FEDERAL COURT OF AUSTRALIA CCF20 v Minister for Home Affairs [2020] FCA 676 File number: VID 97 of 2020 Judge: KERR J Date of judgment: 20 May 2020 Catchwords: MIGRATION – visa cancellation on character grounds – application for review of decision by Minister not to revoke visa cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether failure to give meaningful consideration to substantial and clearly articulated representations concerning risk of harm if applicant returned to Somalia – construction of Minister's reasons – where Minister expressly accepted his Department's conclusion reached in an earlier International Treaties Obligation Assessment (ITOA) that Applicant was owed non-refoulement obligations – whether in accepting that conclusion the Minister also implicitly accepted and adopted the findings of fact his Department had made – principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 applied – where ITOA had refrained from making findings with respect to the Applicant's claim that there was a real risk that he would be killed if returned to Somalia because of his father's role in the former government of Somalia – Minister failed to afford that representation meaningful consideration – application upheld Legislation: Migration Act 1958 (Cth) ss 48A, 501(3A), 501CA(3)(b), 501CA(4), Cases cited: BAL19 v Minister for Home Affairs [2019] FCA 2189 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 Hands v Minister for Immigration [2018] FCAFC 225; 267 FCR 628 Hernandez v Minister for Home Affairs [2020] FCA 415 Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Date of hearing: 11 May 2020 Date of last submissions: 18 May 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 124 Counsel for the Applicant: Mr A White Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr G Hill Solicitor for the Respondent: Australian Government Solicitor ORDERS VID 97 of 2020 BETWEEN: CCF20 Applicant AND: MINISTER FOR HOME AFFAIRS Respondent JUDGE: KERR J DATE OF ORDER: 20 May 2020 THE COURT ORDERS THAT: 1. The decision of the Respondent made on 15 January 2020 not to revoke the cancellation of the Applicant's visa be set aside. 2. The Respondent determine the Applicant's application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law. 3. The Respondent pay the Applicant's costs of the proceeding, as agreed or assessed. 4. The interim suppression order made on 11 May 2020 be revoked and substituted for by an order that pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), in order to protect his safety the name of the Applicant is to be replaced with the pseudonym CCF20 in the published reasons of the Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KERR J: 1 The Applicant is a Somalian national who arrived in Australia in 1995, aged 14. Prior to the events which are the subject of this application, he held a Class BF Transitional (Permanent) Visa. 2 The Applicant's representatives summarise the events that followed his arrival as follows: When he was about 14 or 15 years old, shortly after arriving in Australia, the Applicant left the family home and became a ward of the state. He soon turned to drugs and alcohol and began criminal offending. His criminal history is extensive and serious, including offences involving violence and dishonesty. The Applicant has a significant history of mental illness. He has been diagnosed with post-traumatic stress disorder, has experienced auditory hallucinations in line with drug induced psychosis or schizophrenia and has a long history of self-harm including suicide attempts. He has previously been prescribed anti-psychotic medication and, at various times, methadone. (Footnotes omitted). 3 That history is not in dispute. 4 In October 2012, an International Treaties Obligation Assessment (ITOA) was conducted with respect to the Applicant. The ITOA concluded that the Applicant was a refugee, and that Australia owed him non-refoulement obligations. 5 On 4 June 2014, the Applicant was convicted of rape and sentenced to eight years' imprisonment. 6 On 19 December 2014, a delegate of the Minister cancelled the Applicant's visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The basis for the cancellation was that the Applicant did not pass the character test as he had a substantial criminal record (s 501(6)(a)), having been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). 7 On 12 January 2015, the Applicant applied to the Minister for revocation of his visa cancellation under s 501CA(4) of the Migration Act. Section 501CA(4) is in the following terms: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 8 On 29 January 2015, the Applicant's legal representatives made representations on his behalf. 9 On 22 July 2016, the Minister decided not to revoke the cancellation. The Applicant sought judicial review of that decision in the Federal Court of Australia (proceeding VID1228/2016). On 21 July 2017, the Court by consent quashed the Minister's decision and remitted the matter for determination according to law. 10 On 27 December 2017, the Applicant's representatives provided further submissions. 11 On 19 June 2018, the Minister again decided not to revoke the cancellation. The Applicant sought judicial review of that decision in this Court (proceeding VID973/2018) for a second time. On 28 February 2019, the Court by consent once again set aside the Minister's decision and remitted the matter for determination according to law. 12 On 13 June 2019, the Applicant's representatives again provided further submissions. 13 On 15 January 2020, the Minister once again decided not to revoke the cancellation of the Applicant's visa (the non-revocation decision). It is this third decision that is the subject of the present application. 14 On 17 January 2020, the Applicant was notified of the non-revocation decision by letter. 15 On 17 February 2020, the Applicant filed in this Court an originating application for review of the non-revocation decision. The Applicant sought an order quashing the decision, and an order remitting the matter to be determined according to law by a person other than the Minister. Applicant's Representations 16 The Applicant advanced a number of representations through his legal representatives. Those representations were informed by the ITOA, which was before the Minister. The ITOA concluded that Australia owed the Applicant non-refoulement obligations. The assessor relevantly made the following key findings: Part B – Assessment of Non-refoulement Obligations under the Refugees Convention … Against this background, I consider there is a strong likelihood that [the Applicant] would be exposed to harm by militia groups if he returns to Mogadishu. I consider that he would be specifically targeted for extortion and/or forced recruitment by militia groups as a returning member of the Somali Diaspora who has no connection and no source of livelihood, as well as being a young man of fighting age. I consider there to be a heightened risk of serious harm in this case because of the limited mental health services available and the irregular supply of medication which he would require to manage his psychosis. I am satisfied that, in light of [the Applicant's] particular circumstances and the absence of any effective State protection in Mogadishu, there is a real chance he will be persecuted for reasons including his membership of the particular social groups of "returning members of the Somali Diaspora" and "young men of fighting age in Somalia". … For the reasons set out above, I find that [the Applicant] has a well-founded fear of persecution in Somalia for the purposes of the Refugees Convention. … Part C – Assessment of Non-refoulement Obligations under the ICCPR and CAT … I have considered the department's guidance that the threshold for establishing a real risk of significant harm for the purposes of the complementary protection provisions of the Migration Act is higher than the 'real chance' test for the purposes of the Refugees Convention. I have considered, too, that the risk must be personal to [the Applicant]. As outlined in Part B above, I consider that [the Applicant] is particularly vulnerable to extortion and/or forcible recruitment by militia groups in Mogadishu because of his personal circumstances as a mentally unwell young man of fighting age, who has no connections in Somalia and has limited knowledge of Somali society and language. Having reconsidered the country information set out in Part B, Section 4 above, I am satisfied that he would be more likely than not to suffer this significant harm if returned to Mogadishu. I do not consider that an internal flight alternatively is reasonably available to him. (Emphasis added; footnotes omitted). 17 In making those findings, the assessor relied upon a number of sources of country information. The Applicant submits, and the Minister does not contest, that this information included: • A UK Home Office report which said: ... persons experiencing mental illness are typically kept in chains and may be subjected to traditional healing rituals. • An Integrated Regional Information Networks report which said "Somalia has had no functioning government since January 1991 …"; • An Immigration and Refugee Board (Canada) report which indicated that those who refused to join Al Shabaab were punished by amputation; • A Danish Immigration Service Report which indicated that people cannot rely on the Somali State for protection and instead turn to traditional clans or militias, that returnees would need connections in order to feel safe and that returnees are subject to threats and extortion from militia groups. (Footnotes omitted). 18 As noted above, the Applicant's representatives have provided several outlines of submissions since 2014. All were before the Minister. Each set of submissions included a representation that in view of the ITOA, Australia owed the Applicant non-refoulement obligations. 19 In the final outline of submissions, the Applicant's representatives specifically asserted that the ITOA findings remained applicable notwithstanding the passage of time. They relied in that regard on information from Human Rights Watch, Amnesty International and the International Organization for Migration. That information indicated that - for example - there were 2.7 million internally displaced people in Somalia; that Al Shabaab continued to be involved in forced recruitment, arbitrary attacks and extortion; and that due to drought, millions of people were experiencing emergency levels of food insecurity. 20 Other, more specific, representations advanced included claims that: Material from the United Nations Human Rights Commission indicated that the situation in Somalia remained volatile and that the government was unable to maintain control over key areas. Material from Human Rights Watch and the United Nations Humanitarian Coordinator indicated that many people were displaced and subjected to the threat of rape, forced evictions, clan-based discrimination, and acute food insecurity. Having no connections in Somalia, the Applicant was likely to become a displaced person if returned. He also faced a strong likelihood of being destitute, and a real chance of being unable to subsist. The Applicant's representatives in that regard drew attention to material from the Department of Foreign Affairs and Trade indicating that security incidents and crime were common in Somalia; that Al Shabaab remained very active; that there was a high number of internally displaced persons; and that persons without financial resources or clan connections (such as the Applicant) would lack safety and access to basic necessities. Material from Human Rights Watch indicated that as a forced returnee, the Applicant would be vulnerable to recruitment by Al Shabaab. As to the Applicant's mental health issues, material from the Department of Foreign Affairs and Trade indicated that Somalia's policy in relation to returnees was that persons "in need of psychological health and mental health support" could not be returned. Further, in view of his circumstances the Applicant "almost certainly will not be able to access any of the scarce service and medical supports in Somalia" as are available. 21 The Applicant also made representations on his own behalf. Relevantly, he claimed: My father was one of the original administrators of the deposed government. He helped our family to flee to Kenya, returned to Somalia and died in the civil war. I believe that my name would lead to persecution, or kidnapping. 22 The Applicant later expanded on that representation as follows: Please understand that if you send me back to Somalia you would only be sending me to my death. I don't remember much about Somalia at all. I barely speak the language and the civil tribal war is unresolved, and because of my father being a high ranking official in the previously deposed government who has made himself a lot of enemies. You could be certain that someone would be happy and only to eager to take out their revenge on his son. 23 It should be noted that in the ITOA, the assessor had addressed similar representations advanced by the Applicant as follows: Non-refoulement obligations finding ... As noted in the IOHCA of 8 June 2010, there is no evidence to corroborate the claim relating to [the Applicant's] late father's political activities. I do not have scope in this assessment to invite him to substantiate this claim. In the absence of a procedural fairness mechanism, and without any corroborating evidence before me, I am not able to make a finding on the credibility of this claim. In any case, for the reasons set out in Parts B and C below, I consider there to be sufficient, objectively known information about [the Applicant's] circumstances to establish that Australia's non-refoulement obligations are engaged in his case. I have restricted this assessment to a consideration of his particular vulnerabilities in connection to his mental illness; his lack of any connections in Somalia; and his limited familiarity with Somali society and language. Part B - Assessment of Non-refoulement Obligations under the Refugees Convention … [The Applicant] fears being killed in Somalia. For reasons set out at part B, Section 4 above, I considered that he would be vulnerable to extortion and forcible recruitment by an illegal armed group if he returns to Somalia. As such, he had a well-founded fear of persecution in Somalia without needing to address his fear of being killed. Similarly here, I am satisfied that the extortion and forcible recruitment [the Applicant] could face in Somalia involves cruel or inhuman treatment, as well as degrading treatment as defined in subsection 5(1) of the Migration Act … … Minister's Decision 24 The Minister found that the Applicant did not pass the character test. The Applicant does not submit otherwise. Under s 501CA(4)(b)(ii), the Minister was therefore permitted to revoke the cancellation of the Applicant's visa only if he was satisfied that there was "another reason" why the original decision should be revoked. 25 The Minister assessed the Applicant's case under the following headings: best interests of minor children; expectations of the Australian community; international non-refoulement obligations; strength, nature and duration of ties; extent of impediments if removed; and protecting the Australian community. 26 It is convenient to reproduce in full the Minister's reasons under the heading "International non-refoulement obligations": 24. [The Applicant] is a national of Somalia. [The Applicant] has made representations seeking revocation of the original decision to cancel his visa on 19 December 2014. 25. I note that [the Applicant's] submissions include that there is a risk that he would suffer the types of harm described in his protection claims if he is removed to Somalia, including: targeting for extortion and/or forced recruitment by militia groups, targeting for physical harm by the political enemies his father made as a high ranking official in the now deposed government; and the wide range of human rights abuses suffered by displaced people in Somalia due to ongoing instability in the absence of a functioning government. 26. I accept that my Department has found that [the Applicant] is a person in respect of whom Australia has non-refoulement obligations. 27. I understand that if I do not revoke the original decision to cancel [the Applicant's] visa, he will be prevent by s 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa. I further understand that, according to the relevant provisions of the regulations, [the Applicant] could only apply for a Bridging R (Class WR) visa in response to an invitation, and that in respect of a Protection visa, he will be prevented by s 48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s 48N that s 48A does not apply to him). 28. I am aware that the statutory consequence of not revoking the original decision is that, as an unlawful non-citizen, [the Applicant] would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable, and in the meantime, detention under s 189. I am also aware that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. 29. I am mindful that even if I do not revoke the original decision, I have a personal non-compellable power in s 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the Applicant's] favour, he will be liable to removal as soon as reasonably practicable in accordance with s 198 of the Act, including to Somalia, having regard to s 197C. 30. I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the Applicant's] criminal offending in considering whether there is "another reason" why the original decision should be revoked. 31. I have also taken into account [the Applicant's] submission in relation to the impact that detention has, and will continue to have, on his health. 32. I take into account [that] [the Applicant's] representative has made submissions in relation to the impact of detention upon [the Applicant]. 33. I note the statement by [the Applicant's] representative that: 'All recent reporting on the security situation in Somalia supports the view that non-refoulement obligations continue to apply for persons sharing a similar profile to that of the applicant. If this is accepted and the Minister again refuses to exercise his discretionary power to revoke the visa cancellation, then the only consequence of that decision is continued detention. As the Minister would be aware, detention can only continue if it is for a lawful purpose and for (an impliedly) definable period. We submit this factor must be weighed by the Minister in his decision making'. 34. I have had regard to an Assessment by the Commonwealth Ombudsman following an interview with [the Applicant] in September 2017. The Assessment noted that [the Applicant] 'has a history of torture and trauma, suicide attempts, post-traumatic stress disorder, depression and drug abuse.' [The Applicant] was noted to have attended counselling in detention, and been provided with methadone treatment following review by an addiction specialist. [The Applicant] was admitted to hospital on 16 January 2017 after 'threatening self-harm and expressing safety concerns related to other detainees'. A psychiatrist reported that [the Applicant] was 'experiencing a situational crisis' and in March 2017 he self-harmed to ensure he would be closely monitored by IDC staff. 35. I note from the Assessment that [the Applicant] was hospitalised with a broken nose and broken finger on 28 March 2017, after being assaulted by a fellow detainee. I have taken into consideration information from [the Applicant's] representatives, that the assailant was subsequently convicted over this incident and sentenced to a term of imprisonment. 36. I am aware that [the Applicant's] placement within Villawood Immigration Detention Centre (VDC) was reviewed in 2017 and he was relocated within the VDC to ensure his personal safety. I note that he continues to be held in the VDC and there is no information before me to indicate any further incidents of self-harm. 37. I note that [the Applicant] has longstanding mental health issues, including depression and Post-Traumatic Stress Disorder (PTSD), and these conditions were likely to be exacerbated by prolonged detainment. I have also considered that [the Applicant] has attempted self-harm in relation to threats against his personal safety. 38. I have considered [the Applicant] has required protective custody both whilst in prison and in immigration detention, and that he has been the victim of assaults in immigration detention. I am mindful that these conditions may exacerbate the hardship [the Applicant] otherwise experiences in immigration detention. I have also considered that, notwithstanding this relocation, given his various mental health issues, [the Applicant's] continued detention is likely to have further negative implications for his ongoing physical and mental health issues. 27 It is also helpful to reproduce in full the Minister's reasons under the heading "Extent of impediments if returned": 47. 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 Applicant] submits he will face if removed from Australia to his home country of Somalia in establishing himself and maintaining basic living standards. 48. I have taken into account that [the Applicant] is a 38 year old man diagnosed with depression and PTSD. I note from the Assessment by the Commonwealth Ombudsman, referred to above, that [the Applicant] has also experienced a history of torture and trauma, suicide attempts, and drug abuse. He has also previously been treated in detention for physical health concerns, including a hand injury, hepatitis C, hypertension, and a perforated ear drum. 49. [The Applicant's] representatives has provided copies of progress reports from International Health and Medical Services (IHMS) in relation to medical services received by [the Applicant] in immigration detention. I note from the progress reports, that [the Applicant] was no longer taking medication for mental health issues in 2015, though requested access to counselling for drug and alcohol issues, and torture and trauma issues. 50. I note that the IHMS reports state that [the Applicant] reported attempting to commit suicide on … four to give occasions prior to his most recent incarceration. I have also taken into account his incidents of self-harm in immigration detention outlined above. 51. I have considered the submissions from [the Applicant's] representative that he no longer speaks the Somali language, and he will become a displaced person in Somalia as he had no family or other supports. I acknowledge that recent human rights reports suggest that 'basic services remain elusive for most people' in Somalia, and it is almost certain that [the Applicant] will be unable to access specialist services for his mental health and medical issues documented above. 52. In light of the political situation in Somalia, his negligible history of employment, his lack of family or social networks in Somalia, and the lack of services to assist him to stabilise his mental health and substance abuse in future, I accept that the prospect of [the Applicant] obtaining employment are low. 53. I have taken into account that there no known social services of personal support networks that [the Applicant] will be able to rely on to assist him in obtaining basic necessities such as food and shelter in Somalia. I also acknowledge that he is highly unlikely to have access to treatment for his mental health and substance abuse issues, and these unaddressed issues will create further difficulties to him establishing basic living standards. 54. Overall, I accept that the impediments to [the Applicant] establishing and maintain a basic standard of living in Somalia are, as his representative submits, 'virtually insurmountable'. I also accept that if [the Applicant] is returned to Somalia, he will experience significant hardship in being separated from his family members who are all in Australia. 55. I have also taken into account the considerations addressed under International Non-Refoulement Obligations, and given his submissions of the fears of risk of harm he faces to his life and safety if he returns to Somalia, I find that [the Applicant's] difficulties he would face on a return to Somalia would be further exacerbated. 28 Having regard, inter-alia, to those considerations the Minister concluded that: 128. 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 Applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor family members, as a primary consideration, and any other considerations as described above. These included his lengthy residence and familial ties, international non-refoulement obligations, impediments to return, and the hardship [the Applicant], his family and social networks will endure in the event the original decision is not revoked. 129. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel [the Applicant'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 Applicant's] Class BF Transitional (Permanent) visa remains cancelled. Grounds of Review 29 In his application filed on 17 February 2020, the Applicant advanced three grounds of review. Only Ground 1 and Ground 3 were ultimately pressed. Ground 1 30 Ground 1 is stated as follows: The Minister constructively failed to exercise his jurisdiction, or otherwise failed to carry out his statutory task, by failing to consider, properly or at all, a substantial and clearly articulated submission of the Applicant. Particulars A. The Applicant made representations that he would experience serious harm in Somalia giving rise to non-refoulement obligations, including that: i. the Applicant would be recognisable because of his father's profile as an administrator in the deposed Somalia government. ii. the Applicant has no ongoing connection to, or protection of, a clan in Somalia. iii. the Somalia State is tenuous, unable to maintain control, and lacks capacity to protect civilians. iv. the Applicant would be kidnapped or harmed owing to his father's political profile. v. the Applicant would otherwise be at risk of being unable to subsist and/or targeted for extortion or forcibly recruited to a militia or Al Shabab. B. In representations, the Applicant placed reliance on an International Treaty Obligations Assessment (ITOA) conducted by the Minister's Department in October 2012 in which: i. evidence was cited of: a. Somalia having had no functioning government since 1991. b. returnees to Somalia being subjected to threats and extortion by local militias; c. persons experiencing mental illness being typically kept in chains and subjected to traditional healing rituals; ii. it was found that the Applicant faced a strong likelihood of harm by militia groups in Mogadishu, including a. targeting for extortion by militia groups; b. forced recruitment by militia groups; c. a heightened risk to the Applicant owing to his mental health; iii. a claim that the Applicant would be killed on return to Somalia was left unresolved. C. The Minister failed to consider those representations, properly or at all, in making his decision. D. Further or alternatively to particulars A-C above, the Minister failed to confront the consequences of his findings that: i. the Applicant is a person in respect of whom Australia has non-refoulement obligations: [26]. ii. the Applicant will be liable to removal as soon as reasonably practicable, including to Somalia: [29]. Applicant's Submissions 31 The Applicant first notes that all the representations advanced on his behalf were supported by country information including material from the Department of Foreign Affairs and Trade, the United Nations High Commissioner for Refugees and Human Rights Watch. He observes that they drew heavily on the ITOA. 32 The Applicant then draws attention to the following passages of the decision of the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar), as well as citing a number of other single judge migration decisions in which similar grounds have succeeded: 37. The Minister's obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request is also consistent with the following observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed): By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. (Emphasis added). 38. 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. 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). 40. That is particularly the case here where representations were clearly made on the respondent's behalf on a significant matter, namely the risk of harm (and serious harm) if the respondent was returned to Somalia given his individual circumstances and the treatment of persons with mental illness in that country. It is difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury because of Somalia's treatment of the mentally ill, which claim was supported by the WHO 2010 report. As Robertson J stated in DOB18 at [190] (with whom Logan J agreed), "the nature and content of submissions made to the Minister" in support of a revocation request under s 501CA(4) is relevant. There had to be an active intellectual engagement with the matters raised on the respondent's behalf relating to the risk of harm. 41. The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute "another reason" for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error (see Viane at [28]-[30] per Rangiah J and at [67] per Colvin J and Ezegbe at [37] per Perram J). 33 The Applicant submits that his application is analogous that which the Full Court considered in Omar. The applicant in Omar suffered from schizophrenia. He claimed that if returned to Somalia, he would be chained and imprisoned as a form of "treatment" for that illness. In determining an application for revocation of his visa cancellation under s 501CA(4) of the Migration Act, the Assistant Minister "noted" this representation. However, the Full Court held that he had nonetheless failed to afford active intellectual engagement to this substantial and clearly articulated claim. This was evident from both his failure to make findings of fact demanded by that representation, and his use of the inapt language "significant difficulties" to describe what the applicant faced on return. He had therefore fallen into jurisdictional error. 34 The Applicant submits that in making the non-revocation decision with respect to his case, the Minister erred in the same way. He accepts that the Minister found that he was a person to whom Australia owed non-refoulement obligations, and "noted" representations that he claimed: … to be at risk of suffering harm in the form of extortion and forced recruitment by militia grounds, harm at the hands of the Applicant's father's political enemies and human rights abuses as a displaced person. 35 The Applicant further accepts that: [i]n the course of consideration of "extent of impediments if removed" at [47]-[55], the Minister accepted that the Applicant would have difficulty obtaining basic necessities in Somalia, would be highly unlikely to receive treatment for his mental health issues, and would face "virtually insurmountable" impediments if returned to Somalia. The Minister also purported to have "taken into account considerations addressed under International Non-Refoulement Obligations", finding for that reason that the Applicant's "difficulties" he would face on a return to Somalia would be further exacerbated. (Footnotes omitted). 36 However, he submits that the Minister "did not consider, much less make findings on" what would actually happen to the Applicant if he were returned. The Minister did not actively engage with or resolve the Applicant's claims that he risked extortion; forced recruitment; or harm at the hands of his father's political enemies. He did not engage with information relied upon in the ITOA indicating that those who refuse to join Al Shabaab may be punished by amputation, and that those with mental illness may be chained and imprisoned. 37 The Applicant further submits that the Minister's reference to him suffering "difficulties" if returned is so inapt in the circumstances that it reflects either a gross misapprehension of his claims, or a failure to contend with the real "human consequences" of refusing his application. 38 The Applicant submits that those issues were not cured by the following finding made by the Minister at paragraph [30] of his reasons: I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the Applicant's] criminal offending in considering whether there is "another reason" why the original decision should be revoked. 39 The Applicant submits that, as in Omar, the Minister: [f]ailed to appreciate the distinction between the content of [his] duty to consider significant claims in support of revocation and its duty to consider Australia's non-refoulement obligations. To resolve the varied and detailed claims made by the Applicant of prospective harm on return to Somalia, it was not sufficient for the Minister to merely accept that the Applicant was a person in respect of whom Australia owed non-refoulement obligations. The Minister was required to, but did not, give consideration in the relevant legal sense to the content of the Applicant's claims of what would happen to him on return to Somalia. The Minister did not acknowledge with any specificity the claims or evidence adduced in support of the claims. The Minister also failed to make findings on material questions of fact related to those claims. (Footnote omitted). 40 Whatever his conclusions with respect to Australia's international obligations, the Minister was required to address what the Applicant asserted would happen to him on return to Somalia and make any material findings of fact in that regard. In failing to do so, the Minister "abdicated his responsibility to squarely confront the human consequences of returning the Applicant to Somalia in the face of non-refoulement obligations accepted to exist". The Applicant's claims were therefore not properly considered in assessing whether there was "another reason" for revocation. That error was material. Accordingly, the Minister fell into jurisdictional error. Minister's Submissions 41 The Minister first draws attention to certain relevant principles: that a decision-maker need not engage in a "line-by-line" refutation of every representation advanced (citing authorities including Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 (Buadromo)); that care must be taken to ensure that consideration of whether there has been "active intellectual engagement" with certain claims or "proper, genuine and realistic consideration" of those claims does not slide into impermissible merits review (citing by way of example Minister for Immigration v Maioha [2018] FCAFC 216; 267 FCR 643 at [42], [45]); and that a finding of a lack of intellectual engagement is not lightly to be made (citing Singh v Minister for Home Affairs [2019] FCAFC 3 at [37]; Navoto v Minister for Home affairs [2019] FCAFC 135 at [99]). 42 With respect to Omar, the Minister emphasises that that decision does not disturb Buadromo. Counsel for the Minister Mr Hill submits that consistently with Buadromo, it is open to a decision-maker not to make a relevant finding of fact in circumstances where: (a) The claim or issue is subsumed within a claim or issue of greater generality; or (b) The decision-maker reasons that "even assuming fact or proposition A, the decision-maker does not accept that fact or proposition B follows". 43 The Minister further submits that Omar should be read in conjunction with the proposition that a finding may be implicit within the reasons that a decision-maker gives (citing Buadromo at [60]; VPKY v Minister for Home Affairs [2019] FCA 1767 at [22]-[23] per O'Callaghan J). 44 Having regard to those principles, Mr Hill submits that in the specific circumstances that were addressed by the Minister the relevant representations were afforded active intellectual consideration by way of what he describes as the Minister's "adoption" of the ITOA findings. 45 For that proposition Mr Hill cites paragraph [26] of the Minister's reasons: 26. I accept that my Department has found that [the Applicant] is a person in respect of whom Australia has non-refoulement obligations. 46 Mr Hill submits that the "only fair reading" of that paragraph is that the Minister accepted that Australia owed the Applicant non-refoulement obligations for the reasons set out in the ITOA. He accordingly submits that paragraph [26] amounts to the adoption by the Minister of the factual findings in the ITOA. He submits that the findings adopted include the ITOA's findings that: (a) the Applicant is at real risk of persecution in Somalia and has a well-founded fear of persecution; and (b) the Applicant is likely to suffer significant harm if returned, and is particularly vulnerable to extortion and/or forcible recruitment by militia. 47 The Minister notes that while the ITOA was conducted in 2012, the Department had confirmed its currency in 2016. Further, its conclusions were accepted in the relevant ministerial briefing to him. 48 Mr Hill accepts that various representations advanced on the Applicant's behalf referred to information that is not addressed in the ITOA. However, he submits that that this was only to "reinforce" the detailed findings set out in that document. To the extent they would otherwise have had significance, their relevance is subsumed in the ITOA's broader general findings. He notes in that regard that the Applicant's most recent submissions contended that the ITOA findings remained applicable notwithstanding the passage of time. 49 Mr Hill submits that the Minister's "adopting" the detailed ITOA findings was an acceptable means of him giving the necessary active intellectual engagement to the relevant representations advanced on the Applicant's behalf. He submits the Court should apply the principle confirmed in Buadromo that a finding may be implicit. 50 Mr Hill accepts that there is case law that draws a distinction between consideration by the Minister of whether Australia owes an applicant non-refoulement obligations, and consideration of the applicant's underlying factual claims to fear harm. However, he distinguishes the cases that the Applicant cites in that regard (being DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [193]; Omar at [34])(f); and GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31](b)) on the basis that in those cases the decision-maker had not decided whether or not the applicants were owed non-refoulement obligations. By contrast, here: … the Minister's finding in Reasons [26] that Australia owes non-refoulement obligations in respect of the Applicant contains within it findings as to both the level of harm (it amounts to serious or significant harm), and the extent of risk (at least a real risk). Indeed, on the level of risk, the Minister can be taken to have adopted the ITOA's findings that the risk was more likely than not to eventuate … 51 Mr Hill thus submits that that the Minister had acknowledged the significance of his (implied) findings at the human level. At paragraph [28], the Minister explicitly recognised that not to revoke the cancellation decision was likely to have the consequence that the Applicant would be removed to Somalia in breach of Australia's non-refoulement obligations. Mr Hill submits that the Minister confronted that circumstance, and took it into account at paragraph [30]. 52 Mr Hill finally submits that in any case, the asserted error could not have been material. That, he submits, is because the Minister gave Australia's international non-refoulement obligations the maximum weight possible. He had accepted both that those obligations were owed, and that they were irrelevant under s 198 of the Migration Act (by virtue of s 197C). Having confronted the resulting practical consequence of his decision, the Minister nonetheless held that the protection of the Australian community outweighed that consideration. Therefore, Mr Hill submits, there is no realistic possibility that considering any of the representations that the Applicant identifies might have led the Minister to reach a different conclusion. The Section 48A Sub-Issue 53 An issue raised in the Minister's submissions but dismissed as not being of significance was whether the Minister may have misstated the law in his reasoning at paragraph [27]. 54 Paragraph [27] of the Minister's reasons was as follows: 27. I understand that if I do not revoke the original decision to cancel [the Applicant's] visa, he will be prevent by s 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa. I further understand that, according to the relevant provisions of the regulations, [the Applicant] could only apply for a Bridging R (Class WR) visa in response to an invitation, and that in respect of a Protection visa, he will be prevented by s 48A of the [Migration] Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s 48B that s 48A does not apply to him). 55 Mr Hill's written submissions noted that a Class BF Transitional (Permanent) Visa might not satisfy the definition of a "protection visa" in s 48A(2) of the Migration Act. However, on behalf of the Minister he submitted that any legal error made in that regard was entirely inconsequential because that the Minister had not placed any significance upon any perceived ability of the Applicant to apply for a protection visa. The error, if made, was immaterial. 56 In oral submissions, Mr Hill expressly conceded that a Class BF Transitional (Permanent) Visa was not within the class of (protection) visas to which s 48A applies. He accepted that the Minister was therefore wrong to have reasoned that, subject to s 48B, the operation of s 48A would preclude the Applicant from making a future application for a protection visa. 57 However, Mr Hill submitted that this legal error was either entirely inconsequential or favoured the case advanced by the Minister. That was because the actual position in which the Applicant had been left in consequence of the Minister's decision was less final than the Minister had wrongly understood it to be. The Applicant was not prevented by s 48A from applying for a protection visa. He retained the right to do so. The Minister thus had overstated, rather than underestimated, the gravity of his conclusions. Accordingly, the Minister's mistake could not support a contention that he could have come to a different decision had he not fallen into that error. 58 Counsel for the Applicant, Mr White, expressly accepted that the fact that the Minister had made that legal error was irrelevant to the Court's task of determining the grounds of review. 59 I accept that the s 48A error made by the Minister is not material to the disposition of Ground 1. I will return later to whether that is similarly open to be assumed with respect to Ground 3. Consideration 60 Both parties accept that there are two aspects to Ground 1. 61 The first aspect concerns whether the Court is entitled to find that the Minister's reasons at paragraphs [26] and [30] demonstrate, as the Applicant submits, that the Minister failed to consider the Applicant's representations as to what his fate might be if he were forced to return to Somalia: beyond his anodyne acceptance that his Department had earlier concluded that non-refoulement obligations were owed to him. 62 The second aspect of Ground 1 needs to addressed only if the Court accepts Mr Hill's submission that the Minister's reference in paragraph [26] to his acceptance that his Department had found that the Applicant was a person in respect of whom Australia had non-refoulement obligations, fairly read, impliedly conveyed the meaning: "I accept the finding of the Department, for the reasons given by the Department". Assuming that to be a fair reading of the Minister's decision, the second aspect of Ground 1 concerns whether even in that circumstance there nevertheless was a significant and plainly articulated representation regarding the risk of the Applicant being killed if he was compelled to return to Somalia to which the Minister had not given consideration: simply because it had never been the subject of a finding by his Department. 63 Mr Hill submits that there is no substantive dispute between the parties as to the legal principles that govern the disposition of Ground 1. I accept that to be the case. I do not take Mr White to dispute that in his submissions Mr Hill correctly identifies the effect of the case law as referred to at [41]-[43] above. 64 I therefore turn to the first aspect of Ground 1 with those principles in mind. The question is deceptively simple: how should what the Minister stated in two brief paragraphs (being paragraphs [26] and [30]) fairly be understood? 65 The only reference the Minister makes to the Applicant's representations as to the suffering of which he would be at risk if he were forced to return to Somalia is as below: 25. I note that [the Applicant's] submissions include that there is a risk that he would suffer the types of harm described in his protection claims if he is removed to Somalia, including: targeting for extortion and/or forced recruitment by militia groups, targeting for physical harm by the political enemies his father made as a high ranking official in the now deposed government; and the wide range of human rights abuses suffered by displaced people in Somalia due to ongoing instability in the absence of a functioning government. 66 That is followed in the Minister's reasons by the following brief statements: 26. I accept that my Department has found that [the Applicant] is a person in respect of whom Australia has non-refoulement obligations … … 30. I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the Applicant's] criminal offending in considering whether there is "another reason" why the original decision should be revoked. 67 As a matter of first impression, the arguments that the Applicant advances are compelling. On the face of his reasons, the Minister makes no findings as to any specific(s) of the representations made by the Applicant. All the Minister explicitly does is to accept (because his Department had so concluded) that Australia has non-refoulement obligations in respect of the Applicant. 68 However, as noted, Mr Hill submits that what is plausible on first impression is less so once it is accepted that an inference may properly be drawn that what appears in the Minister's reasons at paragraph [26] is responsive to the representations the Applicant made which the Minister had summarised at paragraph [25]. The result, he submits on behalf of the Minister, is that the only fair reading of paragraph [26] is that he should be understood to have expressed that he accepted not only his Department's conclusion that the Applicant was owed non-refoulement obligations but also its findings in the ITOA as to the harms the Applicant was at real risk of suffering if returned to Somalia. Those were the same risks as those that the Applicant identified and pressed in his later representations to the Minister. By so adopting the findings in the ITOA, the Minister had sufficiently discharged his duty to engage in an active intellectual process with respect to those significant and clearly expressed relevant representations made by the Applicant in support of his revocation request. 69 For the moment, I put to the side the issue of whether that might or might not plausibly be the case with respect Applicant's representation that he would be targeted for physical harm by the political enemies that his father had made as a high ranking official of the former (deposed) government of Somalia. 70 Otherwise, the submissions advanced on the Minister's behalf by Mr Hill should be accepted. As a matter of principle, there would appear to be no reason why the Minister cannot give proper consideration to a representation by adopting detailed (and favourable) findings of his Department: assuming those findings are fully responsive to the scope of an applicant's claims. Mr White does not suggest that the Department's findings do not satisfy that description: save in respect of the Applicant's claims regarding his father. That is hardly surprising, as the Applicant had made his representations on the basis that the findings in the ITOA in those regards should be accepted. Further, as Mr Hill rhetorically asks, why would the Minister have referred with approval to the conclusion reached by his Department if he did not also approve of the reasons given for that conclusion? 71 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Liang), Brennan CJ, Toohey, McHugh and Gummow JJ approved the approach adopted by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 (Pozzolanic), requiring a "beneficial construction" of the reasons of a decision-maker. Their Honours stated (at 272) that: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 72 The Minister undoubtedly was required to engage with the substance of the Applicant's representations. However, an administrative decision maker's reasons need not take the form of a judgment of a court. The Minister's reasons are to be read "fairly and broadly" and are not to be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Liang at 272. 73 The propositions established in Pozzolanic and Liang remain good law. While I regard the question as finely balanced, I am satisfied that the construction of the Minister's reasons for which Mr Hill contends is, for the reasons he submits, both open and plausible. Having regard to the principle expressed in Liang, if a "beneficial construction" is open on a fair reading of a decision when read as a whole that construction is to be preferred. 74 I acknowledge that the Minister never expressly states that he accepts the ITOA's findings. The Applicant submits that the Minister thereby failed to confront the real human consequences that faced him if returned to Somalia (see Hands v Minister for Immigration [2018] FCAFC 225; 267 FCR 628 per Allsop CJ at [21]). However, not every finding of an administrative decision maker needs to be explicitly recorded: Buadromo at [60]. If the Minister's reasons read as a whole are given a "beneficial construction", such a consideration may be understood to be subsumed by another finding. In the present case, that finding is the Minister's explicit acknowledgement that in consequence of the decision he had reached the Applicant would be detained until he was returned to Somalia: notwithstanding that that outcome would cause Australia to violate its international obligations in respect of the risks of significant harm facing him as had been found to exist in the ITOA. That there was a flaw in the Minister's reasoning about the options potentially available to the Applicant in those circumstances (see [53]-[58] above) does not gainsay that the Minister did make an explicit finding involving the recognition of the significance of the human consequences as he (albeit imperfectly) understood would follow. 75 In the quite unusual and specific circumstances of this review I reject the proposition that the Applicant can demonstrate that the Minister fell into legal error because his reasons, read fairly, reveal that he had regard only to the formal conclusion of his Department. 76 However, I reject the submissions Mr Hill advances on the Minister's behalf in respect of the second aspect of Ground 1. 77 Mr Hill frankly accepts that the Minister's case as to the second aspect of Ground 1 "rests wholly" on the proposition that the Applicant's representation that he would be at risk of being killed if compelled to return to Somalia because of his father's role in its former government was dealt with sufficiently by his Department in the ITOA and, by inference, by the Minister having regard to his adoption of all of his Department's findings at paragraph [26]. 78 That submission directs attention to the issue of what was or were the Department's actual "finding" or "findings" with respect to that particular representation. It will be recalled that the Department's reasoning in the ITOA (which I am asked to infer the Minister adopted) in that regard was as follows: As noted in the IOHCA of 8 June 2010, there is no evidence to corroborate the claim relating to [the Applicant's] late father's political activities. I do not have scope in this assessment to invite him to substantiate this claim. In the absence of a procedural fairness mechanism, and without any corroborating evidence before me, I am not able to make a finding on the credibility of this claim. In any case, for the reasons set out in Parts B and C below, I consider there to be sufficient, objectively known information about [the Applicant's] circumstances to establish that Australia's non-refoulement obligations are engaged in his case. I have restricted this assessment to a consideration of his particular vulnerabilities in connection to his mental illness; his lack of any connections in Somalia; and his limited familiarity with Somali society and language. Part B - Assessment of Non-refoulement Obligations under the Refugees Convention … [The Applicant] fears being killed in Somalia. For reasons set out at part B, Section 4 above, I considered that he would be vulnerable to extortion and forcible recruitment by an illegal armed group if he returns to Somalia. As such, he had a well-founded fear of persecution in Somalia without needing to address his fear of being killed. (CB 100). (Emphasis added). 79 Mr Hill submits that the Minister's acceptance of those "findings" is sufficient to have discharged the Minister's responsibility to "consider" the Applicant's representation that there was a real risk that he would be killed if forced to return to Somalia, having regard to his late father's political activities. Mr Hill submits that the Minister's duty to consider a clearly expressed and substantial claim does not extend to a duty to reach an affirmative conclusion in favour, or in rejection, of that claim. In some instances, a claim may remain incapable of being determined one way or the other even after it has been given proper and thorough consideration. That, Mr Hill submits, is what the Department concluded in the ITOA when the Applicant's claims were before it. It was open to the Minister to have adopted that conclusion. 80 However, the duty to construe a decision maker's reasons beneficially does not authorise a reading beyond the plausible. I reject that it was open to the Minister to adopt any "finding" by his Department going to the merits of this particular significant representation. 81 The words in bold at paragraph [77] of the ITOA make it transparently clear that rather than making any such finding, the Department explicitly refrained from addressing the issue of whether the Applicant's fear that he would be killed if he had to return to Somalia was justified. 82 There undoubtedly was a significant and clearly articulated representation before the Department to that effect in relation to the ITOA. However, critically in regard to this matter, the ITOA expressly reasoned that it was not required to make findings about it. 83 A claim expressly excluded from those addressed cannot, by any stretch of the English language, be understood as one that the decision maker has "considered". 84 The observation made by the Department in the ITOA that the Applicant's claim could not be corroborated was not a finding as to the merit of that claim. It was merely an observation made in a specific context, having regard to the reasoning of an International Obligations and Humanitarian Concerns Assessment conducted some years earlier (CB92). 85 In short, the ITOA had made no "finding" with respect to the representation in question that the Minister could adopt as his own. 86 Returning to the present application, there is no dispute that the Applicant made a clear and significant representation to the Minister that if he had to return to Somalia he would be killed because of his kinship with his father who had held high office in the regime that had formerly governed that country. That representation was clearly advanced in support of his submission that there was "another reason" why the Minister should be persuaded to revoke the earlier revocation of his visa. 87 Even assuming that the Minister was entitled (as I have, with some hesitation, concluded he was) to adopt those findings that were made by his Department in the ITOA, the Applicant's representation that he had a well-founded fear he would be killed had never been "considered" in the ITOA. This claim was never the subject of a finding. There thus was nothing the ITOA as would permit Mr Hill plausibly to submit that the Minister had, by adopting its conclusion and findings, discharged his duty to engage in an active intellectual process with respect to that significant and clearly expressed relevant representation made by the Applicant in support of his revocation request. 88 The Applicant's clearly and fully articulated representation that he might be killed could not simply be ignored. If authority is required, I would respectfully adopt what Charlesworth J observed in Hernandez v Minister for Home Affairs [2020] FCA 415 at [26] with respect to representations made by the applicant in that case that if returned to El Salvador he risked being kidnapped by the Mafia: 26. The circumstance that the claims were not supported by objective country information does not render them insignificant so as to relieve the Minister of the obligation to consider them. The absence of corroborative evidence may legitimately bear on the manner in which such claims are considered and determined, but could not (at least on the facts of this case) justify the issue raised in the claim being ignored. 89 In any event, in this instance I am satisfied that there was no want of contextual material or country information. There was material before the Minister which, if accepted, was capable of supporting the credibility of the Applicant's account regarding the political history of Somalia. That material was also consistent with his account as to why he might be targeted because of his father's history. 90 The Minister had before him (through the ITOA) country information that Somalia had had no functioning government since January 1991 when former President Siad Barre had been ousted (CB96). 91 The Minister had before him (through the ITOA) advice from his Department that the Applicant's family had fled to Kenya in 1991 due to the outbreak of civil war in Somalia (CB92). 92 The Minister had before him (through the ITOA) advice from his Department that the Applicant's father and baby sister had been killed en route to Kenya (CB92). 93 The Minister also had before him the sentencing remarks in The Queen v [the Applicant] dated from 2002. In those remarks, the sentencing Judge had made the following findings. Your father was a commanding officer in the Somali Army … During the time you were growing up in Somalia there was a civil war, to which you and other members of your family were exposed … Your father fled the army and took the family to Kenya … (CB 81). 94 The proposition relied on by the Applicant that his father had held such a position, understood in context, was thus not a recent invention. It came with that established provenance. The truth of his representation had been accepted in judicial proceedings as long as 18 years ago. The timing of what occurred might also be thought consistent with the representation he made. Moreover, that the risk he feared might plausibly extend beyond direct harm to his father could be thought to be consistent with the ITOA's acknowledgment that not only his father but also his baby sister had been killed while fleeing to Kenya. 95 The Applicant's representation that he would be at risk of being killed because of his father's history with the former regime was not facially implausible. It was a clearly articulated and significant representation that the Minister was required to, but did not, consider. 96 That is not to suggest that only one outcome was possible. Subject to legal unreasonableness, the merits were exclusively in the domain of the Minister. However, the Minister's decision must be set aside because the task required by law was never undertaken. 97 A failure to give consideration to a clearly articulated and significant representation constitutes jurisdictional error: Omar. There can hardly be a more significant representation than that the person advancing it will be killed. Mr Hill does not submit that the error, if made, was not material. For completeness, I accept that it was. 98 I uphold Ground 1 on that basis. Ground 3 99 Ground 3 is stated as follows: In purporting to discharge his function, the Minister acted unreasonably or on an irrelevant consideration by his reliance on the prospect of the applicant being granted a visa under s 195A of the Act. Particulars A. In light of the Applicant's criminal history, the Minister concluded that the Applicant represented an unacceptable risk of harm to the Australian community and that protection of the Australian community outweighed any other considerations in favour of revocation of the mandatory cancellation: [128]. B. In reliance on the conclusions described in Particular A above, the Minister decided not to revoke the mandatory cancellation. C. In reaching his decision, the Minister took into account the prospect that he had a personal non-compellable power under s 195A of the Act to grant a visa to the Applicant if considered to be in the public interest to do so: [29]. D. The Minister acknowledged that if her were to not consider exercising his power under s 195A, the Applicant would be liable to removal as soon as reasonable practicable: [29]. E. No Minister, acting reasonably, having reached the conclusions described in particular A and having made the decision described in Particular B, could consider, at the same time, that another visa had any prospect of being granted before the removal of the Applicant as soon as reasonably practicable. F. Alternatively, in light of the conclusions described in particular A and the decision described in particular B, the consideration described in particular C was an irrelevant consideration. Applicant's Submissions 100 The Applicant submits that the following two findings made by the Minister are irreconcilable: 29. I am mindful that even if I do not revoke the original decision, I have a personal non-compellable power in s 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the Applicant's] favour, he will be liable to removal as soon as reasonably practicable in accordance with s 198 of the Act, including to Somalia, having regard to s 197C. … 128. 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 Applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor family members, as a primary consideration, and any other considerations as described above … 101 The Applicant submits that there was no realistic possibility of a visa being granted under s 195A. Any consideration by the Minister of whether to exercise that power would confront the same conclusion: that the Applicant represented an unacceptable risk of harm to the Australian community. 102 The Applicant notes in this regard that at the time the decision was made the Minister had in fact indicated to his Department that he did not intend to exercise his non-compellable power under s 195A. This submission refers to the following part of the pro forma form accompanying the Minister's reasons for decision: If you do not revoke the cancellation of [the Applicant's] visa, indicate if you would like to consider alternative management options, which encompass the grant of another visa under s 195A, noting that if you do not wish to consider whether to grant [the Applicant] a visa under s 195A, he would need to be removed from Australia as soon as reasonably practicable. 103 The form identifies four options which can be circled by the Minister: s 195A; s 195AB; no submission required; and please discuss. The Minister circled "no submission required" (CB2). 104 In advancing this ground the Applicant relies on the following passages of the decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19), a case which in his submission is "relevantly indistinguishable" from the present application: 46. The Minister's reasons at [94]-[97] appear to be an attempt to lay the groundwork for keeping the applicant in indefinite immigration detention contrary to ss 197C and 198. That is why he simply referred to the possible grant of another substantive visa if he (the Minister) determined either to grant a visa under s 195A or, pursuant to s 48B, that s 48A would not operate to prevent an application for such a visa. Yet, that speculation about the possibility of the applicant being able to apply for another visa, did not begin to engage with the Minister's decision, under s 501(1), to refuse to grant the protection visa because of the risk that he found the applicant to pose to the Australian community were he to hold a protection visa. That risk and the Minister's concerns about it could not change if the applicant applied for any other visa. 47. The Minister had to engage in an "active intellectual process" in deciding whether any reasonable or rational change could occur to the applicant's circumstances and the risk that the Minister found he posed in the period allowed by ss 197C and 198 for him, first, to lift the bar under ss 48B or 195A and, secondly, to grant or refuse the applicant any other visa: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 at [76] per Allsop CJ, Kenny and Snaden JJ, applying Telstra 176 FCR at 181-182 [106]. The Minister had to act in each of those respects "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself": Graham 263 CLR at 30 [57]. As I said in Telstra 176 FCR at 182 [107]: Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR 229 at [102]): It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them. (emphasis added) 48. No Minister, acting reasonably, having made the decision under s 501(1) to refuse the applicant the protection visa he had sought, could consider, at the same time, that an application for another visa had any prospect of being granted before the removal of the applicant had to occur as soon as reasonably practicable after that refusal. That is because the risk of harm to the Australian community from the grant of the visa, on which the Minister based his decision, is necessarily inherent in a grant of any other visa, since a visa allows its holder to be in the community. 49. The Minister's duty required him to engage in an active intellectual process and to reason through the inevitable consequence of his findings (at [115]-[118]) that the potential harm that could occur by granting the, and necessarily any other, visa to the applicant "is so great that any likelihood that it would occur represents a significant risk to the Australian community" and (at [117]) that this risk was "unacceptable" (at [118]) (emphasis added). That reasoning exposed the lack of any active intellectual engagement with each of the legal and the practical consequences of the refusal to grant the protection visa when the Minister expressed his animadversions in [94]-[97] about the possibility of the grant of a bridging, or of some other substantive, visa: cf. Telstra 176 FCR at 181-182 [106]-[107]. It follows that the Minister's reasons at [94]-[97], dealing with the possibility of the future grant of other visas, amounted to him taking into account an irrelevant consideration or constructively failing to exercise his power on a correct understanding of the law. The Minister had, but failed, to address squarely in his reasons that the inevitable consequence of his assessment of risk, if he were to refuse to grant the visa under s 501(1), was that the applicant would have to be refouled as soon as reasonably practicable in accordance with ss 197C and 198 because there was no reasonable basis on which the grant of any other visa could occur having regard to that assessment of risk. 105 The Applicant adopts that reasoning. He further submits that the Minister's error (whether it be regarded as legal unreasonableness, or taking into account an irrelevant consideration) was plainly material. Specifically, the Applicant submits that the error with respect to s 195A of the Migration Act may explain what he asserts to be the Minister's failure to squarely confront the human consequences of his decision as addressed under Ground 1. Minister's Submissions 106 As a matter of record, Mr Hill submits that BAL19 was wrongly decided. He further notes that that decision is presently the subject of an appeal. However, he does not press the submission that I should hold that decision to be plainly in error. That is because, he submits, it should be distinguished. 107 Mr Hill submits that this ground misunderstands the effect of paragraph [29] of the Minister's reasons. Mr Hill accepts that contemporaneously with the making of the decision under review, the Minister also made a decision not to exercise the power in s 195A of the Migration Act. He accepts that circumstance having regard to the pro forma form, addressed above at [102]-[103]. However, he submits that paragraph [29] of the Minister's reasons does not indicate that he relied on the prospect of a visa being granted under s 195A. He submits that this paragraph merely establishes the relevant context for the decision by identifying the various consequences that it might in theory have. 108 Thus in oral argument Mr Hill submitted: MR HILL: … Paragraph 24 of [BAL19] sets out the reasons in that case and comparing it to this case, in my submission, in [BAL19] the reasons at 93 – so your Honour sees that in paragraph 24 of the judgment there's an extract of the reasons between paragraphs 91 and 97. So in paragraph 93 is the representation that the Minister's responding to. The submission that the applicant will be subject to indefinite detention. I've taken the opening and the last sentence of paragraph 93 of the reasons, your Honour. So that's a key point. That's the representation the Minister in BAL19 is responding to. So when the Minister says certain things, it's vital to know what submission or representation the Minister is responding to, in deciding what words mean. In paragraph 94, the first bolded sentence does not appear in the Minister's reasons. In our case, the analogue would be paragraph 28. But I accept actually, on my submission, it's clearly correct that in paragraph 95 of the reasons in [BAL19], the first sentence there, the bolded sentence, is absolutely critical. The Minister says: I have noted that the obligation to remove the applicant would not apply if he is granted another visa. So that is a statement by the Minister raising the possibility of another visa, and we don't have that statement in our reasons. HIS HONOUR: Yes, well I see the distinction you're making. MR HILL: So it's true that the reasons in 97, by themselves, are very similar to the reasons in paragraph 29 of this case, but you can't take that paragraph by itself. A key is the difference in the representation in paragraph 93, and the statement at the beginning of 95. So that's the submission, your Honour, that there are important differences between the reasons in [BAL19] and the reasons here, which means the conclusion reached by his Honour Rares J is distinguishable. 109 The passages of BAL19 as are referred to in that exchange are as follows: 24. The crucial portions of the Minister's reasons for present purposes are as follows (there was no [96] in the reasons): International non-refoulement obligations 91. I have had regard to submissions made on [the applicant's] behalf regarding his protection claims. I accept my Department's finding that [the applicant], if returned to Sri Lanka, would face a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups. 92. Accordingly, I accept the Department's finding that [the applicant] is a person in respect of whom Australia has international non-refoulement obligations, and that removal of [the applicant] to Sri Lanka would breach those obligations. I also accept that there is currently no known prospect of removal to any other country. 93. I have noted submissions made on behalf of [the applicant] that the combined effect of the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and NKWF and Minister for Immigration and Border Protection [2017] AATA 813 mean that [the applicant] will be subject to indefinite detention as [the applicant] cannot return to Sri Lanka and has no rights to enter any other country. 94. However, I considered that the above claim in relation to the prospects of indefinite detention does not accurately reflect the legal consequences of a refusal decision according to current case law. Rather, the statutory consequence of a decision to refuse to grant [the applicant] a visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen. 95. I have noted that the obligation to remove [the applicant] would not apply if, following my refusal to grant him a TPV, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the applicant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the applicant] as a result of my refusal decision under section 501(1). This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994)), which he could only apply for in response to an invitation. 97. However, I am mindful that even if I refuse to grant [the applicant] a TPV, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the applicant's] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Sri Lanka, having regard to section 197C. (bold emphasis added. The acronym "TPV" in [95] and [97] is short for "temporary protection visa".) 110 Mr Hill also notes that the Minister's decision not to exercise the power in s 195A at the time of making the s 501A decision (as is evidenced at CB2) would not preclude him from deciding to exercise the power in future. He accepts however that the courts "do not speculate on whether the Minister might possibly exercise a non-compellable power in the future" (citing Buchanan J in NBMZ v Minister for Immigration [2014] FCAFC 38; 220 FCR 1 at [123]-[131]). Consideration 111 Having regard to the conclusion the Court has reached on Ground 1, it is strictly not necessary to determine Ground 3. However, the respect that a primary judge owes to courts of appeal usually warrants that task being undertaken, lest he or she be in error. Yet, in this particular instance, while I have set out the respective arguments pressed on behalf of the respective parties I am satisfied that I should refrain from expressing any concluded views. 112 That is because although the parties are agreed that it is of no account, I am far from persuaded that the error Mr Hill concedes the Minister made as is averted to above at paragraphs [53]-[58] is irrelevant to Ground 3. 113 What the Minister reasoned at paragraphs [28] and [29] of his decision appears on my reading to follow consequentially from what the Minister (erroneously) stated in paragraph [27]. Mr Hill submits that the Minister's mistaken view about the absence of any non-discretionary mechanisms as would allow subsequent examination of the Applicant's claims for protection, rather than weakening the Minister's position, makes the Minister's contentions even more persuasive. 114 On the premise for which Mr Hill contends that may (or may not) be so. However, with respect, I am not satisfied that I am entitled to assume that had the Minister not made the error Mr Hill concedes he did at paragraph [27] that the Minister would nonetheless have still reasoned as he did at paragraphs [28] and [29]. He might well have said something more apt in his reasons: and quite different. 115 If the underlying assumption of consistency of reasoning is in doubt, then the basis for either applying or distinguishing Rares J's reasoning in BAL19 with respect to those paragraphs might be thought to be elusive. 116 Had I not come to the decision that this application must be allowed in any event, I would have regarded myself as duty bound to attempt the task of determining Ground 3 notwithstanding the artifice potentially involved. However, as that is not the case I respectfully decline to determine Ground 3 on the assumption (albeit that it is one apparently shared by the parties) that had the Minister not made that legal error he did as to the effect of ss 48A and 48N of the Migration Act he would nonetheless still have reasoned as he did at paragraphs [28] and [29]. Conclusion 117 The application is granted. 118 I will make orders that the Minister's decision not to revoke the cancellation of the Applicant's visa be set aside, and that the Minister determine the application for revocation of the cancellation decision pursuant to s 501CA(4) of the Migration Act according to law. 119 The Minister is to pay the Applicant's costs, as agreed or assessed. 120 There is one further matter which requires the Court's attention. When this appeal was before the Court for hearing, Mr White made an oral application for an order that the Appellant's name be suppressed and substituted for by a pseudonym. Mr Hill supported that application. 121 I made an interim order to that effect. The Court was subsequently provided with an affidavit of Ms Sarah Fisher, the Appellant's solicitor, in support of that application. In her affidavit, filed 18 May 2020, Ms Fisher deposes: 5. On or about 13 May 2020, I spoke to the applicant about a number of matters. During that conversation the applicant expressed concern about his safety in the Villawood detention centre generally and in the event that other detainees obtained a copy of any judgment of the court where his name was evident. He also expressed his continued anxiety about the prospect of being returned to Somalia and asked that his name be substituted by a pseudonym in the court proceeding. 122 Although the foundation for the application is tersely stated, I am satisfied that I am entitled to make an order pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that the name of the Appellant in the published reasons of the Court be substituted for by the pseudonym "CCF20" as he was allocated in consequence of my interim order. 123 Such an order does not prevent the reasons of the Court being understood. It does not significantly entrench on the duty of the Court to safeguard the public interest in open justice (Federal Court Act s 37AE). 124 I am however not satisfied that the premise for any wider suppression or non-publication order has been established. To the extent that the interim order was in wider terms, I therefore revoke it. I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate: Dated: 20 May 2020