Federal Court of Australia

Po’oi v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 258

ORDERS

THE COURT ORDERS THAT:

1.    The Further Amended Originating Application is dismissed.

2.    The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

Background

1    The applicant is a New Zealand citizen who was born in 1988. She migrated to Australia in 1990 as an infant. As a New Zealand citizen, the applicant was granted a Subclass 444 Special Category (Temporary) visa (the visa) in 2007.

2    In September 2023, the applicant was convicted and then sentenced to three years imprisonment in the County Court of Victoria for various offences including kidnapping, theft, driving whilst disqualified, committing an indicatable offence whilst on bail and possessing MDMA. The sentencing judge found the offending to be a “significant example of a serious offence”, and in fixing the sentence, took into account the possibility of the applicant’s deportation: DPP v Po’oi [2023] VCC 1659 at [32], [60]. The applicant has a relatively extensive criminal history, commencing in 2003 in the Children’s Court of Victoria.

3    On 4 October 2023, a delegate of the respondent (the Minister) mandatorily cancelled the visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The delegate was not satisfied that the applicant passed the character test on the ground that she had a substantial criminal record within the meaning of s 501(6)(a) of the Act. The applicant was invited to make representations as to why the cancellation of the visa should be revoked.

4    On 13 October 2023, the applicant made representations to revoke the cancellation. On 22 February 2024, a delegate of the Minister decided not to revoke the cancellation decision. The delegate was not satisfied that the applicant passed the character test or that there was “another reason” why the cancellation should be revoked as required by ss 501(CA)(4)(b)(i) and (ii) of the Act.

5    On 28 February 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the decision. On 16 May 2024, the AAT set aside the delegate’s decision and substituted for it a decision that the visa cancellation be revoked pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 501CA of the Act (the Tribunal Decision). The AAT was satisfied that the applicant had a substantial criminal record and did not pass the character test, but in weighing the considerations for and against revocation of the visa, was satisfied the there was another reason why the cancellation should be revoked. The AAT noted that the “considerations do not point decisively in either direction” and “the applicant’s case rests on a fine line”.

6    On 2 June 2024, the Department of Home Affairs sent a brief to the Minister about the applicant’s case, which asked him to “indicate whether you wish to consider exercising your personal power” pursuant to s 501BA of the Act to set aside the AAT decision.

7    On the same day, the then Minister for Immigration, Citizenship and Multicultural Affairs, the Hon Andrew Giles MP, decided to set aside the AAT decision.

The review application

8    The applicant relies on her Further Amended Originating Application for review filed on 15 November 2024. She does not press ground one, which contended that the power “was already spent” by reason of a Ministerial endorsement of thresholds for the submission of cases for the consideration of the exercise the Minister’s power and the conduct of weekly character and cancellation meetings. Justice Lee rejected a contention to the same effect in Chapman v Minister for Immigration and Multicultural Affairs [2025] FCA 24.

9    The remaining ground contends the Minister “impermissibly de facto delegated his decision making to the person who drafted the reasons, because the time the Minister spent in considering [the] submission and attachments could not realistically have been sufficient for him to have personally considered all of that material”. The ground is particularised as:

(i)     The Minister stated in the decision record that he spent 1 hour and 40 minutes ‘considering submission and attachments’.

(ii)     The time of 1 hour and 40 minutes could not realistically have been sufficient for him to have personally considered all of that material, having regard to the volume of the material;

(iii)     In the premises of (i)-(ii) above:

a.     the statement that the Minister had spent 1 hour and 40 minutes is to be construed as the Minister stating that he had spent that time considering some but not all of the ‘submission and attachments’;

b.     the person who drafted the reasons was the person who factually considered the ‘submission and attachments’, as well as factually whether the Tribunal’s decision should be set aside and substituted with an adverse decision;

c.    the Minister de facto delegated the power to make the decision to that person.

10    The grounds of review were sharpened in the course of the hearing. In oral submissions, counsel for the applicant rejected the assertion in the respondent’s written submissions (RWS) at [23(b)] that the ground of review is premised on the basis that the reasons adopted by the Minister were not in fact his own reasons for exercising the power and he had in fact been overborne by the anonymous drafter of the reasons. Counsel further rejected the respondent’s characterisation (at RWS [23(e)]) of the applicant’s complaint as being that the Minister ‘deputised’ the exercise of the discretionary power to the anonymous drafter. Further, counsel made it clear that the ground does not contend that the Minister was obliged to consider each of the attachments to the submission as mandatory relevant considerations.

11    Having cleared that ground, counsel submitted that the argument is whether the reasons as a matter of law are those of the Minister. In developing the argument, counsel submitted that it should be inferred that the Minister failed to consider the submission and attachments in the sense required by Tickner v Chapman (1995) 57 FCR 451 and, accordingly as a matter of law, it was not the Minister who made the decision. Rather, it was the anonymous drafter of the reasons. It is in this sense that the applicant contends there was a de facto delegation.

12    While not explicit in the applicant’s grounds, the applicant’s written outline of submissions (AWS [8], [14]-[16]) and the oral submissions make clear that two contentions are relied on. First, that while the full brief comprised 414 pages, including a six page “submission for decision”, a 17 page document comprising draft reasons (on the assumption the Minister decided to exercise the power) and 111 attachments (labelled “A” through to “CG”), the brief sent to the Minister was incomplete and compromised only 117 pages. It was a jurisdictional error for the Minister to purport to make the decision on an incomplete brief.

13    Secondly, if all attachments to the brief were before the Minister, he failed to consider them. The Submission contains multiple references which outline the options open to the Minister and invite consideration of all of the material in the brief, employing language such as “after considering this submission and the attachments”, “it is open to you after considering the content of the attachments to this submission” and “having considered all materials provided”. Whilst the applicant does not contend that these statements were binding, on the evidence the Minister did not do anything other than follow the instructions in the brief. The final line of the Minister’s decision “Total time taken in considering submission and attachments: 1 hour 40 minutes” should be read as stating that the Minister considered all of the submission and attachments in the brief.

14    It should be understood that the applicant’s case is not that the Minister could not rely on the summary as contained in the draft statement of reasons, nor that it was factually inaccurate, incomplete or failed to give emphasis to material matters in favour of the applicant: cf Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594.

Was an incomplete brief provided to the Minister?

The evidence

15    The Minister was at work in his office in Parliament House on Sunday, 2 June 2024. As might be expected, various ministerial advisers and departmental officers were also at work that day, including Departmental Liaison Officers (DLO) who were assigned to work within the Minister’s office for the purpose of facilitating the information and document flow to and from the Department. Ms Ameeta Agarwal was one of the DLO officers on duty that weekend.

16    The documentary record evidences an email sent at 12:38 am on 2 June 2024, from an Assistant Secretary in the Character and Cancellation Branch of the Department, to the Minister’s advisers titled ‘s501BA cancellation consideration submission – Ms Victoria Violet POOI’, which provided a copy of the Submission “for early visibility”. The attachment did not include all attachments to the brief. A reply email sent at 2:36 pm on 2 June 2024, from a DLO to the Assistant Secretary attached the signed decision of the Minister. There is no correspondence in evidence in the intervening period. The applicant contends that an inference should be drawn that the full brief was not provided.

17    To rebut that inference, the Minister relies on affidavit evidence from Ms Agarwal and Ms Sathya Gnanakaran. Each was cross-examined.

18    Ms Agarwal explained the role of a DLO as I have summarised it. She was responsible for collating and providing submissions and briefs for the Minister to consider. This extended to the gathering of more information if required. Once the Minister had decided a matter, she would be responsible for providing the executed documentation to the Department. In cross- examination, Ms Agarwal gave consistent oral evidence to the effect that her primary responsibility was to enable the flow of information between the Department and the Minister’s office and that is what she did when working between 31 May and 2 June 2024.

19    Ms Agarwal gave detailed evidence about how Parliamentary and executive information is electronically maintained in the Parliamentary Document Management System (PDMS). The system is used to send documents digitally to Ministerial offices, including submissions and information briefs. The Department has another electronic file management system called Content Manager, previously called TRIM. Officers would occasionally use TRIM instead of PDMS to access relevant submissions and attachments, however this was only in exceptional cases.

20    Ms Agarwal was cross-examined about her use of PDMS and other departmental systems, with particular reference to whether the PDMS system would record the downloading and viewing of a document. The cross-examination did not elicit any evidence to the effect that the information stored in the PDMS had been altered from the form that it was in on 2 June 2024.

21    Between 31 May and 2 June 2024, Ms Agarwal assisted Minister Giles in his consideration of numerous visa cancellation and non-revocation decisions. Ms Agarwal worked from approximately 8.30 am to 10 pm on Saturday 1 June and approximately 8.30 am to 5 pm on Sunday 2 June. There were several character cancellation decisions for the Minister’s consideration that weekend and Ms Agarwal was responsible for collating the documents for each submission and for providing each to the Minister for his consideration. Once the Minister made a decision, she would provide the relevant documentation to the Department. Ms Agarwal was assisted by other DLOs throughout the course of the weekend, and particularly on Sunday 2 June. Ms Agarwal was considerably involved in the important task of printing, compiling and checking of the stacks of documents associated with each brief to ensure that the correct documents were provided to the Minister. Her attention to detail was such that she would cross-check the indexed material referred to in each submission with the printed attachments. The purpose was to ensure that each attachment was actually provided to the Minister. Ms Agarwal recollects collating the Departmental submission for the applicant, because she recalls that her surname struck her as unique. She further recalls when checking the applicant’s submission that it was larger in size compared to other submissions and for that reason the Annexures included “multiple cycles of the alphabet”.

22    Although she does not have a specific recollection of how she compiled the submission in the applicant’s case, her affidavit evidence in great detail sets out the procedure that she implemented. In summary, when a submission was uploaded to the PDMS, she would receive an electronic notification and would then access the documents for the purpose of printing hard copies. Her attention to detail required undertaking a quality assurance process to satisfy herself that each indexed document was printed and marked as an attachment, the number of pages were cross-checked to the electronic copy and the finalised submission with each of its attachments would then be placed within the Minister’s office for consideration. Once the Minister had considered a submission and decided whether or not to exercise his personal power, she would remove the hard copy documents and scan them so as to upload the completed material to the PDMS.

23    Ms Agarwal gave consistent evidence in cross-examination, that she did not specifically recall whether she or one of the two other DLOs working that weekend printed the documents for the applicant’s brief, but did recall “ticking off” the applicant’s name on a manual tracker (which she maintained) to record that the documents had been checked and then provided to the Minister.

24    Ms Agarwal has no reason to believe that, in collating the applicant’s hard copy submission, any relevant attachment was omitted from the material provided to the Minister.

25    Her affidavit evidence includes this:

I recall that, when considering the submissions generally, and specifically on Sunday 2 June 2024, the Minister was to my observation meticulous with respect to the lists of attachments. For example, I recall that one of the briefs that he was considering contained an attachment in the form of an audio file. He requested that he be given a transcript of that audio file and he put the submission aside until he had transcript to consider. For another brief, he queried the correctness of a particular attachment. That attachment turned out to be correct but had been not been described correctly in the index. The Minister signed the submissions in numerous places. We as DLOs checked all signatures and dates to ensure that they were all completed.

26     Ms Agarwal was copied into the email sent at 12:38 am on 2 June 2024. She does not specifically recall that she opened the attachment at the time. She did not need to, as it was not her practice to compile hard copies of submissions from email attachments. Rather, she accessed documents from the PDMS. On review for the purposes of this proceeding, she notes that the attachments to the email cease at the letter O. She offers this evidence:

Based on my experience working in the Department and as a DLO, I was aware that the limit for file sizes of email attachments was relatively small, approximately 25MB. As I have said above, character cancellation submissions and briefs were generally larger in file size (as compared to other types of briefs). Therefore, it was rare that I would ever rely on an email attachment to collate the hard copy brief and attachments for the Minister for a character cancellation brief. The 2 June Email stated that PDMS will be updated in “due course”. I understand (and would have understood) this to mean that the character team had uploaded the full brief and attachments and that the materials were ready for a decision.

27    Ms Gnanakaran is employed as a Senior Legal Officer within the Department, which position she has held since 2 January 2024. Her responsibilities include the management of the conduct of migration, citizenship and removals and related legal proceedings in which the Minister is a party. Her evidence concerned access to the PDMS for the purpose of the submission prepared in the applicant’s case. Her review confirmed that all of the attachments listed in the brief for the applicant were uploaded to the PDMS.

Findings

28    I accept the evidence of Ms Gnanakaran that the complete brief for the applicant was uploaded to the PDMS before Ms Agarwal accessed it.

29    I accept the evidence of Ms Agarwal. She presented as a careful, competent and credible witness. Her answers to questions in cross-examination were clear. I find that the practices and procedures that she described were followed in the applicant’s case. Accordingly, I find that the applicant’s departmental submission was provided in hard copy format to the Minister complete with each of the annexures marked A-CG as set out in the index of relevant materials, marked as Attachment 2 to the brief.

30    These findings dispose the applicant’s incomplete brief submission.

Did the Minister consider the brief?

The evidence

31    The applicant carries the onus of establishing on the balance of probabilities that the Minister failed to give the requisite consideration to the brief: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The Minister’s submission is that the applicant cannot discharge that onus and the facts of this case do not support judicial interrogation as to whether the time that the Minister said he spent in considering the brief was sufficient.

32    The Minister did not give evidence. The applicant implicitly at AWS [11] and [13] invites the drawing of a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference. I decline to do so. The rule does not operate to assist the applicant in filling in any gaps in her evidence and the reasons why Ministers do not give evidence in judicial review proceedings are well understood: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [82] – [91], Murphy and Rangiah JJ. Unlike Chetcuti where the majority did draw the inference (only 11 minutes elapsed between the Minister being informed that this Court had quashed the Minister’s cancellation decision and when the Minister made a fresh visa cancellation decision), in this case the Minister worked throughout Sunday, 2 June 2024 and personally certified that he had spent 1 hour and 40 minutes in considering the brief and its attachments. He provided that certification at 2.22 pm. In Chetcuti there was no certification of that type.

33    The evidence as to the Minister’s consideration may be shortly summarised. The collated hard copy brief in all cases to be considered were placed in separate stacks which were then put on tables within the Minister’s office, or on a table in a communal area adjacent thereto. Ms Agarwal’s evidence is that the Minister worked interchangeably between these locations. Once the Minister had made a decision on a brief comprised in a stack, he would request a DLO to remove it.

34    The Minister personally signed the submission and dated it. He signed the decision page and circled the options which corresponded with his decision to cancel the applicant’s visa pursuant to s 501BA of the Act without affording natural justice to the applicant and then adopted, as his reasons, the draft statement of reasons in Attachment 3. In doing so the Minister recorded that he made his decision at 2.22 pm in the afternoon at Canberra and that his “total time taken considering submission and attachments” was 1 hour and 40 minutes.

Consideration

35    The applicant’s case relies on the drawing of an inference which commences with the proposition that the brief “directed” the Minister to take into account all of the material provided and to “consider” all of it. The consideration argument relies on Tickner at 461-462, Black CJ; 476-477, Burchett J and 495-497, Kiefel J. In Tickner, the Court was concerned with s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which required the Minister, when considering an application for the preservation and protection of a specified area, to consider a report made under s 10(4) and any representations attached to the report. Of this statutory requirement, Black CJ at 462 noted that the Minister’s responsibility required personal consideration of the report and the attached representations. His Honour continued:

The meaning of "consider" used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed. as "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of." Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.

36    His Honour further explained at 462-463, that the degree of effort is relative. In part, his Honour said:

It must also be remembered that the obligation to consider, imposed separately upon both the reporter and the Minister, is an obligation to consider each representation. The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance.

…

[The primary judge] examined this issue on the footing that there needed to be "substantial personal involvement" on the part of a person who was required "to consider" the written material. This did not mean that the person must read every word of every document; a busy Minister was entitled to receive assistance from his staff. 

37    Justice Burchett at 476 expressed the view that the Minister “must obtain an understanding of the facts and circumstances set out in [the report and the representations], and of the contentions they urge based on those facts and circumstances” and “it is his task to evaluate them, a task he can only perform after he knows what they actually are”. Justice Kiefel at 494 accepted that the statutory obligation did not prohibit the Minister from seeking the assistance of his staff and at 495-496 reasoned:

To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.

38    The applicant also places reliance on Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24] where the Court was concerned with s 501CA(4) of the Act and the requirement to be satisfied that there is another reason why the cancellation decision should be revoked. In that context, Kiefel CJ, Keane, Gordon and Steward JJ said:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

39    From these principles, the applicant submits that it should be concluded that the volume of material contained within the brief could not have permitted consideration by the Minister, that is active intellectual engagement, within the recorded time. In written submissions the argument is put in this way:

The material is not mere light entertainment reading; it is factually dense and a misunderstanding of it has serious personal and legal consequences for the Applicant. Therefore, the statement from the Minister that the “[t]otal time taken in considering submission and attachments” was just “1 hours 40 minutes’ must be taken to mean that what was applied to the pages was something less than an active intellectual process.

40    In oral submissions, Mr Guo emphasised the words just below the Minister’s signature on page 7 of the brief “total time taken considering submission and attachments” whilst not requiring the Minister to read “every word” (which he accepted would be extreme) at least required the Minister to spend sufficient time to “sift through” all of the material. Just how much sifting was required was not identified.

41    Mr Solomon-Bridge for the Minister submits that the s 501BA power has a “uniqueness”, including by reason of the Minister having “a broad discretion in determining what is in the national interest, that being a largely political question”. The Minister accepted “for present purposes” that he must consider the merits of the case before him, that is: “to give proper genuine and realistic consideration to the merits of the case”: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [29], which concerned the similar power at s 501(3) of the Act. Pausing there, it should not be overlooked that the plurality in Plaintiff M1/2021 at [26] observed that labels of that type “must be understood in their proper context” and cautioned against elision into “indefinite and subjective” analysis.

42    However, what is emphasised is that a finding that the Minister did not engage in a sufficient intellectual process, must be supported by clear evidence: AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866 at [33], Griffiths J. In this case the applicant simply cannot discharge her onus of establishing, necessarily by inference, that despite the Minister’s statement that he had considered the submission and its attachments he did not actively engage with the material.

43    Further reliance is placed on McQueen at [22] and [25] that even in cases where a summary advises or requests the Minister to consider the particular document, the Minister “at the very least” must “turn his or her mind to considering whether to undertake that task”.

Consideration

44    I am not satisfied that the applicant has discharged her onus of establishing that the Minister failed to sufficiently engage with the brief and its attachments in order to lawfully exercise the personal power at s 501BA of the Act. Section 501BA operates if the Minister “is satisfied” that a person does not pass the character test (about which there is no issue in this case) and then “is satisfied that cancellation is in the national interest.” There is no explicit requirement, unlike the provision considered in Tickner, that the Minister must consider or have regard to any matter in exercising the power. The determination of what is in the national interest is “broad and evaluative” and the “question is largely a political one”: Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) FCR 156 at [43], Derrington and Hespe JJ. And, as further observed by their Honours at [44], the “Act does not stipulate any factors to which the Minister must have regard” in resolving that question. What is considered as relevant is a matter for the Minister to determine.

45    For similar reasons, Plaintiff M1/2021 does not provide direct assistance to the applicant’s arguments as it was concerned with s 501CA(4) of the Act where the Minister is obliged to ‘read, identify, understand and evaluate the representations” at [24]. See also McQueen at [6](a).

46    With that understanding, the applicant’s case requires a lot to be read into the simple phrase that the “total time taken in considering submission and attachments” was 1 hour and 40 minutes as then founding the submission that the Minister could not have considered all, or a large portion of the brief, in that time and thus failed to intellectually engage with the material. The primary difficulty with the submission is that the Act leaves it to the Minister to evaluate what he considered relevant to the national interest question. This is not to say that the Minister may eschew consideration of the merits of the case as presented to him in the brief: Carrascalao at [29]. Rather, the manner in which the brief is framed cannot determine how the Minister approaches his consideration of the material, save in cases where the brief requests the Minister to directly engage with a particular document: McQueen at [25]. The brief in this case did not do that.

47    In my view there is no objective basis to read the words in question as a statement by the Minister that he had read every word on every page in the brief, or as put in oral submissions, “not quite that far”, which begs the question: How far? The obvious meaning is that the Minister was entitled to rely on the Department’s sifting and organising of the material and then bring his own mind to bear on what parts of the brief required detailed consideration as distinct from those parts which could be perused less intently, including the summary as contained in the draft statement of reasons which the Minister ultimately adopted as his own: McQueen at [19]. It should be recalled that it is no part of the applicant’s case that the Departmental summary was factually incorrect, inadequate in some material way or otherwise deficient; cf McQueen at [22].

48    It is also objectively clear that this statement by the Minister conveys no more than he considered so much of the material as he considered necessary in order to be properly informed for the purpose of exercising his statutory power.

49     I also reject the applicant’s submission that the Minister “was directed” by the terms of the submission to “take into account all materials provided” with the consequence that:

On the evidence, there is no reason to conclude that the Minister did anything other than follow the instructions in his brief. In the absence of any evidence from the Minister that he did not follow those instructions, the Court should conclude that the Minister did attempt to “consider” all of the materials before him.

50    The error in that submission is that it was not open to the Department to frame (and determine) the exercise of the statutory power in that way. The Act does not provide that the Department may so direct the Minister and there is no statement in the brief which requests the Minister to directly engage with any particular document. Further, the conclusion which is said to follow is purely speculative: what the Minister considered is revealed by his adoption of the draft statement of reasons at Attachment 3 to the brief. Beyond that, it was entirely a matter for the Minister to determine the extent to which he considered the attachments.

51    The applicant’s arguments proceed further by inviting me to undertake a comparison of how long it reasonably takes to read the brief, or at least the unidentified material portions of it, to conclude that the Minister could not have done so in the recorded time. The argument disavows any contention that the Minister was required to read every word on each page, but then falls short of identifying just how much material was required to be read and considered to perform the statutory task.

52    With respect to Mr Guo, the submission proceeds down the dangerous pathway of merits review. Lurking behind it are assumptions about the reading ability of the Minister, the selection and identification of material that is of most relevance to the exercise of the power and an assumption about the Minister’s ability to sift and comprehend the material. It also amounts to an invitation for this Court to assess what is a political question for the Minister. This case is readily distinguishable from, for example Carrascalao, where the Minister had “at most” 30 minutes to consider one brief and 13 minutes for another ([126]),which led the Court to conclude the time was “insufficient for the Minister to engage in the requisite active intellectual process” having regard to the importance of the decisions and the volume of materials: [128]. Similarly, Chetcuti where the majority concluded that the Minister (in a period of 11 minutes) “paid so little attention to the material that he erroneously stated that he had given consideration” to all of the supplied information: [99].

53    Here what is known is that the Minister worked on Saturday 2 June 2024, meticulously “with respect to the lists of attachments” to the observation of Ms Agarwal. That fact together with the recorded time of 1 hour and 40 minutes simply does not support the drawing of any inference that the Minister failed to bring his mind to the materials and thereby delegated his personal power to the anonymous drafter of the reasons.

Conclusion

54    The application must be dismissed. There is no reason why costs do not follow the event.

55    The Court is very grateful for the assistance provided by Gadens Lawyers as solicitors and by Mr Guo as counsel where each, acting in the best traditions of the legal profession, accepted a pro bono referral to act for the applicant. No stone was left unturned in the factual investigation and the arguments were presented succinctly and efficiently.

Associate:

Dated:    27 March 2025