It’s a fairly common applicant’s complaint that the Tribunal didn’t consider [named issue]. Of all the things I’m ever asked to advise on, I always find this one of the most difficult. It also an area where I always feel that the odds are not in an Applicant’s favour. In RRFM v Minister [2022] FCAFC 27, the ground of appeal was that the primary judge didn’t properly consider the possibility of indefinite detention. RRFM is by no means a “landmark case” on this issue, but the difficulty of the argument is set out in the following dot points:

  • there needs to be “an active intellectual process” with representations, consistently with the Full Court’s approach in Tickner v Chapman (1995) 57 FCR 451
  • In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court said at [89]: “Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case” & “will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons“.
  • In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 the Full Court (Griffiths, White and Bromwich JJ) said at [48] that “a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made

And…. just to make it worse, just because it wasn’t referred to in the reasons doesn’t necessarily mean that an issue hasn’t been considered. Remember the “Oscar and Walter” post for example.

Creative commons acknowledgment for the photograph.

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