Insights

Forming a statutorily required state of satisfaction: Bettencourt v MICMSMA [2021] FCAFC 172

The Full Federal Court recently unanimously allowed an appeal involving whether a Minister had formed the “required state of satisfaction” before making a decision about whether or not to revoke the, otherwise, automatic cancellation of a permanent resident’s visa based on  the character test under section 501 of the Migration Act 1958 (Cth).

The decision, Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, makes clear that administrative decision makers must properly engage with the material before them and must give considered reasons for their decisions.

The Court found that the Minister failed to “form the required state of satisfaction by reference to the material before him” when making the decision to not revoke the original decision to cancel Mr Bettencourt’s visa ([42]). The Court provided six reasons for its conclusion:

  1. There was no reference in the Minister’s reasons to the terminology used in the representations which described the seriousness of the likely harm to the children ([43]);
  2. There was no description of the quality of the likely harm ([44]);
  3. The reasons focused on immediate distress to the children rather than long-term harm ([45]);
  4. The Minister’s conclusion that the best interests of the children would be best served by the revocation of the decision to cancel Mr Bettencourt’s visa was not explained or evaluated in a way that demonstrated the Minister considered there was likely harm to the children should the decision not be revoked ([46]);
  5. The Minister did not engage in a process where he evaluated the significance of his conclusion that the best interests of the children required revocation of the decision. This indicated he could not have reached the required state of satisfaction to make the decision regarding revocation ([47]);
  6. In circumstances where the Executive is exercising a power with the potential consequence of separating a parent from their child and where the Minister is required to give reasons for his decision, it can be expected that a factor as serious as the separation of a child from their parent should be specifically expressed in the reasons ([48]).

In summary: a decision maker cannot just acknowledge a representation has been made and then accept or reject it. The decision maker must meaningfully engage with the representations put before him and explain how he has taken the submissions into account to reach the ultimate decision.

The article available at this link discusses the decision in more detail.

Grace Devereaux

Higgins Chambers

25 October 2021