Proper, Genuine And Realistic Consideration
TABLE OF CONTENTS
Introduction
In NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 Buchanan J refreshed the concept of the requirement that decision be made giving ‘proper, genuine and realistic consideration’ to the merits of an applicant’s case. He stated:
In NBMZ I referred to the judgment in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, when a unanimous High Court said, with apparent approval (at [26]):
26 In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”.
(Citations omitted.)
123 I take this to be an authoritative statement to the effect that it is not permissible to put to one side, or fail to address, the merits of a particular visa application.
124 In Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713, Gummow J emphasised the necessity to avoid “perfunctory and cursory” consideration of the merits of an application requiring a decision under the Act. It was relevant to his Honour’s analysis in that case that:
in a serious respect, the merits may not properly have been understood when they were evaluated in the light of policy.
125 Notwithstanding the decisions to which the Minister referred in the supplementary written submissions, it is necessary in my respectful view for there to be proper attention to the legal and practical merits of an application when any relevant policy considerations are brought to bear.
126 A central defect in the present case (as in NBMZ) is that the Minister failed to pay regard to some critical legal consequences of his decisions. Those consequences, in my view, may not be ignored or put aside as ones which did not need to be understood and taken into account.