The High Court case of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 deals primarily with how decision makers should deal with non-refoulement (protection) claims in the context of whether a visa cancellation on character grounds should be revoked or affirmed. This is one of the “other considerations” which arise for consideration in Direction 90. There is a distinction between claims (or circumstances) which are made under un-enacted international obligations (which don’t have to be considered) and those made under domestic law which do have to be considered. The decision maker can consider the claim in substance or it can be deferred if there is a possibility that a protection claim will be made in the future.

The High Court at [23]-[24] (references omitted) has summarised the obligations on decision makers who consider representations made by applicants. It is well established that:

    • a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
    • the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

Although the Applicant was not successful, there is a powerful dissenting judgment by Edelman J (starting at [48]) (with whom Gleeson J agreed). His Honour said there was no dispute that the Applicant’s life was in danger if returned to Sudan and that “process‑related powers and duties must be exercised or performed reasonably just as outcome‑related powers and duties must be exercised or performed reasonably”. His Honour was clearly of the view that the Minister had acted unreasonably. Unfortunately this really (in my view) highlights the shortcomings and subjective nature of judicial review.

Creative commons acknowledgement for the photograph.