Proper, Genuine and realistic consideration
What is “proper, genuine and realistic consideration”
By Lorenzo Boccabella Barrister-at-law, specialist in migration law (11 March 2021)
Decision makers in migration law must give “proper, genuine and realistic consideration to the merits”.
Even though this concept has been around since 1987, it has taken 30 years for it to be universally accepted.
For tribunals failure to do so means that the tribunal has not conducted a proper review. A recent example of the application of the concept is in BYH19 v Minister for Immigration [2021] FCA 157.
This was a case of the AAT miss reading or ignoring a newspaper article. The article had this headline: “BOMB PLACED IN FRONT OF THE HOUSE IN KHAZANA DEACTIVATED” [emphasis added] had a subheading: “Unknown persons had placed explosive material in front of a businessman’s house. Search operation by the Police”
The AAT said in its reasons that no house was mentioned in the article. Anastassiou J said:
“..it was not open to the Tribunal to find that no houses are mentioned in the article, when the headline and sub-heading of the article plainly state that a bomb was placed in front of a house. When reading a newspaper article, the purpose of the headline and sub-heading is to draw the attention of the reader to the subject matter of the article. The headline and sub-heading provide context for the content of the article, and the content should not be read in isolation of the headline or sub-heading…., the Tribunal failed to give real, genuine and proper consideration to relevant material before it, including the headline and sub-heading, and thereby engaged in illogical or irrational reasoning.”
The Appellant explained during the Tribunal hearing…that the house was located across the road from the petrol pump referred to in the body of the article.
In Promsopa v Minister for Immigration [2020] FCA 1480 was about the visa cancellation of the mother of an Australian citizen child. The AAT affirmed the cancellation. But Allsop CJ said:
“59….The finding that the best interests of Ms Promsopa’s child would not be adversely affected by her visa being cancelled was not made on the basis of any engagement with these claims or with the wider question to which I have referred. Instead, the Tribunal took a one-dimensional approach to the child’s best interests, focusing almost entirely on the fact that the father held a temporary visa. In this respect the Tribunal failed to have proper regard to the detriment to the child caused by the decision to cancel Ms Promsopa’s visa……
60….the Tribunal acknowledged that the best interests of the child was a primary consideration. In doing so, it was required to give proper, genuine and realistic consideration to the best interests of the child. The one-dimensional approach taken by the Tribunal in its reasons did not satisfy this requirement.”
In BYH19 the court found that the failure of the AAt to properly consider the newspaper article meant that it went on to find that other evidence that the Taliban had made threats to the applicant was a fabrication. The AAT said in its reasons:
“…[The Appellant] claims his uncle is an example of the kind of retribution the Taliban enacts when its demands are ignored or refused, but I do not accept on the evidence before me that the petrol station bomb had anything to do with [the Appellant]’s uncle, and I consider that [the Appellant]’s efforts to suggest such a link ultimately go against his overall reliability in this matter.”
Anastassiou J said in that regard:
“32….the Tribunal’s adverse credibility finding was a cumulative finding based on its view that the two letters from the Taliban were fabricated and that the newspaper article did not support the Appellant’s claims. The Tribunal’s finding that the article contradicted the Appellant’s claim about there being an attack on his uncle’s house, because “no houses are mentioned in this article”, was not open to the Tribunal. The Tribunal thereby failed to have regard to the headings of the article and failed to read the article and headings as a whole. If that finding were removed from the matrix, a different result could have been reached.”
Allsop CJ in Promsopa said:
“79… if the Tribunal had properly addressed and then assessed the best interests of the child and had not, in its one-dimensional analysis, incorrectly ascertained the substance of the best interests, then the weight to be given to the best interests of the child in the Tribunal’s ultimate reasoning and conclusion could have been different.”
What is “proper, genuine and realistic consideration” may be difficult to assess. What we are now seeing is a greater willingness of the courts to test whether the tribunal has met that standard of decision making.
BYH19 http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/157.html
Promsopa http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/1480.html