Federal Court of Australia

EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 8 September 2020 be dismissed.

2.    The applicant pay the respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    On 28 May 2020, the Minister for Home Affairs exercised his power under s 501(3)(b) of the Migration Act 1958 (Cth) to cancel the applicant’s Class AH Subclass 101 (Child) visa. As will shortly emerge, this was not the first time the applicant’s visa was cancelled under the character provisions in Pt 9 of the Migration Act. His visa had previously been cancelled under s 501(3)(b) in December 2019 by a different Minister. The applicant sought judicial review of this previous decision and, on 28 May 2020, the decision was quashed by consent. On the same day, the Minister who is the respondent in the present proceeding, made the decision to again cancel the applicant’s visa.

2    The sole ground for judicial review is a claim that the Minister failed to give proper, genuine and realistic consideration to the merits of the applicant’s case in making the decision dated 28 May 2020. More particularly, the applicant contends that the period of time available to the Minister to consider the information which the Department of Home Affairs placed before him to assist his decision-making was insufficient to allow him to give the requisite consideration to the merits of the decision (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352; Burgess v Minister for Immigration and Border Protection [2018] FCA 69; 259 FCR 197and Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335).

3    The relevant legal principles which guide a judicial review challenge on this ground highlight the need to pay careful attention to the available evidence relating to the Minister’s decision-making process. For the following reasons, I am not satisfied that the applicant has discharged the onus he carries of demonstrating that the Minister failed to give proper, genuine and realistic consideration to his circumstances.

4    On 24 November 2020, the Court made orders appointing the applicant’s sister as his litigation representative.

Summary of background facts

5    The applicant arrived in Australia in mid-2005. He has lived here ever since.

6    He has a lengthy criminal history, including several firearm offences. It is common ground that he has been associated with several outlaw motorcycle gangs. It is also common ground that he has a diagnosed mental illness which has been a causal factor in his criminal offending. It is also uncontroversial that he has been found to be a person in relation to whom Australia owes protection obligations because he is a refugee.

7    The following findings of fact are based on the extensive affidavit, oral and documentary evidence placed before the Court relating to the decision-making process preceding the decision made later on 28 May 2020 which is challenged in the present proceeding. It is evident from this material that preparations for the Minister’s decision whether to cancel the applicant’s visa for a second time commenced several days before the first decision was set aside by consent. I interpolate that two of the Minister’s witnesses, Mr Joseph Thomas Fleming and Mr Peter Martin Hosking were cross-examined. I do not consider that the cross-examination revealed anything which would stand in the way of the Court accepting their evidence unreservedly.

8    As noted above, the first decision to cancel the applicant’s visa was made on 11 December 2019 by a different Minister, which decision was ultimately set aside by consent by orders made by the Court on 28 May 2020.

9    On 25 May 2020 at 10.13 am, a draft submission to the Minister, draft statement of reasons and the accompanying materials were uploaded to the Department’s HPE Records Manager. The Minister and his private staff did not have direct access to that system.

10    Later that day at 4.43 pm, Mr Nigel Muir (the Assistant Secretary (A/g) in the Department’s Character Assessment and Cancellation Branch) sent an email to Mr Fleming (one of the Minister’s personal staff) and Ms Stephanie Way (the Departmental Liaison Officer) attaching the draft submission and draft statement of reasons. Reference was made to the fact that TRIM links had been emailed with all the attachments earlier that day. The email asked for email confirmation once the submission and supporting documents had been provided to the Minister.

11    On the front page of the submission, next to the heading “Timing”, the submission stated:

The submission is being provided in the event the Federal Court of Australia makes Orders by consent that results in the 11 December 2019 decision to cancel [the applicant’s] visa being quashed. Please review the material at your earliest convenience.

You will be notified when the Court makes its Orders and you may make a fresh decision at your earliest convenience.

12    On Monday 25 May 2020, Mr Fleming spoke to Mr Muir concerning the draft submission. Mr Fleming’s understanding following the conversation was that the Department anticipated that it was likely that the Federal Court would make orders quashing the first decision within the next few days. He also understood that the Department wanted to ensure that the relevant documents would be given to the Minister before the Court made the order to ensure that the Minister had time to consider the material in case he wanted to make a decision shortly after the Court made the order. I accept Mr Fleming’s evidence that Mr Muir told him that there was no problem with the Minister considering the material before the Court made an order.

13    At 5.03 pm, Ms Way sent an email to Mr Fleming, attaching a link to a shared drive with the additional attachments. It was necessary for the documents to be shared with Mr Fleming in this way, as he did not have access to the Department’s internal document systems. Ms Way’s email noted that the matter was “a bit complicated” and would likely need the Minister to have the documents for review in hardcopy tomorrow, with potential signing as early as Wednesday.

14    On Tuesday 26 May 2020 at 12.56 pm, Peter Frank (A/g Principal Legal Officer, AAT & Removals Injunction Section, Migration and Citizenship Litigation Branch) sent an email to Mr Fleming, advising that he would be the point of contact for the applicant’s matter tomorrow and that he would advise if and when the Court made orders quashing the Minister’s decision. Mr Fleming was working that day from the Minister’s city office. The Minister was in Brisbane but was not working at the city office.

15    Mr Fleming sent a reply email at 12.58 pm, asking Mr Frank to call him to advise of the outcome when it occurred.

16    Mr Fleming printed hard copies of the draft submission and draft statement of reasons, as well as the attachments to the draft submission on the morning of 26 May 2020. Mr Fleming then met the Minister and provided those materials to the Minister in a large binder folder at approximately 3.30 pm, prior to another appointment that the Minister had away from the office. At 5 pm, after returning to the office, Mr Fleming sent an email to Mr Muir confirming that the Minister had been given the materials at 3.30 pm.

17    Mr Fleming met with the Minister at a site other than the city office. On handing the Minister the materials, Mr Fleming discussed the matter with him. He told the Minister that the matter involved a character decision relating to a person from a particular country of origin, who had firearms offences and links to outlaw motorcycle gangs. He also told the Minister that the applicant was currently in prison, although he was being held in immigration detention. I also accept Mr Fleming’s evidence that he then used words to the following effect in advising the Minister:

This is a matter that the Department wants you to look at as it is anticipated that the Court will be making orders tomorrow setting aside your decision. The Department has advised that you can look at this material before the Court makes the order. It wants to ensure you have adequate time to review this material before you make any decision. However, you can’t sign the documents before the Court makes the order. I will let you know when that happens.

This evidence, which I accept, makes clear that the Minister was put on notice by his advisors that there was a degree of urgency about the matter and that he could commence considering the material at any time convenient to the Minister.

18    On Wednesday 27 May at 9.53 am, the solicitor for the Minister sent an email to the solicitor for the applicant, advising that the Minister accepted that the first decision was affected by jurisdictional error.

19    At 10.57 am, Mr Frank sent an email to Mr Fleming advising that the consent orders would not be signed on that day, but would likely be signed in the next day or two. On that day, Minister Dutton was working from his city office in the Brisbane CBD, as was Mr Fleming. Mr Fleming recalls confirming with the Minister that he had the folder of documents relating to the applicant, in case the Court made the order. Because the Minister and Mr Fleming had separate offices, Mr Fleming did not observe the Minister during the entirety of 27 May.

20    On Thursday 28 May at 12.02 pm, Mr Frank sent an email to Mr Fleming advising that the orders had been signed by the applicant’s legal representative. At 2.35 pm, Mr Frank sent a further email to Mr Fleming, advising that the Court had now made the consent orders. Following a conversation with Mr Muir, Mr Fleming made changes to the draft submission and draft statement of reasons to insert the correct date of the Court order.

21    On that day, Minister Dutton was working from his Strathpine electoral office. At 3.00 pm, Mr Fleming sent an email attaching the updated documents to Peter Hosking, a Ministerial staff member who was on that day also located at the Strathpine electoral office. He noted that the date of the Court’s order had been changed to 28 May 2020. Mr Hosking immediately printed the documents, including Mr Fleming’s email which identified the changes made to the submission and statement of reasons, and provided them to the Minister. Mr Hosking waited while the Minister read and then signed the documents. The evidence indicates that the Minister spent a little over twenty minutes in reading the Department’s submission and statement of reasons, noting that his attention had already been drawn to the minor amendments so as to insert dates. Mr Hosking then immediately scanned the documents.

22    At 3.26 pm, Mr Hosking emailed Mr Fleming, attaching the signed submission and statement of reasons. At 3.36 pm, Mr Fleming sent the signed documents to Mr Muir and Mr Frank. Mr Fleming also sent Mr Frank a text message stating “Minister has decided to cancel – copy sent via email”.

23    The Minister adduced affidavit evidence which provided details of the large number of decisions made personally by a responsible Minister under Pt 9 of the Migration Act during the period September 2016 – May 2020. The statistics did not distinguish between decisions made under particular provisions in Pt 9, such as s 501(3)(b). Nor did the figures reveal how many decisions the Minister who is the respondent in this proceeding made during that period. The total number of decisions made personally by a responsible Minister under Pt 9 for the financial years 2015-2016 to 2019-2020 (ending in May 2020) were 284, 447, 279, 51 and 110 (respectively), producing a total of 1171 decisions. The applicant objected to this evidence. The evidence was admitted over objection, subject to relevance. In light of the shortcomings with the evidence which were highlighted by the applicant in its objection, I gave the material some, but only limited weight.

The statutory regime summarised

24    The statutory regime relating to the Minister’s personal powers to cancel a visa on character grounds has been described at length in cases such as Carrascalao, Burgess and Chetcuti. It is unnecessary to repeat that analysis here. It is desirable, however, to set out the relevant terms of both ss 501(3) and 501C (which latter provisions confers a power on the Minister to revoke a decision made under inter alia s 501(3)) (emphasis in text denoting defined expressions):

501    Refusal or cancellation of visa on character grounds

…

(3)    The Minister may:

   (a)    refuse to grant a visa to a person; or

   (b)    cancel a visa that has been granted to a person;

    if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

…

501C    Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

  (a)    refuse to grant a visa to a person; or

  (b)    cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the person satisfies the Minister that the person passes the character test (as defined by section 501).

(5)    The power under subsection (4) may only be exercised by the Minister personally.

(6)    If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).

…

25    In contrast with the Minister’s powers under s 501(2), which also relate to the refusal or cancellation of a visa on character grounds, the Minister’s power under s 501(3) may be exercised without providing natural justice. The applicant did not dispute that he failed the character test.

Some relevant legal principles summarised

26    The following relevant legal principles are established by caselaw, including Carrascalao and Chetcuti.

27    First, the Court needs constantly to be alert to the risk that the phrase “proper, genuine and realistic consideration” might draw the Court into an impermissible merits review.

28    Secondly, in considering whether or not to exercise the power under s 501(3), the Minister is obliged by law to engage in an “active intellectual process” in assessing the merits of a particular case.

29    Thirdly, the Court’s assessment of whether the Minister has discharged that legal obligation involves an evaluative judgment, taking into account the available evidence and reasonable inferences. Necessarily each case will turn on its own particular facts and circumstances as established by the evidence. This means that the question whether or not an active intellectual process has been engaged in any particular case is highly unlikely to be resolved merely by comparing the facts and circumstances with other cases. This is not an area where legal challenges are capable of being resolved by a “tick the box” approach.

30    Fourthly, relevant features of the statutory framework relating to s 501(3) include the requirement that the decision be made by the Minister personally and the fact that natural justice requirements need not be satisfied (contrast the Minister’s power under s 501(2)). It is also notable that one of the two explicit preconditions to the power under s 501(3)(b) is that the Minister is satisfied that cancellation is in the national interest. The concept of “national interest” is broad and evaluative, but not unbounded (see Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

31    Fifthly, it is not without significance that, in contrast with the position regarding a right to seek a review in the Administrative Appeals Tribunal of an adverse decision made by a Ministerial delegate under s 501(1) or (2) or 501CA, no merits review right applies to a decision made by the Minister personally under s 501(3)(b). That serves to highlight the practical significance of the availability of judicial review of that Ministerial decision. Needless to say, that does not mean that judicial review is unlimited.

32    Sixthly, although natural justice requirements are not obligatory prior to the Minister making a decision under s 501(3)(b), the Minister is obliged under s 501C to give the affected person notice of the cancellation decision and particulars of “relevant information” (as defined in s 502C(2)) and invite the person to make representations concerning revocation of the cancellation decision within the period and in the manner prescribed in the Migration Regulations 1958 (Cth). The Minister’s power under s 501C(4) to revoke the visa cancellation decision must be exercised by the Minister personally and is enlivened only if the affected person makes representations in accordance with the invitation and the person satisfies the Minister that he or she passes the character test as defined in s 501(1). Significantly, the representations made in response to a s 501C invitation can legally bear only on the question whether or not the person passes the character test. As the Department made clear to the Minster in this case in its submission, it would be futile for the applicant here to make representations under s 501C because it was plain that he failed the character test and would not be able to persuade the Minister otherwise. This may explain why the applicant proceeded here to seek judicial review of the cancellation decision and not apply to the Minister to have the decision revoked.

33    Seventhly, a finding a Minister has not engaged in the requisite active intellectual process will not be lightly made and must be supported by clear evidence, bearing also in mind that the judicial review applicant carries the onus of proof.

34    Eighthly, the displacement of natural justice requirements and the limited scope of representations which an affected person may make in seeking the revocation of a visa cancellation decision under s 501C highlight the need for the power under s 501(3) to be exercised by the Minister “with appropriate care and attention, including by engaging in an active intellectual process in reviewing relevant materials placed before him to assist in the discharge of this significant statutory function” (Carrascalao at [60] per Griffiths, White and Bromwich JJ).

35    Ninthly, it is convenient to set out [61] of Carrascalao, which addresses the extent to which the Minister is entitled to obtain assistance in his or her decision-making task from Departmental officers or his private staff (emphasis in original):

61    In addition to the features of the statutory scheme just identified, it may be accepted that, despite the personal nature of the power, the Minister was entitled to obtain assistance from departmental officers and members of his private staff, including have them prepare summaries of information for review by him. There are, however, at least three qualifications to that proposition:

(a)    any such summary which is materially deficient may give rise to an inference that the decision-making process was not properly conducted by the Minister (see, for example, Williams at [21]-[30]; Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 at [32]-[33] per Tamberlin, Mansfield and Emmett JJ; Roberts v Minister for Immigration and Multicultural Affairs [2004] FCA 739 at [44] per French J; and Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417 (Gbojueh) at [63] per Bromberg J);

(b)    the use of a departmental summary may not be appropriate when what is sought to be summarised is a substantive argument (as opposed to an assertion of fact). Attempts to summarise material of this kind may be fraught, because the manner of the summary may cause some of the substantive force which the document may otherwise have had to be lost; and

(c)    the Minister’s entitlement to have regard to a summary or submission prepared by his Department must take into account any statement or indication in such a document which advises the Minister of the need for him or her personally to consider relevant information in a document which is summarised, as is the case here in respect of the Department’s submissions concerning both Mr Taulahi and Mr Carrascalao.

36    Finally, there is some scope for the rule in Jones v Dunkel (1959) 101 CLR 298 to apply but a distinction needs to be drawn in applying that principle to a Minister as opposed to a member of the Minister’s staff or a Departmental officer. The rule needs to take into account that a Minister of the State has numerous onerous duties and that it would be impracticable for a Minister to spend substantial time in Courts (see, for example, Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507 at [143] per Kirby J and at [284] per Callinan J). Different considerations apply to persons who assist the Minister in the decision-making process. It is also critical to appreciate the limits of the rule in Jones v Dunkel, namely the rule allows that the Court to draw with greater confidence and inference which arises from the existing evidence which is unfavourable to a party who failed to call the witness — it cannot be used to fill evidentiary gaps or convert conjecture into inference (Chetcuti at [91] per Murphy and Rangiah JJ, citing Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1 at [115]-[117] per Gray, Rares and Tracey JJ).

37    In the present proceeding, the Minister did not provide an affidavit or present himself as a witness. It may be noted, however, that in answer to interrogatories filed on 30 April 2021, the Minister said that he could not now recall how much time he spent reviewing the Department’s submission and draft statement of reasons before making his decision on 28 May 2020.

The applicant’s submissions summarised

38    The applicant submitted that, although the Minister had available, in theory, time to give proper, genuine and realistic consideration to the merits of a case, the time that he actually had available to consider this case was fairly limited, in light of his busy schedule. The applicant added that, within the time left over in between his various commitments and the onerous burden of the Minister’s portfolio, it was inherently unlikely that the Minister would consider the matter until he was actually called upon to make a decision. The applicant drew attention to the fact that in that part of the Department’s submission relating to timing, the Minister was invited to review the material at his earliest convenience, but was not expressly told that he should commence consideration of the materials immediately.

39    The applicant also contended that it was important to take into account the special features of his case, including the urgency with which the second visa cancellation decision was made, presumably to avoid the applicant being released from detention given his past outlaw motorcycle connections. Another important factor was that the applicant was a person in respect of whom Australia owed protection obligations and the Minister declined the Department’s offer to provide him with alternative management options. These were the sorts of matters relied on by the applicant in contending that the Minister reasonably ought to have recalled this particular case, contrary to the Minister’s answers to the interrogatories.

40    The applicant contended it must be a rare event for the Minister to receive a large folder of materials “on site” somewhere, to take with him. The Minister was not told that the Court would, as a matter of certainty, quash the decision. (Nor could he be, given the Court’s discretion to refuse to accept minutes of consent order).

41    The matter required a decision at the electorate office, and involved Mr Hosking. These are seemingly rare events.

42    The Minister was reconsidering a decision made by his colleague that had been quashed, which highlighted the administrative seriousness of the matter.

43    The Minister’s reasons claim that he read significant volumes of material. Reading significant volumes of material would stick in one’s mind. The applicant submitted that reading would have lasted several hours, if not consuming the bulk of the Minister’s spare time in between his appointments on 26-28 May 2020. Even for a busy Minister, reading that much material is unlikely to slip from one’s mind, especially given the nature of that material.

44    The applicant emphasised what he described as “striking” features of the merits of his case — he is a refugee, with a serious criminal history and outlaw motorcycle gang links. This called for difficult judgments to be about what to do with him. The Minister’s decision suggests that the Minister expected that the applicant would be removed from Australia. Yet, the Minister also accepted that the applicant is a refugee. That is a heavy decision to have taken. The applicant submitted that, for it not to stick in one’s mind, is implausible.

45    The applicant submitted that, in all these circumstances, if the Minister had read the materials that he claimed to have read, he would remember it. He would at least be able to say “I spent at least xx minutes/hours, or about xx minutes/hours” (accepting that he is not a corporate solicitor “on the clock”). The Minister’s failure to recall even this much seriously harms his case, in light of the principle in Blatch v Archer (1774) 1 Cowp 63 at 65 per Mansfield LJ: see Chetcuti at [89] per Murphy and Rangiah JJ.

46    Finally, the applicant submitted that his case was fortified by the established tendency on this particular Minister’s part, with particular reference to adverse conclusions made in other cases against him personally in relation to the failure to engage in an active intellectual process, as set out in the notice of intention to adduce tendency evidence filed on 15 June 2021. The applicant requested the Court to find that the Minister only spent approximately twenty minutes reviewing the brief and that this was confined to him reviewing the Department’s submission and draft statement of reasons shortly before the decision was made.

Consideration and determination

47    Applying the above legal principles to the applicant’s circumstances, I will now explain why I find that his judicial review challenge fails. These reasons substantially reflect the Minister’s submissions, with which I agree.

48    First, both Mr Fleming’s evidence and contemporaneous documentary evidence establishes that the Minister was in possession of the relevant materials relating to the applicant’s case from about 3.30 pm on 26 May 2020, nearly two days before the impugned decision was ultimately made. The only difference between the draft documents given to the Minister and the final version of the submission and statement of reasons signed by the Minister, was the insertion of the correct date of the Court orders, which in the scheme of things is a relatively minor change.

49    The period of time in which the Minister was in possession of the relevant materials is significantly longer than in other cases where the Court has inferred that the Minister failed to engage in the requisite active intellectual process. The applicant appears to accept that the Minister received the materials at this time and that at least “in theory” the time during which the Minister had the materials was sufficient to give proper, genuine and realistic consideration.

50    Secondly, the clear intention of the Department and the Minister’s advisers in providing the materials to the Minister was that he would commence his consideration before the Court made consent orders. As the email correspondence outlined above demonstrates, the Department took steps to liaise with staff in the Minister’s office (Ms Way and Mr Fleming) to ensure that the Minister was provided with the materials for the applicant’s case, prior to the consent orders being made. In the particular circumstances, there was no legal reason why the Minister could not begin his consideration of the matter prior to the consent orders being finalised.

51    The Department’s intention that the Minister commence his consideration of the materials in advance of the Court’s orders is further reflected in the phone calls between the Department and Ms Way and Mr Fleming. Mr Fleming’s understanding, following a conversation with Mr Muir, was that the Department wanted to ensure that the relevant documents would be given to the Minister before the Court made the anticipated orders to ensure that the Minister had time to consider the material in case he wanted to make a decision shortly after the Court made the order. Ms Way similarly recorded in an email to Mr Fleming her understanding, based on a conversation with Mr Muir, that the Minister would need to have the documents for review in hardcopy the next day, ahead of potential signing as early as the following day.

52    The reason for this urgency is reflected in the draft statement of reasons. In relation to the question whether to provide the opportunity to the applicant to be heard in relation to the cancellation, the draft statement of reasons states that the applicant posed a risk to the Australian community which the Australian community should not tolerate, and that a swift decision following the Court’s orders would allow the applicant to be immediately re-detained, ensuring that the applicant spent little (if any) time in the community.

53    Thirdly, there is clear evidence of the Department’s advice that the Minister commence consideration of the materials and that this advice was conveyed to him. Mr Fleming’s evidence, which I accept, is that when he provided the materials to the Minister, he advised the Minister that the Department wanted the Minister to look at those materials as it was anticipated that the Court would be making orders to set aside the first decision the next day. Moreover, the “timing” section of the draft submission itself makes clear that it was being provided in anticipation of consent orders being made, and the Minister was to review the material “at [his] earliest convenience”. I do not accept the applicant’s submission that it is significant that no direction was given to the Minister by the Department regarding the timing of his decision and his consideration of the materials. Mr Fleming’s evidence is persuasive. Moreover, an experienced Minister such as this Minister would have had no difficulty in appreciating why the material was being briefed to him in advance of the anticipated consent orders as well as the importance of being able to make an informed decision promptly once it was known that the consent orders had been made. Mr Fleming’s advice would have assisted that appreciation.

54    Fourthly, the applicant has not pointed to any aspect of the Minister’s reasons that suggests that he had insufficient time to give proper consideration to the applicant’s case. For what it is worth (noting the limitations of a “tick the box” approach), this highlights an important factual difference between this case and Chetcuti, upon which the applicant placed heavy reliance.

55    Fifthly, it is notable that the Minister not only completed in his handwriting the pro forma parts of the Department’s submission outlining the various options open to him in this case and also signed the 35 page statement of reasons, but he also personally initialled each and every page of the 35 page statement of reasons. It might reasonably be inferred from this step that the Minister had read each of those pages. The absence of the Minister’s initials on each and every page of the detailed Attachments to the statement of reasons does not of itself give rise to an inference that the Minister did not properly engage with that material and/or with the summary of that material provided to him in the Department’s brief. Even if it be the case that the Minister spent only approximately 20 minutes on 28 May 2021 reviewing the Department’s revised submission and draft statement of reasons (see [21] above), this would not ground an inference that these materials were being read by him for the first time.

56    In asking the Court to draw an inference that the Minister departed from the advice of his Department and advisers, namely to review the relevant material before the Court made orders, the applicant appeared to rely on four factors, each of which is rejected.

57    First, the applicant notes that the Minister’s diary shows that he was occupied for large periods during the time that the Minister was in possession of the relevant materials. The applicant argues that it is “inherently unlikely” that the Minister would consider the matter until called on to make a decision, because this would be inefficient for a busy Minister.

58    That submission is rejected. It is contrary to the evidence outlined above, which makes clear that the Department and the Minister’s advisers took deliberate steps to ensure that the Minister had the materials and could commence his consideration beforehand. Although it was not certain that the Court would quash the first decision in accordance with the proposed consent orders, there was no reason to think that the Court would not make those orders. It is more likely that the Minister would have acted on the advice of his Department and advisers to review the materials in advance of the consent orders being made, than that the Minister would ignore that advice. Moreover, the evidence of Mr Fleming in cross-examination indicated that frequently time set aside in the Minister’s diary for particular events may not be all used up and it is not unusual for the Minister to take advantage of such opportunities to attend to other tasks.

59    Secondly, the applicant relies on the fact that the Minister does not remember how long he spent considering the brief before he made the decision to cancel the applicant’s visa, or whether he read the statement of draft reasons before he made the decision to cancel the applicant’s visa. As noted above, the applicant argued that it is implausible that the Minister does not remember reading the material, having regard to its volume and the facts of the case .

60    In the interrogatories, the Minister was asked two very specific questions about his decision-making process. That the Minister does not remember how long he spent considering the matter, or whether he read the draft statement of reasons before he made the decision, is hardly surprising. The decision was made over a year ago. Despite the limitations of the statistical material placed before the Court regarding the number of decisions made personally made by a Minister under Pt 9 of the Migration Act, it may be inferred that the Minister was personally involved in a significant number of visa cancellation decisions. The matters that come before the Minister for his personal consideration are inherently likely to be those involving complex facts and difficult questions of judgment. That is particularly so for personal decisions under s 501(3), all of which require the consideration of the national interest (s 501(3)(d)).

61    In those circumstances, that the Minister does not now remember the specific details of the decision-making process in the applicant’s case provides no basis for inferring that the Minister did not read the materials at all. Even if it is accepted that the applicant’s case had unusual aspects, it does not follow that an adverse inference arises merely because the Minister was unable to recall the amount of time he spent reviewing the Department’s submission and the draft statement of reasons. It is significant that the Minister had in his possession for almost 48 hours the Department’s draft submission and draft statement of reasons, together with all the attachments.

62    Thirdly, the applicant’s reliance on three previous judgments of this Court (namely Carrascalao, Burgess and Chetcuti), which it adduced for the purpose of demonstrating a purported tendency of the Minister not to give proper, genuine and realistic consideration to the merits of the case before him was rejected as inadmissible under s 97 of the Evidence Act 1995 (Cth). The relevant principles governing the admissibility of tendency and coincidence evidence were helpfully discussed by the Full Court in CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; 277 FCR 201. In particular, the Full Court emphasised that evidence could not satisfy the thresholds of relevance or significant probative value in respect of the particular grounds of review in that case given its selectivity (see at [42]-[44] per Jagot, Yates and Stewart JJ). Although those remarks were directed to grounds of apprehended or actual bias, I consider that they are equally applicable here.

63    Moreover, the three previous judgments which the applicant sought to adduce in evidence are judgments in which it was held that the particular Minister failed to give proper, genuine and realistic consideration to the similar matters are insufficient to establish what the applicant claims to be a tendency. That is because there are only three such cases and it may be inferred that they constitute a small fraction of the numerous personal decisions made by the Minister under Pt 9 of the Migration Act since 1 July 2016. There is a significant distinguishing feature of the present case to those three earlier cases, namely that the Minister was provided with the relevant materials two days before the impugned decision was made. Finally, it is notable that unlike Burgess and Chetcuti the Minister was specifically asked by his Department and personal staff members to consider the materials in advance of the anticipated consent orders being made by the Court. For these reasons, I ruled that the proposed tendency evidence was inadmissible.

64    Fourthly, contrary to the applicant’s contentions, this is not an appropriate case in which to draw an adverse inference from the fact that the Minister has not given evidence apart from answering the interrogatories, relying on the principles in Blatch v Archer at 65 per Mansfield LJ and Jones v Dunkel.

65    The rule in Jones v Dunkel is an application of the more general principle in Blatch v Archer that: “All evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted”. The rule permits the Court to draw with greater confidence an inference which is otherwise available on the evidence and which is unfavourable to the party that failed to call the witness, where that failure is unexplained.

66    The rule applies only where there is an unexplained failure to call a witness. However, it is well settled that, in many cases, the absence of a Minister from the witness box will be explicable, having regard to the complex and onerous functions of a Minister which constrains the time available for them to give evidence in individual cases. Further, in the present case, the applicant has had the opportunity to administer interrogatories to the Minister, and the Minister’s evidence is that he does not remember how much time he spent considering the matter. Both the ministerial advisers who were involved in the Minister’s decision-making process have provided evidence and were cross-examined.

67    Further, while the rule in Jones v Dunkel allows an adverse inference to be drawn more readily, as stated in Chetcuti at [91] per Murphy and Rangiah JJ, “it cannot be used to fill an evidentiary gap or convert conjecture into inference”. The facts proved “must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture” (Chetcuti at [95] per Murphy and Rangiah JJ).

68    Finally, to the extent that there is a suggestion of a broader argument that the Minister did not have sufficient time to give proper consideration to the applicant’s case even if he did commence his consideration before the consent orders were made, and even if this suggestion falls within the applicant’s pleaded case (which is doubtful), it too must be rejected. In circumstances where the Minister had the relevant materials for nearly two days, and in the absence of persuasive evidence which demonstrates that he had only very limited time within that period to consider those materials, that inference cannot be drawn. Moreover, as was made clear in Carrascalao, the Minister is entitled to rely upon accurate summaries of materials provided to him by his Department (unless the Department invites the Minister to read particular documents, which is not the case here) (see [41] per Griffiths, White and Bromwich JJ).

Conclusion

69    For these reasons, the amended originating application will be dismissed, with costs.

Associate:

Dated:    29 July 2021