speak Sudanese proficiently. Given his lack of familial support in Sudan or South Sudan, I find that [the appellant] will experience considerable hardship should he be removed to that country, particularly given the length of time he has lived in Australia and his strong family connections in Australia. I find that the presence of his sisters in Sudan may provide some support for [the appellant]. I take into consideration [the appellant’s] concerns for his safety if he was returned to Sudan and I find that his fears of returning will exacerbate his hardship.
As we explain below, there was no probative material on which the Assistant Minister could base his finding that the appellant’s two sisters in Sudan may provide “some support for him.”
At [32], the Assistant Minister also addresses these issues:
I have also considered [the appellant’s] claims of harm upon return to Sudan or South Sudan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, [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.
There is also [39]:
I take into consideration [the appellant’s] claims that an overwhelming financial burden will be placed on his family to support him if he was to return to Sudan and it would result in the permanent breakdown of his family unit. Furthermore, given the family’s difficult history, such an outcome would be inconsistent with the principle of family unity preserved in the International Covenant on Civil and Political Rights and Convention of the Rights of the Child.
The appellant contends that “noting” a matter may not equate to considering it. As we explain below, the use of that kind of language may or may not be significant, but it is not determinative of lack of consideration. All will depend on the context in which the language is used, and whether on a fair reading it can still be said the decision-maker actively engaged with the issues placed before her or him. The language used might be one indication of lack of active intellectual engagement; another might be whether findings of fact are made. However, the whole of the reasons, read in the context of the representations made and other information available, will need to be taken into account by the reviewing court.
In our opinion, the Assistant Minister’s reasons disclose that he did consider the representation to which the first particular refers. The findings to which we have referred above reveal an active intellectual engagement with the matters put forward, and indeed a recognition that the appellant would face considerable hardship if removed.
While we accept below that the Assistant Minster made a factual finding for which there was no probative evidence, we do not accept that this error means it is appropriate for this Court to find that the Assistant Minister did not consider the representation made. His consideration may have miscarried to some extent, because of what he found about the appellant’s sisters in Sudan. However, this particular was not put forward as an independent “no evidence” ground, but rather as indicative of the Assistant Minister’s failure to consider the representation that the appellant would face difficulties on return because of a lack of family support.
No basis for the Assistant Minister’s finding that the appellant’s two sisters in Sudan may provide some support for him
While the Assistant Minister considered the appellant’s representation that he would face a lack of support in Sudan or South Sudan, the weight given to this factor was discounted by the Assistant Minister because he found the appellant could receive support from his two sisters in a refugee camp in Sudan. This is the matter considered (with a different characterisation of error) by the primary judge.
The appellant contends the Assistant Minister’s finding of support by the appellant’s sisters was made without a factual basis, illustrated by the absence of any explanation by the Assistant Minister as to what kind of support he found the appellant’s two sisters could provide. We agree.

The Assistant Minister accepted the sisters’ circumstances as put to him: that they were in a refugee camp, that they were in “in unsafe and unsettled accommodation”, and that “[o]ne sister has an 11-year-old daughter [born] out of wedlock with no male support”.
It is unclear what support to the appellant that the Assistant Minister had in mind: financial, emotional, accommodation or some other kind. Without a finding about where the appellant would go, no finding about the kind of support could be made. Without findings about how the sisters might provide whatever support the Assistant Minister had in mind, no finding about them being in a position to provide it could be made.
The Assistant Minister has engaged in nothing more than speculation, without a probative basis. There may be some universal, stereotypical assumption (which provides no probative basis) that family members would support one another. However, at best that assumption might mean family members might aspire, or wish, to support other family members. However, even that assumption is full of other 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.
None of this is to suggest such fact finding was out of the question. However, it needs a probative basis, and some intellectual engagement that is beyond stereotyping and speculation.
The Minister contends that the finding was a qualified one, and in any event it is based on “ordinary human experience” that (in the absence of evidence suggesting the contrary) siblings will endeavour to help each other. He relies on DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [100] (family members acting as guarantors) and Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102 at [29], [35].
DCP16 was an appeal concerning an Immigration Assessment Authority decision and the refusal of a safe haven visa for a Sri Lankan national of Tamil ethnicity. The issue – presented in many such appeals – was what might happen to the appellant on return to Sri Lanka in terms of his prosecution for illegal departure, and the possibility he might have to pay a fine, or have a person guarantee payment of the fine before he would be released. The observations of the Full Court on which the Minister relies, at [100], were:
[I]f there is evidence that a person has family in the country of return, a decision-maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so. But to so reason may first require that the decision maker has put the person on notice as to the guarantee question.
That passage says nothing about “ordinary human experience”, although some kind of assumption to that effect might be said to be implicit in the Full Court’s reasoning, stemming from the presence of a family member in Sri Lanka. All these situations depend very much on the facts of a particular case, the reasoning of the decision-maker and the argument presented. We do not consider anything in DCP16 precludes us finding in this appeal, as we do, that the Assistant Minister’s approach 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 Minister about which country the appellant would be returned to.
We accept that in WET040 (No 2) there are several references to human experience, or “everyday” experience, or the like. We also accept that some of those statements occurred in the context of examining arguments about whether a finding was nothing more than speculation. In that case, the Refugee Status Tribunal had concluded that a particular claim made by the respondent was “inherently implausible”. The High Court considered, at [35] and [29], that, where “the respondent’s version of events … ill-accorded with the probabilities of ordinary human experience”, to conclude that the claim was implausible “was not speculative or conjecture. It was a logical deduction grounded in the seeming improbability of the respondent’s version of events.”
However, for the reasons we have given, without some factual basis, or more detailed reasoning, it is not possible to describe the Assistant Minister’s reasoning as being based on the probabilities of ordinary human experience. There is no evidence the Assistant Minister was equipped (by any probative material) to assess what “ordinary human experience” in Sudan or South Sudan might look like in any way, let alone in the particular way or circumstances in which a sibling might be able to help or support another sibling. The situation was not that of a sibling arriving into Heathrow airport and having family in a relatively proximate part of the United Kingdom, a developed country familiar to an Australian decision-maker, where it might be said most people have a reasonable standard of living and can access other parts of the United Kingdom, including having reasonable freedom of movement. There was no “popular perception” or “everyday experience” for the Assistant Minister to draw on about Sudan and South Sudan: at least, none which is apparent on the evidence. Compounding this were the specific circumstances of the appellant’s sisters, and the absence of any finding by the Assistant Minister about whether the appellant would even be returned to the same country that they were currently compelled to seek refuge in. The Minister’s submissions should be rejected.
The difficulty for the appellant on this first particular is that ultimately the Assistant Minister accepted the thrust of the appellant’s representation about the lack of family support and the hardship he would face. While it is correct that the Assistant Minister discounted the hardship by reference to a factual matter which was nothing more than speculation, we do not consider that means the Assistant Minister failed to engage with the representation.
What the Assistant Minister’s speculation about the appellant’s sisters does demonstrate, however, is that the Assistant Minister did not in reality engage with what the appellant was putting to him about why it was not safe for him to return to Sudan or South Sudan. As we explain below, he did not grapple with the realities of what was facing the appellant, including the country to which the appellant would be returned.
Second particular: Failure to determine whether the country of reference was Sudan or South Sudan
Like the finding about the appellant’s sisters, the failure of the Assistant Minister to make a specific finding about whether the appellant would be returned to Sudan or South Sudan is a further indication that the Assistant Minister did not engage with the appellant’s representation about it not being safe for him to be sent back. The failure to make a finding as between the two countries meant the Assistant Minister did not address whether different considerations might apply to each country, and what they might be.
It is important to begin with what should be an uncontroversial proposition: that Sudan and South Sudan are, and have been since 2011, two separate and independent nations and recognised in the international community (including by Australia) as such. Historically, including when the appellant was born and during his early years, they were not. However, the legal and factual reality is that they are sovereign nations, with their own border controls, their own citizens, their own legal and political systems. Assessing the return of a person to Sudan or South Sudan is no different to assessing the return of a person to Eritrea or Ethiopia; to Indonesia or East Timor; to Bosnia–Herzegovina or Croatia; or to Slovakia or the Czech Republic. These are all examples of two sovereign states which were, in recent history, part of the same State.
In the section of the Assistant Minister’s reasons dealing with non-refoulement, quoted above at [43], there is no reference at all to which country those obligations might be assessed against. Also in that section, where the Assistant Minister is discussing the ability of the appellant to apply for a protection visa (which entitlement was confirmed by the parties in a note after the hearing of the appeal), there is no country referred to as the country against which any protection obligations would be assessed.
The other evidence before the Court reveals the following:
(1)In the briefing note to the Assistant Minister, the appellant was identified in [1] as a national of Sudan. There is a footnote in the Assistant Minister’s reasons which notes that the appellant “list[ed] … his citizenship as Sudan”.
(2)Paragraph [31] of the briefing note records that the appellant stated “that he is a refugee from South Sudan and it would be unsafe if he returned there”. There is then a reference to an attachment to the reasons, which is the revocation request. In that form, the word “Sudan” is written next to box entitled “Country of Citizenship”.
(3)However, in handwriting two pages later in the revocation request, the statement is made:
I am a refugee from South Sudan.
(4)Later in that same handwritten section, there are the statements:
I would not be safe if I were returned to South Sudan. I have not lived in South Sudan since I was very young …
(5)However, later in the form, under the heading “basic personal data”, where there is a place to record “Citizenship”, the word “Sudanese” is written. In the same page, the appellant’s place of birth is recorded as South Sudan.
(6)Later, the same form asks: “Do you have any concerns or fears about what would happen to you on return to your country of citizenship? If yes, please describe your concerns and what you think will happen to you if you return”. The box marked “Yes” is ticked, and under this:
It is not safe to return to South Sudan. My family is here in Australia.
(7)The submissions made by Victoria Legal Aid refer to the appellant’s parents being born in South Sudan and moving to Khartoum, Sudan, where the submissions state the appellant was born. The submissions predominantly refer to Sudan as the country of reference. For example, in the conclusion:
We submit that [the appellant] faces a real risk of serious and significant harm if his visa remains cancelled and he is forcibly returned to Sudan. [The appellant] faces a real risk of indefinite detention if his visa remains cancelled if he cannot return to Sudan.
On a fair reading then, it is correct to say that both South Sudan and Sudan are referred to by the appellant and by Victoria Legal Aid. The appellant (on the assumption the handwritten parts of the revocation are his, and it was not suggested they were not) predominantly refers to South Sudan. In contrast, Victoria Legal Aid’s submissions predominantly refer to Sudan.
In oral submissions, senior counsel contended that the country to which the appellant would be removed and returned was a “glaring issue”. We accept it was a necessary aspect of the Assistant Minister’s task to make some finding of fact about the country to which the appellant would be returned. The Assistant Minister failed to do so – even in the section of his reasons dealing with protection obligations and non-refoulement. No country at all was nominated as the country against which Australia’s obligations would be assessed.
The Assistant Minister’s reasons are entirely equivocal throughout. They simply do not engage with which country the appellant will be returned to. Another example is at [50] of the Assistant Minister’s reasons:
I accept that Sudan and South Sudan are developing economies that do not have the same available health services and of those available, the standards of any health care and social welfare support would not be at the level as that of Australia.
In all of the findings, or passages, about what might occur to the appellant on return, the country to which he would return is not identified. 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. No assessment can be carried out about the circumstances, without identification of the country to which the Assistant Minister’s “consideration” of the reasons put forward by the appellant is to be assessed.
In some circumstances, it may be appropriate, as the Assistant Minister does in the passage at [50] of his reasons, to make a general statement which applies to both countries. However, in terms of a fact-based assessment of the difficulties and “impediments” (to use the language of Direction 65) which a person will face, the decision-maker must move beyond generalities. That is especially so where there is, as here, an explicit representation that the appellant would not be safe if returned.
Third particular: Failure to consider whether it was in fact unsafe for the appellant to return to Sudan or South Sudan
In his revocation request, under a heading “Reasons for revocation”, the appellant wrote (relevantly to this argument):
I am a refugee from South Sudan …
I would not be safe if I were returned to South Sudan. I have not lived in South Sudan since I was very young, having moved to refugee camps in Egypt to escape the war.
In answer to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”, the appellant wrote:
It is not safe to return to South Sudan. My family is here in Australia.
On both occasions, the appellant himself nominated South Sudan as his country of nationality.
In the VLA submission, having contended that the appellant may face indefinite detention “due to the current situation in Sudan”, VLA made the following representation towards the end of its written submission:
Given the available country information and the matters referred to above, we submit that the impediments [the appellant] will face if forcibly returned to Sudan are self-evident.
The submission by VLA was brief, to say the least. Nevertheless, the question of his safety was clearly raised by VLA. More critically to this argument, the appellant himself had put the fact that he would not be safe if returned to South Sudan prominently in his own material.
In the briefing note to the Assistant Minister, there is no material (for example, country information) put before the Minister about the situation in Sudan, or South Sudan, in terms of how safe a person in the appellant’s position would be if he were returned. Obviously, there is also no material about where he would be returned to. The briefing note deals with this issue in three places, in each place inadequately.
In the first, at [44]-[45], the briefing note states:
[The appellant] stated that it would be unsafe to return to South Sudan and that he has not lived in South Sudan since he was very young. [The appellant] had moved to refugee camps in Egypt to escape the war.
[The appellant] has limited contacts in Sudan and submits he would suffer from a lack of social, medical and economic support.
In these consecutive paragraphs, the briefing note fails to observe any distinction between Sudan and South Sudan, and also places no material before the Assistant Minister with which he might assess the representation made.
In the second, at [69], the briefing note states:
As part of his submissions for revocation of the original decision to cancel his visa, [the appellant] has made claims of fears to return to Sudan or South Sudan, as outlined above.
That is not, in fact, an accurate description of what the appellant, or VLA, put to the Assistant Minister. All three representations referred to the objective fact it was not safe for the appellant to return to South Sudan (or Sudan). That is what was put before the Assistant Minister as a “reason” his visa cancellation should be revoked: he should not be returned to South Sudan (or Sudan), because it was not safe for him there.
The third place is at [74] of the briefing note:
You may also consider [the appellant’s] claims of harm upon return to Sudan or South Sudan outside the concept of non-refoulement and the international obligations framework. You can consider that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, [the appellant] would face hardship arising from the following issues, were he to return to Sudan or South Sudan; his concerns for his safety, separation from his family, compounding of refugee trauma, the inability to access social, medical and economic support, the inability to find employment and survival in a country that is experiencing instability and violence.
Again, this paragraph does not accurately reflect what the appellant had said, nor what VLA had said. To water the description of the representation down to “claims” or “concerns” is not to grapple with the blunt factual assertion which was being put to the Assistant Minister.
That representation could not any more plainly have raised for the Assistant Minister’s consideration whether, as a matter of objective fact, the appellant would be “safe” if returned to South Sudan or Sudan. That representation 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).
No such exercise was undertaken. Consistently with the contents of the briefing note, the closest the Assistant Minister came to “safety” were references to “concerns” and “claims”. At [27], in the context of explaining why he decided (at [30]) not to consider Australia’s non‑refoulement obligations, the Assistant Minister stated that the appellant:
raised concerns that factors such as separation from his family, compounding of refugee trauma, the inability to access social, medical and economic support, the inability to find employment and survival in a country that is experiencing instability and violence [would] not be considered in a Protection visa application.
At [32], as we have extracted above at [43], the Assistant Minister found that, outside the non-refoulement framework , 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.
The Assistant Minister also said at [51]:
I take into consideration [the appellant’s] concerns for his safety if he was returned to Sudan and I find that his fears of returning will exacerbate his hardship.
And at [103] the Assistant Minister said that he had considered the appellant’s “claims that he will suffer hardship and harm if returned to Sudan or South Sudan”.
Finally, there was the statement, quoted above, at [46] of the reasons:
I note [the appellant’s] concerns that it is unsafe to return to Sudan.
As noted above, counsel for the appellant submitted that “noting” a representation is not the same as considering it. That may be so; however, in our opinion it is not so much the use of the verb “note” which is determinative. It is quite possible to use the word “note” in a way which indicates a finding is being made. For example, one might see in judicial reasons:
I note that witness X was not cross examined about this matter.
That kind of formulation is, in reality, a finding. The use of a different verb does not alter its character.

However, on other occasions using a verb like “note”, or “observe”, might indicate nothing more than that the fact or matter has, indeed, been noticed, but nothing further has been done with it.
In the case of the reasons of the Assistant Minister, we accept the appellant’s contention that it is not possible to characterise the statement at [46] as a finding by the Assistant Minister. It is an observation, no more.
However, even if all the extracts to which we have referred were to be characterised as findings it is not clear what they are findings of. Are they findings that accept that the appellant holds a fear for his safety or are they findings that accept, as a fact, that it is unsafe for the appellant to be returned to South Sudan or Sudan? What has the Assistant Minister taken into account – that the appellant has concerns or fears for his safety or the fact that it is unsafe to return the appellant to South Sudan or Sudan? In the face of that ambiguity it ought not be concluded that the Assistant Minister performed the statutory task required of him by confronting the factual representation that was made: determining how that factual representation should be assessed against South Sudan or Sudan; and incorporating those findings into the weighing exercise the Assistant Minister was undertaking.
VLA’s submissions clearly implied the situation in South Sudan and Sudan was notoriously unsafe – “self-evident” was the term used. As the Full Court in Omar explained, a representation of that kind requires the decision-maker to identify and then confront the objective reality of the circumstances to which a person is being compelled to return; and then explain how this reality has, or has not, affected the exercise of power. The Assistant Minister did not undertake that task at all, and therefore failed to exercise the jurisdiction conferred upon him according to law. The fact that the appellant’s representation was made as a general proposition, without detail, as were VLA’s (although there was a general reference to country information) does not excuse the non-engagement required by the authorities. The situation was said by VLA to be notorious. That was a rational submission, in the circumstances.
Fourth particular: The employment and sustenance representation
This representation is based on some of the factual matters which we have extracted above. However the Victoria Legal Aid document also contends (and the Assistant Minister appears to have accepted):
[The appellant] was 16 years old when he arrived in Australia. He was enrolled into secondary school, but left almost immediately because he spoke very little English and had limited prior formal schooling. He subsequently obtained factory work.
As with several of the other hardship findings, the Assistant Minister’s conclusion (reading both [51] and [103] together) is expressed very generally: he saw the difficulty in securing employment as but one of several hardships the appellant would face. Again, however, nothing of any detail in terms of country information, or other evidence, or even more detailed argument, was put to the Assistant Minister by the appellant, or by Victoria Legal Aid. In our opinion it is sufficiently clear from a fair reading of the Assistant Minister’s reasons overall that he well understood the appellant was likely to have real difficulties finding employment. Ultimately, that was not a matter to which the Assistant Minister gave particular weight.
Fifth particular: Whether there was a real prospect the appellant’s mental and physical health issues would go untreated and deteriorate
The representations made about the appellant’s physical and mental health were as follows:
Mental and physical health
As a child, [the appellant] witnessed numerous war atrocities in Sudan. His father disappeared in around 1999 and he assumed the patriarch role because he was the eldest son. He was the eldest of five children when his family members fled from Sudan to Egypt, which required him to protect the younger siblings.
The situation in Egypt was very difficult. [His mother’s] partner worked and earned a small wage, no one else in the family worked and the family survived primarily on UNHCR rations. The children did not go to school in Egypt.
In Egypt, [the appellant] and his family experienced violence from the authorities and local people. On one occasion, [the appellant] and his brother [redacted] walked a long time to obtain water. When they reached the water source, [the appellant] was stood over and cut on the neck with a razor blade.
[The appellant] has experienced a lot of trauma in his life, although never been diagnosed formally with post-traumatic stress disorder. Her Honour Judge Lawson recognised that [the appellant’s] early life was characterised by conflict of violence, including the death of his father.
We submit that [the appellant] would find it extremely difficult to obtain appropriate support in Sudan and this would negatively affect his mental health. The current situation in Sudan would additionally affect [the appellant’s] mental health, including a lack of safety and security.
(Footnote omitted.)
There is a clear finding by the Assistant Minister at [50] about the access the appellant will have to health and other services, in either Sudan or South Sudan. Aside from the omission of a determination about the country to which the appellant would be returned, we are otherwise not persuaded that the Assistant Minister, when his reasons are read fairly, failed to consider the submissions about the hardship the appellant would face because of his (undiagnosed) mental health issues or any physical health issues. The Assistant Minister did address this, and he made an express finding at [50].
Sixth particular: The representation about risk of indefinite detention in Australia
Counsel accepted, and we agree, that this was raised as a separate reason the Assistant Minister should revoke the visa cancellation, not tied to any of the other points made on behalf of the appellant, or by him.
The appellant contends a representation was made about this issue and not considered at all. It was made at least twice in the Victoria Legal Aid submissions – once in the passage we have extracted at [64(7)] above, and also in a section contending that the nature of harm if the appellant were to reoffend needed to be considered in light of his background, where Victoria Legal Aid contended:
We submit that [the appellant’s] offending is not serious enough to warrant visa cancellation, particularly because he is a refugee and owed protection obligations, and due to the current situation in Sudan the consequence of cancellation would be indefinite detention.
The briefing note to the Assistant Minister does not refer to the representation about indefinite detention at all.
In the Assistant Minister’s reasons, at [12], there is a reference to this representation:
In the representations/documents submitted by or on his behalf, [the appellant] has articulated reasons why the original decision should be revoked, which include: …
•he risks being indefinitely detained if his cancellation is not revoked
That is the only reference to this risk. The Assistant Minister made no findings about this matter at all, which in a practical sense is likely to have been bound up with his failure to examine the question of which country the appellant would be returned to, and his failure to grapple with the appellant’s representation that he would not be safe in South Sudan.
The Minister submits:
The Assistant Minister acknowledged that a submission to this effect was made (Reasons [12]). However, the submission is legally incorrect – nothing in the information before the Assistant Minister suggested that indefinite detention was a possibility. The impediments to return contended for would not prevent the Appellant’s return to Sudan or South Sudan from being “practicable” within s 198 of the Act. And by s 197C, the existence of non-refoulement obligations (if established) would not be relevant to the removal of the Applicant. Further and alternatively, indefinite detention (even if it were possible) would not be a consequence of the non-revocation decision, given that the Appellant could still apply for a protection visa.
(Footnotes omitted. Emphasis in original.)
One of the authorities cited by the Minister in this paragraph is AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451. That case provides an appropriate comparison, but it does not assist the Minister’s argument. It also involved a visa holder who was born in Sudan. However, in that case, inquiries about his citizenship, and an assessment of the risks he faced on return (called an International Treaties Obligations Assessment, or ITOA) had been carried out. The Full Court said at [44]-[45]:
The Minister’s statement of reasons reveals that:
(a)the Minister acknowledged that the appellant is no longer a citizen of Sudan where he was born and that he has never lived in South Sudan, where he is now a citizen (see [21] of his statement of reasons);
(b)the appellant entered Australia holding the visa which was granted to him as a dependant of his mother, who was considered to be a woman at risk (see [28] of his statement of reasons); and
(c)consideration was given to whether Australia owed non-refoulement obligations to the appellant and the Minister concluded, at [30] of his statement of reasons, as follows:
I had regard to the findings of an International Treaty Obligations Assessment completed by [sic] on 28 April 2014, and a Supplementary International Treaty Obligations Assessment, completed on 23 June 2014. The finding of each assessment was that [the appellant] was not owed non-refoulement obligations. I had regard to the fact that [the appellant’s] representative disputes the findings of these assessments. I accept the findings and I am satisfied that [the appellant] is not owed non-refoulement obligations.
The key findings of the two ITOAs are outlined in [11] above. In our view, it was open to the Minister to rely upon these assessments regarding Australia’s protection obligations to the appellant and to reject the appellant’s contention that he might remain in immigration detention indefinitely if he could not be returned to South Sudan. We respectfully agree with the primary judge’s finding at [46] that the Department’s assessments set out a rational basis for the conclusion that the appellant could be returned to Juba in South Sudan.
And at [59]:
This issue arises under both grounds 1 and 2. We do not accept that the Minister failed to make a finding on the issue of whether or not South Sudan would physically accept the appellant were he to be returned to that country and that there was consequently a risk that he would be detained indefinitely here in Australia in immigration detention. As noted above, the author of both the ITOAs stated that he was satisfied that “South Sudan will accept the [appellant] as a citizen”. Viewed in context, these findings (which the Minister accepted and acted upon) went further than merely stating that South Sudan would view the appellant to be a citizen of that country. These findings were made in the context of a detailed analysis and discussion in the ITOAs of Australian’s non-refoulement obligations, which necessarily focused on countries to which the appellant might physically be returned. After finding that there was no evidence to suggest that the appellant would be returned to Egypt (from where he came to Australia), attention had to be focused on South Sudan as the relevant country. After analysing the relevant material, the departmental officer concluded that the appellant was a citizen of South Sudan and that that country would accept him as a citizen. This finding, properly understood, meant that the departmental officer was satisfied that the appellant could physically be returned to South Sudan. This finding related to the appellant as an individual.
No fact finding of this kind exists in the Assistant Minister’s reasons in this case.
However, it is true that, at [70], the Full Court said:
The further significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant’s visa do not necessarily include removal from Australia or indefinite detention.
It may be the case that legal and factual consequences in the situation of a particular individual will “not necessarily” involve removal or indefinite detention, because of the prospect of a successful visa application. It is important, with respect to the Full Court, to qualify the statement made by noting that it is only a successful visa application which is capable of avoiding removal or indefinite detention. The fact of a visa application itself is no more than a temporary delay to removal or in some limited circumstances a temporary reprieve from indefinite detention. The fact of a visa application may otherwise form part of a period of indefinite detention if a person is not released into the community on a bridging visa while the visa application is processed. For persons in the circumstances of the appellant (who has been found to present an unacceptable risk to the Australian community), it is likely he would be detained during any consideration of a visa application.
Applying the Full Court’s statement to the appellant is, however, dependent on the appellant applying for a protection visa. He may or may not do so: he (and those advising him) may, with some cause, consider his prospects of being granted such a visa are infinitesimal given the Assistant Minister’s decision and his criminal record. That is, to use the High Court’s phrases cited above in a different context, a “logical deduction grounded in the seeming improbability” of the appellant, having had his visa cancelled twice on the principal basis that the protection of the Australian community requires that he not be permitted to remain, being granted a different visa so he can remain in the Australian community. Absent such an improbability, that would leave either removal to Sudan or South Sudan, or indefinite detention.
We do not accept that the Assistant Minister was entitled to ignore the realities of the appellant’s circumstances in the way he did. In the absence of any ITOA, in the absence of any decision about the appellant’s nationality and which of Sudan or South Sudan would accept him, the prospect of indefinite detention was real. The Assistant Minister addressed the appellant’s legal entitlement to apply for the protection visa and addressed the contents of Direction 75, which the Assistant Minister found was likely to require a delegate to consider any non-refoulement obligations owed to the appellant. However, this did not grapple with the realities of the appellant’s situation. The appellant had a visa cancelled because he did not pass the character test and there had twice been no discretionary revocation of that cancellation. He had twice been found to pose such a danger to the Australian community that all other factors which might have tended in favour of him being allowed to remain in Australia were outweighed. The appellant’s indefinite detention representation to the Assistant Minister was, rationally, based on an assumption that he was unlikely to be granted a protection visa, which would release him into the Australian community, being the very outcome that the Assistant Minister had decided should not occur. If the situation in whichever of Sudan or South Sudan the appellant could be returned to was such that Australia’s international obligations might preclude removal, albeit that the appellant has no visa, then the reality for him would be indefinite detention. The Assistant Minister was required to confront this and deal with it in his reasons.
Whether any error was material
The Minister contends, and the appellant did not dispute, the Court must adopt the approach set out in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421, although neither of those cases concerned an exercise of power of the kind in s 501CA(4).
Other Full Courts have proceeded on the basis that any identified error must be characterised as “material” to the outcome of the exercise of power before it can be described as jurisdictional, thus avoiding the effect of the privative clause in the Migration Act: DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; 268 FCR 64 at [74]; Tsvetnenko v United States of America [2019] FCAFC 74; 367 ALR 465 at [92] Dang v Administrative Appeals Tribunal [2019] FCAFC 220 at [28].
Accordingly, it appropriate to set out how the Assistant Minister drew all his findings together in that part of his reasons at [99]-[104] where he explained why he had decided, on balance, not to revoke the visa cancellation:
In considering, in light of [the appellant’s] representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of the minor children in [the appellant’s] life. I found that their best interests would be served by the revocation of the original decision.
On the other hand, 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 [the appellant], that being physical violence against his former partners, the contravention of family violence orders and the cumulative effect of other repeated offending.
Further, I find that the Australian community could be exposed to great harm should [the appellant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the appellant].
I am mindful that where great 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 [the appellant], than I otherwise would, because he has lived in Australia for a long period of time.
In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the appellant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of the minor children in his life, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, claims that he will suffer hardship and harm if returned to Sudan or South Sudan, employment and familial support in Australia, and the hardship [the appellant], his family and social networks will endure in the event the original decision is not revoked.
Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel [the appellant’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 [the appellant’s] Class XB Subclass 200 Refugee (Permanent) visa remains cancelled.
Where questions of weight are involved, and a representation raised by a person is a matter of real and not marginal or fanciful relevance to the statutory task, this Court on review is unlikely to be able to conclude one way or the other what weight might have been given to that representation in the discharge of the statutory task, had the representation been approached rationally and on the basis of probative material. A reviewing court is unlikely to be able to conclude the outcome could not have been different, which is in substance the exercise the Minister asks the Court to perform.

So too, in this case, the Assistant Minister’s observation that the appellant “may” draw “some” support from the presence of his sisters in Sudan is nothing more than a “broad proposition” as to the support that he might be able to draw from his proximity to his sisters in Sudan. It was not necessary for the Assistant Minister to particularise the form or forms that that support might assume.
The primary judge was, with respect, correct to conclude as he did. The Assistant Minister did not fail to consider “…the appellant’s representation that he would face difficulties in Sudan or South Sudan due to a lack of familial support in those countries”. On the contrary, that representation was understood and, more importantly, accepted.
The primary judge was also, with respect, correct to conclude that the Assistant Minister did not lack a basis for finding that the presence of the appellant’s sisters in Sudan may provide some support to him (or otherwise that that finding was not illogical or irrational in a way that might sound in the granting of prerogative relief).
The Non-Revocation Decision is not attended by jurisdictional error in the form or forms that the appellant’s first ground (or particular) alleges.
GROUND/PARTICULAR 2: FAILURE TO IDENTIFY A RECEIVING COUNTRY
The appellant complains that the Assistant Minister failed to make a finding as to the country to which he would be returned in the event that the Cancellation were not revoked. That the Assistant Minister did not make such a finding is uncontroversial. At issue presently is whether he was obliged to. I do not accept that he was.
As the majority’s recitation of the appellant’s submissions in support of revocation lays bare, the country to which the appellant might be removed was not made clear to the Assistant Minister. The appellant’s material recorded both Sudan and South Sudan as possibilities in that respect. There was genuine—and perhaps understandable—uncertainty on that front. No doubt in light of that uncertainty, the Non-Revocation Decision proceeded upon the assumption that the appellant would be removed to one of Sudan or South Sudan. In that sense, at least, the Assistant Minister cannot fairly be criticised for failing to consider, in the relevant legal sense, any representation that the appellant advanced about where he would be sent or what would await him once he got there.
Instead, the appellant’s complaint is that the Assistant Minister was obliged to, but did not:
(1)divine to where it was that he would be sent; and then
(2)assess the hardship that would befall him in that country.
Insofar as concerns a decision to revoke or not revoke the mandatory cancellation of a visa, the Act does not impose any obligation upon the Minister (nor any other decision maker) to make a finding as to where—or to which country—an unlawful non-citizen might be earmarked for removal. Rather, decision makers must consider, simply enough, whether there is “another reason” why the mandatory cancellation of a visa should be revoked. Doing so involves, at the least, consideration of the contentions advanced in that regard by the former visa holder: Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”), [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (“Buadromo”), 332 [42] (Besanko, Barker and Bromwich JJ). At issue presently is what that consideration required; and, in particular, whether it required the making of a finding as to the specific country to which the appellant would be removed absent revocation.
There is 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. Decision makers are not required to consider claims that are not put: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523, 562 [139] (Robertson, Moshinsky and Bromwich JJ); Minister for Immigration and Border Protection v DRP17 (2018) 267 FCR 492, 502 [47] (Jagot, Rangiah and Banks-Smith JJ); Sowa v Minister for Home Affairs [2019] FCAFC 111, [43] (Jagot, Bromwich and Thawley JJ). They are not required to seek out and consider additional material that supports or qualifies submissions advanced before them: Hernandez v Minister for Home Affairs [2020] FCA 415 (Charlesworth J). Here, the appellant submitted that, absent revocation, he would be removed to Sudan or South Sudan. That was the submission that the Assistant Minister considered.
It was open to the Assistant Minister to discharge—and, indeed, he did discharge—his obligation by considering whether “another reason” arose in relation to each of the potential countries in respect of which the appellant’s removal was in play. Had he inclined toward different conclusions about each alternative—that “another reason” would exist in the event that the appellant were removed to Sudan but not if he were removed to South Sudan, for example—then he might, at that point, have had to decide to which of the two the appellant would be removed. That didn’t happen. The Assistant Minister concluded 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.
The Assistant Minister did not fail to grapple with what the future holds in store for the appellant, nor with what the appellant said on that score. There is no warrant for concluding that the Assistant Minister failed to engage in an “active intellectual process” in respect of the appellant’s submission (see CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155, [76] (Allsop CJ, Kenny and Snaden JJ; “CAR15”)), or failed to give it “proper, genuine and realistic consideration” (Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, 654 [45] (Rares, Flick and Robertson JJ; “Maioha”)), or failed to “take responsibility for what he [was] doing” (Omar, [38] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ)). It is apparent from his reasons that the Assistant Minister understood entirely the import of his decision: namely, that the appellant would be removed to either Sudan or South Sudan, where, in either case, he would be subjected to significant hardship.
Reasoning in that way did not involve any misconstruction of the Assistant Minister’s statutory task. Much less did it involve any failure on his part to consider (in any of the various adjectival senses to which the authorities give voice) anything that the appellant advanced in favour of revocation. The appellant’s second ground (or particular) is not made out.
GROUND/PARTICULAR 3: FAILURE TO MAKE FINDINGS ABOUT SAFETY
In the material that he advanced in support of his request that the Cancellation be revoked, the appellant opined that he would not be safe in Sudan or South Sudan. He invited the Assistant Minister to form that same opinion and to conclude, on the strength (or partly on the strength) of it that there was “another reason” why the Cancellation should be revoked.
In the reasons that accompanied his Non-Revocation Decision, the Assistant Minister did not indicate his acceptance or rejection of the proposition that the appellant put (namely, that he would not be safe in Sudan or South Sudan). It may be inferred that the Assistant Minister made no finding about that issue: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 330-331 [5] (Gleeson CJ), 345 [69] and 348-349 [75] (McHugh, Gummow and Hayne JJ). The appellant contends that his failure to do so reflects a failure on his part to consider the submission that the appellant advanced. Respectfully, I do not agree.
Whether or not it is appropriate to infer that a particular claim or issue has been overlooked is a question to be assessed “…by reference to the facts of each particular case and the Minister’s reasons as a whole [and t]he reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error”: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [76] (Perram, Murphy and Lee JJ). In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Griffiths, White and Bromwich JJ; “Carrascalao”), this court held (at 364 [48]) that:
…a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof.
Those observations were recently endorsed in CAR15, [76] (Allsop CJ, Kenny and Snaden JJ).
The relevant inquiry is necessarily fact-dependent. It involves an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of a given case: Carrascalao, 364 [47] (Griffiths, White and Bromwich JJ). That judgment is formed as a function of impression, resting upon a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Maioha, 654 [45] (Rares and Robertson JJ, Flick J agreeing in the result).
In Omar, the full court observed at [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).
(emphasis added)
Later, their Honours explained that the representations in issue in that case—namely, that the appellant was at risk of substantial harm if returned to his native Somalia—“…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” (emphasis added): Omar, [43(a)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).
In Buadromo—which, like Omar, was another case concerning the application of s 501CA(4) of the Act—the full court identified (at 59 [46]) some circumstances in which findings regarding contentions advanced by an applicant might not be required:
A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.
(emphasis added)
In Guclukol v Minister for Home Affairs [2020] FCA 61 (Snaden J)—a revocation case not unlike the present—I had occasion to survey those authorities and to consider their practical implications. There, the applicant complained about a decision maker’s failure to make a finding as to his submission that, if removed to his native Turkey, he would “struggle to subsist”. I made the following observations (at [28]):
The difficulty that often, if not always, arises in cases such as the present (and that arose in Omar and Buadromo) is that determination of the consequences or circumstances that an applicant will face if removed from Australia—that is, the consequences or circumstances by reason of which it is said that there is “another reason” under s 501CA(4) of the Act why the decision to cancel his or her visa should be revoked—typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn’t easily permit of definitive findings. The present case is a good example. It is, of course, the case that the applicant’s fate if returned to Turkey is not (and cannot be) precisely known. He might, as he submitted to the Minister, “struggle to subsist”. He might not.
Similar observations may be made in the present case. Opining—somewhat baldly, as the majority’s recitation of his submissions demonstrates—that his removal to Sudan or South Sudan would place the appellant at risk of physical harm necessarily involved engagement in speculation. However well-informed, speculation of that nature will always be imperfect (in the sense that history may or may not vindicate it). Plainly, it was open to the Assistant Minister to deal with the appellant’s contention by accepting or rejecting it. Equally, however, it was open to the Assistant Minister to process that contention in the way that the full court in Buadromo contemplated: in other words, by reasoning that, even assuming that the appellant would be subjected to risks of physical harm, that (either alone or in light of other considerations, such as his record of violent criminality) was not sufficient to constitute “another reason” why the Cancellation ought to be revoked. Reasoning in that way would discharge the Assistant Minister’s obligation to confront what the appellant advanced, to subject those contentions to a process of active intellectual contemplation, to grapple with the realities of the appellant’s predicament, to take responsibility for what he was doing, and otherwise to consider (in the sense contemplated by any other formulation of that concept) what it was that the appellant had submitted. Those obligations would all be discharged notwithstanding the absence of a finding, one way or the other, as to whether or not the appellant’s removal to Sudan or South Sudan would subject him to relevant risk.
Whether a decision maker has failed to consider a claim that was advanced in support of a particular outcome—in this case, the revocation of the Cancellation—is a question of fact. In the absence of direct evidence from the decision maker as to what it was that animated his or her decision, such a failure is established as a matter of inference. This case is not, in my view, within the sphere to which the full court, in Omar, adverted. In circumstances where the Assistant Minister was, on any view, alive to the submission that the appellant had advanced about the risks of removing him to Sudan or South Sudan, and given the necessarily speculative and unparticularised form that that submission assumed, the absence of a specific finding on the issue is not a circumstance from which it can safely be inferred that the Assistant Minister failed to consider what the appellant had advanced.
All the more is that so given how comprehensive were the reasons that accompanied the Non-Revocation Decision. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court observed on that score (at 604 [47]) that an:
…inference that the [decision maker—in that case, a tribunal] has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
I do not consider that there is a sufficient basis for inferring that the Assistant Minister failed to consider (or meaningfully consider, or engage properly with, or confront the realities inherent within, or grapple with) the submissions that the appellant made about the circumstances that would befall him if he were removed to Sudan or South Sudan. Far more likely is that he simply didn’t accept that those circumstances amounted to “another reason” for the purposes of s 501CA(4) of the Act. Whether that conclusion was sound is not for this court to gainsay. By deciding as he did, the Assistant Minister acted within his jurisdiction.
The appellant’s third ground (or particular) is not made out.
GROUND/PARTICULAR 6: INDEFINITE DETENTION
In support of his submission that the Cancellation should be revoked, the appellant asserted that he was otherwise at risk of being detained indefinitely in immigration detention.
That assertion was recorded in the reasons that accompanied the Non-Revocation Decision but, as the majority points out, those reasons otherwise made no mention of the risk that the appellant identified, nor did they examine why it was not considered to constitute “another reason” why the Cancellation should be revoked. The appellant contends that that absence of analysis within the reasons bespeaks a failure on the Assistant Minister’s part to consider that aspect of the submission that was advanced in support of revocation.
In answer to that submission, the Assistant Minister invested some time in explaining why, in truth, indefinite detention was not in prospect. Respectfully, it wouldn’t matter if it wasn’t. At issue presently is whether the Assistant Minister considered what the appellant advanced. Had he done so by correctly dismissing the prospect of indefinite detention (if, indeed, that be the correct analysis), then he would have discharged his obligation to consider the submissions upon which the appellant relied. But he was not relieved of that obligation merely because the circumstance to which the appellant adverted was, in truth, not one that was in prospect: DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 681 [184], 681-682 [188]-[189] (Robertson J, with whom Logan J agreed; Rares J dissenting but not on that point).
All of the other submissions that the appellant advanced as reasons why the Cancellation should be revoked were addressed in the reasons that accompanied the Non-Revocation Decision. That warrants—I think very strongly—the drawing of an inference that the prospect of indefinite detention, real or otherwise, was one that the Assistant Minister failed to consider. Why, it might be asked, would the Assistant Minister address all of the other contentions to which the appellant had adverted but stay mute on this one? The most likely answer is that the issue went unconsidered. Whether that was because it slipped between the proverbial cracks—got lost, as it were, amongst the lengthy analysis of all of the other issues that the appellant advanced—doesn’t much matter. I infer that the submission was not considered.
The Assistant Minister’s failure to consider the submission that the appellant advanced about the prospect of his indefinite detention was relevantly material and, therefore, amounts to jurisdictional error. Had it not occurred, there is at least some prospect, however remote, that the Assistant Minister would have been drawn to a different conclusion as to whether or not the Cancellation ought to have been revoked. The Non-Revocation Decision was, therefore, not one that the Assistant Minister had jurisdiction to make. It must be remitted for reconsideration.
CONCLUSION
The Assistant Minister’s Non-Revocation Decision should be set aside and remitted for determination according to law. For the reasons that the majority identifies, I agree that there should be an order for costs in the appellant’s favour and that those costs should be made payable to the appellant’s counsel.
I would therefore order that:
(1)The appellant have leave to file his amended notice of appeal (a proposed version of which was filed on 4 November 2019).
(2)The appeal be allowed.
(3)The orders made by the primary judge on 7 June 2019 and 21 June 2019 be set aside and, in their place, it be ordered that:
(a)a writ of certiorari issue, removing into this court and quashing the decision that the Assistant Minister for Home Affairs made on 3 July 2018 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision made on 4 May 2016 to cancel the appellant’s Class XB Subclass 200 Refugee (Permanent) visa;
(b)a writ of mandamus issue, requiring the making according to law of a decision under s 501CA(4) of the Migration Act 1958 (Cth) as to whether or not the decision made on 4 May 2016 to cancel the appellant’s Class XB Subclass 200 Refugee (Permanent) visa should be revoked; and
(c)the respondent pay the appellant’s costs of the proceeding below in an amount to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
(4)The respondent pay the appellant’s costs of the appeal:
(a)in an amount to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS); and
(b)directly to counsel for the appellant in accordance with r 4.19 of the Federal Court Rules 2011 (Cth).

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.
Associate:
Dated: 25 June 2020

Appeal from:	DQM18 v Minister for Home Affairs [2019] FCA 852
File number:	VID 727 of 2019
Judges:	BROMBERG, MORTIMER AND SNADEN JJ
Date of judgment:	25 June 2020
Catchwords:	MIGRATION ACT – s 501CA(4) Migration Act 1958 (Cth) – application for judicial review – where Assistant Minister determined not to revoke cancellation of appellant’s visa – whether the Assistant Minister failed to perform the requisite statutory task by (i) giving meaningful consideration to various representations made by the appellant; (ii) by failing to determine the country to which the appellant would be returned; and (iii) by failing to consider that indefinite detention would be a legal consequence of the non-revocation of the cancellation of the appellant’s visa – whether any error was material to the exercise of power and therefore a jurisdictional error – decision of Assistant Minister set aside.
Legislation:	Acts Interpretation Act 1901 (Cth) s 25D Migration Act 1958 (Cth) ss 499, 501, 501CA Federal Court Rules 2011 (Cth) rr 4.12, 4.19(3)
Cases cited:	Anees v Minister for Immigration and Border Protection [2020] FCAFC 28 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 AXT19 v Minister for Home Affairs [2020] FCAFC 32 AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 BSE17 v Minister for Home Affairs [2018] FCA 1926 CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Dang v Administrative Appeals Tribunal [2019] FCAFC 220 DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; 268 FCR 64 DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 DQM18 v Minister for Home Affairs [2019] FCA 852 EVK18 v Minister for Home Affairs [2020] FCAFC 49 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Guclukol v Minister for Home Affairs [2020] FCA 61 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 Hernandez v Minister for Home Affairs [2020] FCA 415 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 Navoto v Minister for Home Affairs [2019] FCAFC 135 Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102 Sowa v Minister for Home Affairs [2019] FCAFC 111 Tickner v Chapman [1995] FCA 1726; 57 FCR 451 Tsvetnenko v United States of America [2019] FCAFC 74; 367 ALR 465 Uelese v Minister for Immigration and Border Protection and Another [2016] FCA 348; 248 FCR 296
Date of hearing:	13 November 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	170
Counsel for the Appellant:	Mr G Gilbert SC with Ms K Grinberg (Pro Bono)
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Australian Government Solicitor

Table of Corrections
7 July 2020	In paragraph 113, second sentence, “is” has been added after the words “A reviewing court”.

JUDGES:	BROMBERG, MORTIMER AND SNADEN JJ
DATE OF ORDER:	25 JUNE 2020