2Federal Court of Australia

McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1358

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to the applicant to amend his application in terms of the further amended originating application for review annexed to the affidavit of Mr Ziaullah Zarifi dated 21 October 2021 and service of the further amended originating application is dispensed with.

2.    There be leave to the applicant to administer the following interrogatories:

(a)    During your time as Minister, including your time as Acting Minister, how many decisions under Part 9 of the Migration Act 1958 (Cth) did you personally make?

(b)    On what date, and at what time and place, did you receive the brief prepared by your Department for the purpose of a possible personal decision by you pursuant to s 501CA(4) in respect of the applicant?

(c)    At what time and place, on 14 April 2021, did you make the decision pursuant to s 501CA(4) in respect of the applicant?

3.    The respondent answer the interrogatories on or before 19 November 2021.

4.    The costs of the interlocutory application dated 29 September 2021 be reserved.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr McQueen's visa has been cancelled. The Minister, acting personally, has decided that the cancellation of his visa should not be revoked. An application has been brought to review the Minister's decision on the basis of alleged jurisdictional error. As currently expressed, the application raises three grounds of review, namely (a) the Minister failed to give proper, genuine and realistic consideration to the merits of Mr McQueen's case; (b) the Minister denied Mr McQueen procedural fairness by failing to respond to a substantial, clearly articulated argument; and (c) the decision of the Minister was legally unreasonable or illogical and irrational or both. The particulars to the first claim include an allegation that the Minister 'appears to have purported to decide [Mr McQueen's] case while sitting in the front driver seat of a motor vehicle' and reliance is placed upon a photographic image produced by the Minister as forming part of the 'decision record'. The photograph depicts a lever arch folder of materials open on a page that is signed by the Minister adjacent to a sticker indicating 'sign here'. It includes what appears to be the steering wheel of a motor vehicle.

2    An amendment to the application to add a fourth ground of review has been foreshadowed by the applicant. It is proposed to be expressed in the following terms (which refer to the Minister as M):

4.    The decision was only purportedly made by the M.

Particulars

(a)    The record of the M's purported decision, which prior to signing and dating was page 1 of the Department's document titled 'Submission - For decision' cleared by an Assistant Secretary on 22 March 2021 (the Departmental Submission), is a 'circle the option' document.

(b)    The hardcopy brief to the M, which was prepared for the M by his Department (the Brief), has 'sign here' stickers, including on the first page of the Departmental Submission, which became the record of the M's purported decision.

(c)    The photographic document, produced by the M by inclusion in the Court Book, will, absent any contrary evidence sought to be led by the M, support the inference that the M did follow the Department's instruction to 'sign here' whilst he was in a car, sitting behind the steering wheel.

(d)    Consistently with the circumstances of the purported making of the decision being that the M was sitting behind the steering wheel of a car, the second page of the Departmental Submission has no comments by the M, in the box titled 'Minister's Comments'.

(e)    The purported decision is made on the basis of the Brief including one set, and one set only, of lengthy reasons pre-drafted by the Department.

(f)    Although page one of the Departmental Submission, at point 2, indicated that the M could refer the case to a delegate, the M chose not to refer it.

(g)    The pre-drafted set of reasons would have been wasted, given they are predicated on the M making the decision personally.

(h)    The Departmental Submission, at paragraph 6, makes it clear - if the M did not already know - that the choice to make the decision personally would deprive the Applicant of merits review in the Administrative Appeals Tribunal.

(i)    Although page one of the Departmental Submission, at point 4, indicated that the M could make any amendments to the lengthy pre-drafted reasons, not a single amendment was made by the M.

(j)    Although page one of the Departmental Submission, at points 4 and 5, indicated that the M could seek to discuss with the Department, no such discussion occurred.

(k)    The pre-drafted reasons, included the Brief, deal principally with matters directed to a subjective jurisdictional fact.

(l)    The subjective jurisdictional fact is supposedly reached by the M after he considered (but note: without making any amendments to what was pre-drafted, or making any marks on the materials, identified to him has relevant by his own Department, whilst he was supposedly reading them), by engaging in an active intellectual process with the care and thoroughness appropriate to a decision of such gravity.

(m)    The volume of personal decisions, purportedly made by the M under Part 9 of the Act whilst he has had Ministerial responsibilities under the Act, each of which decision, it should be inferred, would require the M, if he truly made the decision, to read and engage with, by an active intellectual process, substantial 'relevant materials' and lengthy pre-drafted reasons, just like in this case.

(n)    Supposedly, the M would spent all this time of all of these personal decisions under Part 9 of the Act, whilst also discharging all of his other Ministerial responsibilities, as well as his responsibilities to his constituency.

(o)    It is to be inferred that a practice has been developed by the M (and/or his Department) which has resulted in de facto delegation of the decision-making power in s 501CA(4) of the Act, in circumstances where, by way of a 'circle here', the M first makes a decision (for which there are no reasons), that the case will not be referred to a delegate.

(p)    Such de facto delegation is unlawful.

3    In the above circumstances, an application is brought by Mr McQueen to administer the following interrogatories to be directed to the Minister:

(a)    During your time as Minister, including your time as Acting Minister, how many decisions under Part 9 of the Migration Act 1958 (Cth) did you personally make?

(b)    In respect of the decisions referred to at (a) above, how many of the briefs to you prepared by your Department for the purpose of each of those personal decisions by you did not have 'Sign here' stickers (or similar stickers), directing you to the pages of documents included in that brief that may have required your signature?

(c)    On what date, and at what time and place, did you receive the brief prepared by your Department for the purpose of a possible personal decision by you pursuant to s 501CA(4) in respect of the applicant?

(d)    At what time and place, on 14 April 2021, did you make the decision pursuant to s 501CA(4) in respect of the applicant?

(original emphasis)

4    An earlier application by Mr McQueen to administer interrogatories was adjourned pending the amendment of the review application pursuant to leave that had been given: McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 812. In the result, a fresh application was brought to administer the proposed interrogatories set out above. On the hearing of that application no reference was made to the earlier adjourned application. In those circumstances, these reasons are confined to the question whether an order should be made for the administration of the proposed interrogatories as set out above.

5    Senior Counsel for the Minister took objection to the form of the proposed additional ground of review as a foundation for the application. It was submitted that it amounted to an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all. It was characterised as a claim that the Minister signed instruments to say that he had made a decision when, in truth, the decision had been made by someone else, namely the officer of the Minister's department who had prepared the draft reasons.

6    I do not accept the characterisation of the proposed ground as alleging that the document was a sham in the sense that it was a deliberately dishonest record. There is no such claim. Rather, as the final particular to proposed ground 4 states, it is a claim that there has, in the particular factual circumstances, been a delegation of the exercise of the Minister's personal power to a departmental officer. On the claim as articulated on behalf of Mr McQueen, whether that is so depends upon the factual matters referred to by way of particulars to the ground. It is claimed that instead of the Minister exercising a personal judgement as to whether to revoke the visa cancellation (after taking departmental advice), the Minister has participated in a process by which he was presented with reasons why the visa cancellation should not be revoked, circled an option to exercise a personal power and then adopted the reasons without discussion, amendment or sufficient time to personally consider sufficiently the matters raised in representations made by Mr McQueen (and other similar applicants). In those circumstances, it is claimed that the factual inference may be drawn that the extent of the consideration by the Minister is insufficient to amount to the requisite degree of personal consideration required for the personal exercise of the relevant power by the Minister. There is no suggestion that the Minister has acted fraudulently in the sense of being motivated by actual dishonesty or has misrepresented the factual position. The ground raises an issue concerning whether the extent of independent personal consideration by the Minister was of the kind required.

7    For Mr McQueen, it was submitted that claims of the kind proposed to be raised by ground 4 were contemplated by Mortimer J in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [23] and by Kenny J in Mason v Minister for Home Affairs [2020] FCA 1787 at [97]. Further, the possibility of a claim that insufficient consideration of the matters raised in support of an application that is being dealt with by the Minister personally might amount to a form of delegation was recognised by the Chief Justice in QJMV v Minister for Home Affairs [2021] FCA 136 at [10]. I accept those submissions.

8    The proposed grounds provide particulars of the basis upon which it is said that an inference should be drawn that in fact there has been insufficient personal consideration of Mr McQueen's application to amount to a personal exercise of the relevant power. As the Minister has purported to exercise the power personally, it is open to Mr McQueen to advance the proposed ground of review.

9    For the Minister, it is submitted that the particulars, even if established, could not lead the Court to conclude that there has been a failure by the Minister to consider the representations personally and therefore there has been an improper delegation of the relevant power.

10    The particulars include claims that the volume of personal decisions made by the Minister during the relevant period was such that the requisite degree of personal consideration could not have been undertaken by the Minister given his substantial other responsibilities. Also, the following matters may be observed as evident from the terms of the document produced by the Minister as the decision record and the submission to the Minister that forms part of the department file relating to the decision under review:

(1)    There is a one page document addressed to the Minister and headed 'Submission, For decision'.

(2)    It is annotated as follows:

Mr MCQUEEN is currently detained at Yongah Hill Immigration Detention Centre and has been in immigration detention since 12 June 2020. It is recommended that you make your decision during the business week, in view of the immediate effect of any revocation decision on liability for detention.

(3)    The submission document then has a heading 'Recommendations' and sets out five recommendations.

(4)    The submission document is completed in the following manner under the signature of the Minister:

(5)    Attachment 1 is the decision record and what is headed as the 'Non-revocation' outcome has been circled. It is expressed in the following terms:

Mr MCQUEEN has made representations about revocation of the original decision in accordance with the invitation and I am not satisfied that Mr MCQUEEN passes the character test. Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in s501CA(4) of the Act to revoke the original decision is not enlivened and Mr MCQUEEN's Class BB Subclass 155 Five Year Resident Return Visa remains cancelled. My reasons for this decision are set out in the attached Statement of Reasons.

(6)    Attachment 3 is the Statement of Reasons which runs to 107 paragraphs and it has been signed and dated by the Minister on the last page, without alteration.

11    As presently articulated, the case for Mr McQueen relies upon a combination of the form and content of the documents described above, a claim that the briefing to the Minister as to the facts takes the form of a draft set of reasons as to why the visa cancellation should not be revoked, the lack of any record to indicate the extent of deliberation by the Minister (particularly the absence of any alteration to the reasons or any note indicating actual consideration of the draft reasons), the fact that the decision record provided is in the form of a photograph that appears to be taken of the page in a file on the lap of a person in the driver's seat of a motor vehicle and that the number of similar decisions made by the Minister personally and the extent of other responsibilities of the Minister limits the time available to the Minister to consider the relevant representations. Those matters are also put in the context of the nature of the decision to be made by the Minister. In that regard, it is now well established that the exercise of the power to revoke the cancellation of a visa which arises when an affected party makes representations in support of revocation requires a real and genuine consideration of each substantial and clearly expressed claim: see the summary in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27] (Burley, Colvin and Jackson JJ). Also, the character and quality of the deliberation required must be approached by considering the human consequences involved and mechanical formulaic expression and pre-digested shorthand may hide a lack of the necessary reflection on the consequences that must attend the exercise of the power: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Allsop CJ, Markovic and Steward JJ agreeing).

12    In my view, as matters presently stand, it could not be concluded that the claims made are unarguable and that the interrogatories should not be allowed on that basis.

13    Otherwise, I dealt with the considerations to be applied in deciding whether to order interrogatories in my earlier decision in these proceedings (referred to above): at [7]-[8].

14    As to the particular interrogatories, it is submitted for the Minister that proposed interrogatories (a) and (b) would have little forensic significance and there would be oppression in responding to them.

15    As to (a), for reasons I have given, the number of decisions made in the exercise of the personal power conferred upon the Minister is relevant. I am not satisfied that it would be unduly oppressive for the Minister to identify how many such decisions have been made. It cannot be unduly burdensome to simply calculate the number of such decisions.

16    As to (b), I am not persuaded that the only inference that might be drawn from the use of 'sign here' stickers is that there is, as was submitted, some form of 'industrial scale personal decision-making by the Minister'. Further, there is no claim that the Minister did not read the materials at all and only signed where indicated (and properly so given the state of the material relied upon). The Minister also says there will be prejudice in having to make the inquiries necessary to answer any question as to the extent to which stickers were used in every case. For Mr McQueen it is said that any oppression could be overcome by asking the interrogatory in a form that inquired whether there was ever a brief prepared that did not have the 'sign here' stickers. However, none of that overcomes the difficulty that there is, in the terms of proposed ground 4, no claim articulated of a kind that would be supported by forensic investigation of the extent of the use of the 'sign here' stickers.

17    As to (c) and (d), no further objections were raised by the Minister beyond the concerns as to whether ground 4 should be allowed. For reasons already given, those concerns should not be accepted.

18    Accordingly, I will give leave to administer proposed interrogatories (a), (c) and (d) and will order that the answers be provided on or before 19 November 2021.

19    Further, the Minister's submissions as to why the amendment to the originating application to raise ground 4 should not be allowed have now been addressed in these reasons. The submissions for the Minister as to why that ground should not be allowed have not been accepted. There being no other reason advanced as to why the amendment should not be allowed, there should be a formal order allowing the proposed amendment.

20    After my decision on the application was reserved, the solicitors for the applicant communicated with my associate to the effect that they sought to maintain the application for the interrogatories that had been the subject of the earlier application (and reasons), which had been adjourned. There was no reference to those interrogatories in the course of oral argument. The application that had been listed for hearing was the further application for interrogatories. There was no separate request to relist the earlier and separate adjourned application. In those circumstances, I directed the parties to confer as to the separate interlocutory application for interrogatories. If necessary, I will relist that application for hearing at short notice.

21    I will reserve the costs on the present application.

Associate:

Dated:    3 November 2021