Chetcuti v Minister for Immigration and Border Protection

The evidence before the primary judge and the judgment 19 The appellant represented himself before the primary judge. His Honour recorded the appellant as having argued that jurisdictional error was established on six grounds. His Honour rejected each of those grounds. For the purposes of this appeal, it is only necessary to focus upon his Honour's reasons for rejecting a ground that the decision was made within such a short time of the order of the Court quashing the March 2017 decision that the Minister could not have considered the decision in accordance with the law. 20 The evidence before the primary judge consisted of an application book, an affidavit annexing documents produced by the Minister in accordance with a notice to produce and a further affidavit explaining why the Minister had declined to produce other documents requested under the notice to produce. That material was admitted into evidence without objection. No oral evidence was given. 21 The primary facts found by the primary judge can be summarised as follows. On Friday, 11 August 2017 at 5.55 pm, Ms Sarah Harris, the Acting Director of the Complex Cancellation Section of the Department of Immigration and Border Protection, had sent an email to Ms Kristin McGill, a Departmental liaison officer in the Minister's office, attaching a submission, a draft decision and a draft statement of reasons prepared by the Department concerning the cancellation of the appellant's visa. The email indicated that a hard copy would be sent to the Minister's office on Monday, 14 August 2017. The heading of the Departmental submission stated that the parties to the existing Federal Court proceeding were discussing "withdrawal" from those proceedings. The email stated that "the Minister cannot make a decision on this case until the withdrawal is finalised". 22 At 9.16 am on 14 August 2017, Ms McGill sent an email to Ms Harris informing her that "[t]he submission is on the Minister's desk for his consideration". 23 At 10.14 am on 14 August 2017, Ms Marian Kijirah, a Departmental legal officer, sent an email to Ms McGill advising her that the Court had made orders setting aside the Minister's decision of 28 March 2017 and attaching a copy of the sealed orders. The email continued "[t]he Minister is now able to consider the submission". 24 At 10.25 am on 14 August 2017, the Minister signed, dated and recorded the time of his decision. 25 The primary judge observed that the submission placed before the Minister consisted of seven pages. It was accompanied by a draft decision that consisted of a single page. There was then an index page followed by 65 pages of attachments from "A" to "S", and a further 46 pages of attachment "XX". The draft statement of reasons prepared for the Minister was 11 pages long. The material comprised of about 130 pages in total 26 His Honour also noted that of the twenty attachments to the submission, there were four that were not before the Minister when he made his March 2017 decision. These were attachments "Q", "R" and "S", which were four pages long in total, and attachment "XX". 27 The primary judge found that the Minister had not seen the emailed version of the material sent by Ms Harris on 11 August 2017, and considered only the material placed on his desk on 14 August 2017. 28 His Honour observed that there was no direct evidence as to when the Minister began to consider the submission. The maximum period during which the Minister could have read the submission was from 9.16 am to 10.25 am, or 1 hour and 9 minutes. However, there were only 11 minutes between when Ms McGill learned that the March 2017 decision had been set aside (10.14 am) and when the Minister made his new decision (10.25 am). 29 Attachment "XX" was the subject of a claim for public interest immunity, which the primary judge was required to rule upon. His Honour noted that it had taken over 20 minutes to read the 46 pages of attachment "XX". His Honour held that, had the Minister only commenced considering the material after Ms McGill learnt of the Court's orders at 10.14 am, the Minister could not possibly have given proper, genuine and realistic consideration to the decision. His Honour then proceeded to consider the evidence as to when the Minister had commenced considering the material. 30 The primary judge observed that the heading to the Departmental submission included the following: Timing: following the confirmation of withdrawal from Federal Court of Australia proceedings, please consider by Monday, 14 August 2017, as agreed by your Office. 31 His Honour noted that Ms Harris' email of 11 August 2017 had stated that "the Minister cannot make a decision on this case until the withdrawal is finalised". 32 The primary judge considered that the evidence left it open that the Minister could have commenced reading and considering the Departmental submission and attachments at any time after they were placed on his desk at 9.16 am on 14 August 2017. His Honour found that, therefore, the Minister potentially had over one hour to read and consider the material before him and form a state of mind to proceed as the drafted reasons proposed. His Honour considered that while the Minister must have been conscious that he could not exercise the power under s 501(3) of the Act until he knew that the Court had quashed the March 2017 decision, that did not preclude him from preparing to make his new decision in advance. 33 The primary judge was not satisfied that the Minister had only commenced his consideration of the submission, attachments and reasons at or after 10.14 am. His Honour noted that there was no evidence that, for example, the Minister was occupied with any other activity between 9.16 am and 10.25 am. His Honour observed that the appellant had the onus of proving that the Minister did not give the decision proper, genuine and realistic consideration, but that the evidence was insufficient to allow a conclusion that the Minister did not undertake an active intellectual process during the period from 9.16 am to 10.25 am, or during a sufficient part of it, before making the decision. Accordingly, the primary judge rejected the appellant's argument that the Minister had failed to give his decision proper, genuine and realistic consideration.

The parties' submissions in the appeal 34 In support of his first ground of appeal, the appellant submits that the primary judge erred by failing to find that the Minister had only commenced his consideration of the decision at or after 10.14 am on 14 August 2017. The appellant submits that accordingly, his Honour erred in failing to uphold that the Minister had not given proper, genuine and realistic consideration to the decision. The appellant relies heavily upon the reasoning of the Full Court in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352. 35 The appellant submits the evidence before the primary judge was consistent with the Minister having only begun consideration of his decision after he was notified that the Court had quashed the March 2017 decision. He points to the email at 10.14 am stating that "the Minister is now able to consider the submission". He also relies upon the email from Ms Harris. Inferentially, he relies upon the heading to the submission before the Minister. He submits that these matters suggest that it was normal practice for the Minister to defer reconsideration of a matter until after any prior decision had been quashed. 36 The appellant submits that there was no material before the primary judge indicating that the Minister had in fact commenced his consideration of the decision prior to 10.14 am. He submits that the email from Ms McGill to Ms Harris indicated only that the submission had been placed on the Minister's desk at 9.16 am, not that the Minister had begun his consideration of the decision at that time. 37 The appellant submits that in the material before the Minister, one matter recorded in attachment "I" was that a previous Minister, having considered cancellation of the appellant's visa under s 501(2) of the Act, had decided not to cancel the visa. However, that matter was incorrectly recorded in the Minister's statement of reasons, which merely said that the appellant had been issued with formal Departmental warnings in the past. The appellant submits that the failure by the Minister to correct this error tends to support an inference that the Minister did not consider all of the material before him. 38 The appellant submits that the Minister was the only respondent to the application and either he or a member of his staff should have given evidence as to when he commenced his consideration of the decision. The appellant submits that a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn against the Minister and that the primary judge erred in failing to draw such an inference. The appellant submits that would allow the Court to more easily infer that the Minister did not commence his consideration of the decision until at least 10.14 am. 39 In oral submissions, the appellant raised an alternative argument. That argument is that even if the Minister commenced consideration of the decision at some point after 9.16 am on 14 August 2017, that still did not allow him sufficient time to give proper, genuine and realistic consideration to the decision. It is not clear whether that was an argument raised before the primary judge. The argument was not substantially developed in the appeal. 40 The Minister submits that the judgment was correct for the reasons given by the primary judge. He submits that Carrascalao, is readily distinguishable on the facts of that case. 41 The Minister submits that the rule in Jones v Dunkel is inapplicable in this case because it applies only to an unexplained failure by a party to call a witness, whereas the courts have recognised that the absence of a Minister of State from giving evidence in the witness box is readily understandable. Further, the Minister submits that Jones v Dunkel only permits a Court to draw an inference with more confidence where such an inference is available on the evidence, but it cannot be used to fill gaps or convert suspicions into inference. 42 The appellant's second ground of appeal alleges that the primary judge failed to accord the appellant procedural fairness. The appellant submits that his Honour ought to have explained to the appellant that he could seek further discovery and that he could ask the Court to draw a Jones v Dunkel inference, or have subpoenas issued to the Minister or Departmental officers to give evidence. The appellant relies upon Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [6], where Allsop P (as the Chief Justice was then) observed that a fair hearing involves a litigant understanding the proceedings and having an adequate opportunity to more or less vindicate his or her rights in Court. 43 The Minister submits that while the Court may give an unrepresented litigant some assistance to ensure that there is a fair trial, the Court cannot assist an appellant to establish his or her case. In this case the appellant had issued two notices to produce seeking copies of documents and filed affidavit evidence and it was only a matter of speculation as to how any additional steps could have resulted in any further information. The Minister submits that the primary judge was not required to explain the rules in Jones v Dunkel in circumstances where that rule did not apply. 44 The judgment of Charlesworth J in Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197 was not referred to by the appellant, and was only referred to by the Minister in a footnote in his written submissions. After the hearing, the parties were asked to provide submissions upon the case. 45 The appellant submits that there are striking similarities between Burgess and the present case. In particular, the heading of the Departmental submission (described at [30] above) was in the same terms as the opening words of the Departmental submission in Burgess and the language of the advice given to the Minister was very similar. The appellant submits that like in Burgess, the Minister's advisors intended that he consider the submission only after the order of the Court had been made. The appellant submits that as in Burgess, Jones v Dunkel allows an inference to be drawn with more confidence that the Minister did not begin his consideration until that time. 46 The Minister submits that Burgess is distinguishable. He submits that a critical difference is that in this case, there is evidence going to when the Minister began his consideration, whereas in Burgess, there was no such evidence. He submits that the natural way to read Ms McGill's email saying that the submission was on the Minister's desk for consideration is that he was already considering the submission, or would be shortly. The Minister submits that the wording of the Department's submission sheds light on the Department's intentions, not the Minister's. The Minister submits that a Jones v Dunkel inference is not available to act as a "tiebreaker".

Consideration 47 The Minister's decision was made under s 501(3) of the Act. The appellant's application for judicial review of that decision was made under s 476A(1)(c) of the Act. The appellant is required to demonstrate jurisdictional error on the part of the Minister: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [76]. 48 Section 501(3) of the Act provides, relevantly: 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice dos not apply (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. 49 Section 501(4) of the Act provides that the power under s 501(3) may only be exercised by the Minister personally. Under s 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s 501(3).

The first ground of appeal 50 The appellant argues that the Minister committed jurisdictional error by failing to give proper, genuine and realistic consideration to the merits of his decision of 14 August 2017 to cancel the appellant's visa. The appellant's primary contention is that the Minister's consideration of the decision and the relevant material commenced no earlier than 10.14 am on 14 August 2017 and concluded at 10.25 am, and that was an insufficient time to allow an active intellectual process to be applied to the merits of the decision. While the Minister accepts that eleven minutes would have been an insufficient time to engage in the required active intellectual consideration, he submits that the appellant has failed to prove that his consideration did not begin at about 9.16 am.

The relevant principles 51 The appellant relies heavily upon Carrascalao. The circumstances of that case have substantial factual and legal similarities to those of the present case. The Minister had decided under s 501(3) of the Act to cancel the visas of Mr Taulahi and Mr Carrascalao based upon their involvement with outlaw motorcycle gangs. On 14 September 2016, following a contested hearing and reservation of the judgment, a Full Court ordered that the Minister's decisions be set aside. A little over four hours later, and less than an hour after being provided with a Departmental submission, the Minister made further decisions cancelling the visas. The Minister's statements of reasons were found at [127] to be, "replete with statements to the effect that the Minister had noted, found, accepted, had regard to, considered and recognised particular matters." There were 330 pages of material accompanying the submission in respect of Mr Taulahi and 370 pages in respect of Mr Carrascalao. The Full Court held at [128] that there was insufficient time for the Minister to have given proper, genuine and realistic consideration to the merits of the decisions. 52 The judgment of Charlesworth J in Burgess also has substantial factual and legal similarities to this case. The Minister had cancelled a visa on character grounds under s 501(3)(b) of the Act in June 2016. On 16 September 2016 at 9.20 am, the Court made an order, with the Minister's consent, quashing the June 2016 decision. About 20 minutes later, the Minister made another decision cancelling the applicant's visa. The applicant alleged that the Minister had failed to give proper consideration to the relevant material. A Departmental officer provided affidavit evidence and was cross-examined at the hearing. The officer gave evidence that the Minister might have given consideration to the material prior to the June 2016 decision being set aside. The officer gave evidence that shortly after 9.20 am on 16 September, he telephoned Ms McGill in the Minister's office to tell her the June decision had been set aside and that the Minister was able to "consider" the paperwork in relation to a new decision. The officer then sent an email to Ms McGill stating that the Minister is "now able to consider the matter again". Further, the Departmental submission to the Minister contained the statement, "following confirmation or withdrawal from the Federal Court proceeding, please consider by 16 September 2016, as agreed by your Office". 53 Justice Charlesworth found that these communications indicated that the Minister's advisors did not intend that the Minister would consider the paperwork necessary for a fresh decision unless and until the June 2016 decision had first been quashed. Her Honour considered it reasonable to infer that the Minister would have first given consideration to the material at the time his advisors considered appropriate. Her Honour observed that the Departmental officer gave no evidence to the effect that he positively advised the Minister to consider the materials at any earlier time. Justice Charlesworth found that the evidence supported an inference that the Minister's attention was directed to the material soon after the June 2016 decision was quashed, but not before. Her Honour held that this finding could be made with more confidence in the absence of evidence from anyone within the Minister's office who would have personal knowledge as to the time at which the materials were in fact put before the Minister. Her Honour found that the Minister had devoted no more than 15 minutes to his consideration of the material, and that the Minister could not have engaged in the intellectual process of actively reviewing the material that was required. 54 In Carrascalao, the Full Court made a number of statements of principle relevant to the present case. Firstly, at [32], the Court acknowledged, referring to Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30], that the phrase "proper, genuine and realistic consideration" can, if taken out of context, encourage a slide into an impermissible merits review: see also Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [42]. However, the Full Court considered that the phrase could permissibly be used to describe a contention that the Minister was under a legal obligation to consider the merits of a particular case and that such consideration had to be meaningful. 55 Secondly at [46], the Full Court held that the obligation to give "proper, genuine and realistic consideration" to the exercise of the power under s 501(3) of the Act requires the Minister to engage in an "active intellectual process" in assessing the merits of the case. 56 Thirdly, at [47], the Full Court observed that the Court's assessment of whether the Minister engaged in such an active intellectual process requires an evaluative judgment, taking into account the available evidence and reasonable inferences. The Full Court emphasised that each case necessarily turns on its own particular facts and circumstances as established by the evidence. This includes the nature and volume of the material placed before the Minister, as well as other matters arising from the statutory context. 57 Fourthly, at [60], the Full Court stated that features of the statutory framework, including the requirement that the Minister make the decision personally, the displacement of the requirements of natural justice and the limited scope of the representations that may be made in seeking to have the Minister revoke a cancellation decision, highlighted the need for the Minister to exercise the power under s 501(3) of the Act with appropriate care and attention. 58 Fifthly, at [48], the Full Court held that a finding that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the applicant for judicial review carries the onus of proof.

Application of the relevant principles 59 Taking the relevant principles into account, attention may be directed to the facts and circumstances of the present case. 60 The Minister was required to engage in an "active intellectual process" in assessing the merits of the case, but a question arises as to what material the Minister was required to apply that intellectual process to. In Carrascalao at [61], the Full Court accepted that the Minister was entitled to obtain assistance from Departmental officers and members of his private staff, including having them prepare summaries of information for review. The Full Court added that this was subject to at least three qualifications, including that the Minister's entitlement to have regard to a summary must take into account any statement or indication that advises the Minister of the need to personally consider relevant information in a document that has been summarised. The Full Court's reasons suggest that in some circumstances the Minister may be entitled to confine his consideration to reading a summary of the material before him, and is not required to read the material itself: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31; Tickner v Chapman (1995) FCR 451 at 464, 477, 495-496. However, the Full Court observed that the Departmental submission had specifically directed the Minister's attention to the various attachments, and that the statement of reasons indicated that the Minister had regard to a number of particular matters that would have required him to read portions of the attachments. The Full Court apparently proceeded on the basis that the Minister's obligation to apply an active intellectual process to the merits of the case required him to at least read the material that the statement of reasons indicated he had read and the material that the submission indicated he should read. The Full Court's conclusion was that the Minister could not have read that material within the time available to him. 61 In the present case, the Minister's counsel expressly eschewed any submission that the Minister was entitled to confine his reading to a summary of the material contained in the Department's submission, the draft decision record and draft statement of reasons. There were a number of other documents before the Minister, including sentencing remarks, pre-release reports, and correspondence from the Department to the appellant. The material consisted of about 130 pages in total. The Minister accepted, as we understand it, that he was required to read at least the bulk of the documents accompanying the submission. That concession seems to have been made because, like in Carrascalao, the statement of reasons is replete with statements or indications that the Minister had read those documents. 62 The evidence before the primary judge clearly established the timing of three relevant events on 14 August 2017: At 9.16 am, the Departmental submission, a draft decision record, a draft statement of reasons and the accompanying documents were placed on the Minister's desk. At 10.14 am, the Minister's office was notified that the Court had quashed the Minister's previous decision of 28 March 2017 to cancel the appellant's visa. At 10.25 am the Minister made the decision under review cancelling the appellant's visa. 63 The appellant's primary contention is that the evidence leads to an inference that the Minister commenced his consideration of the decision and the material before him from 10.14 am on 14 August 2017. As the primary judge found, and the Minister accepts, if the Minister had only commenced such consideration at 10.14 am, the active intellectual process required before the Minister made his decision could not have taken place. The Minister could not have read the relevant material in the eleven minutes between 10.14 am and 10.25 am. 64 However, there is no direct evidence as to when the Minister commenced his consideration of his decision. The primary judge found that the Minister could have commenced his consideration at any time from 9.16 am, and his Honour was not prepared to draw an inference that the Minister commenced his consideration only from 10.14 am. His Honour held that the appellant had not proved that the Minister considered the relevant material for a time that was insufficient to allow him to give active intellectual consideration to the merits of the decision. 65 At the heart of the appeal is a distinction between the making of the decision under review and the intellectual process engaged in anterior to the making of the decision. The decision made by the Minister was to cancel the appellant's visa. However, the making of that decision necessarily involved an anterior intellectual process. The law requires that a decision-maker must give proper, genuine and realistic consideration to the merits of the case, including by the application of an active intellectual process. That anterior intellectual process will necessarily take time - how much time will vary according to the nature of the decision, the statutory regime and the extent of the material the decision-maker is required to consider. In the absence of some statutory requirement to the contrary, there is no restriction upon when the decision-maker may commence his or her consideration of the material relevant to the making of a decision. 66 The question is whether the primary judge erred by failing to draw an inference that the Minister only commenced his consideration of his decision from 10.14 am on 14 August 2017. There are two competing inferences available on the evidence. One is the inference for which the appellant contends, that the Minister commenced his consideration from 10.14 am. The other is that the Minister commenced his consideration at some point in the vicinity of 9.16 am. The appellant bears the onus of adducing evidence sufficient to justify the drawing of an inference that it is more likely than not that the Minister only commenced his consideration of his decision from 10.14 am. 67 It is convenient to begin by examining the evidence that the Minister submits demonstrates that his consideration of the decision and the relevant material could have commenced from 9.16 am on 14 August 2017. 68 First, the Minister relies upon the email sent by Ms McGill to Ms Harris at 9.16 am saying, "The submission is on the Minister's desk for consideration". It can be accepted that by that time, the Department's submission and attachments had been placed on the Minister's desk for the Minister to consider. However, the email does not indicate whether the Minister was at his desk at that time, nor when the Minister commenced his consideration of the material. The Minister contends that the natural meaning of the words "is on the Minister's desk for consideration" is that he had already commenced considering the material, or would do so shortly. The first of these interpretations cannot be accepted - the words used suggest that the material was left for the Minister to consider when the Minister was available, not that he had already commenced considering it. The second interpretation - that the Minister would commence considering the material shortly - cannot be accepted because the words used give no indication of whether the Minister would, for example, begin his consideration within a few minutes or in an hour. 69 Second, the Minister relies upon an entry in the Parliamentary Document Management System (the PDMS entry) created by a Ms Johanna Drake at 9.30 am on 14 August 2017 which indicates that the submission received by email on 11 August 2017 had been printed at the Minister's office and was, "For consideration early Monday, while awaiting notification from DIBP that decision is required". The PDMS entry suggests that Ms Drake expected or intended that the Minister would consider the material while awaiting notification that the Court had quashed the Minister's decision. It does not indicate that the Minister in fact began considering the material while awaiting notification of the Court's order. Although, Ms Drake's role is not apparent from the evidence, the PDMS entry may distinguish the facts of this case from those of Burgess where the evidence was uniform that the Ministers' advisors intended that he should only consider the material after the Court's order quashing the earlier decision had been made. 70 Third, the Minister relies upon his signed statement of reasons which referred to the Minister having "given full consideration to all the information before me in this case". If in fact the Minister gave full consideration to all the information, he must have begun that consideration prior to 10.14 am. In Carrascalao, it was accepted at [131] that a statement of such a kind by the Minister does provide some evidence of its truth. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, it was held at [76] that "[t]he written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account". However, statements of a formulaic kind, or sweeping statements that matters have been considered, will not shield from scrutiny whether in fact they have been considered: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [38]. A broad self-serving statement unsupported by other evidence may readily be displaced by evidence to the contrary. 71 The Minister's signed decision record provides evidence to the contrary. In the decision record, the Minister stated that he had, "considered all the information before me provided by, or on behalf of [the appellant] in connection with the possible cancellation of his Absorbed Person Visa." The reference to "the possible cancellation" was to the decision of 14 August 2017. However, no material had been provided by or on behalf of the appellant in connection with that decision. The Minister expressly chose to make the decision under s 501(3) of the Act, so the rules of natural justice did not apply. The Departmental submission stated that if the Minister proceeded under s 501(3), "[t]he person is not given notice of the cancellation consideration and is therefore not afforded any opportunity to provide the Department with information pertaining to their circumstances or respond to any adverse information, before a decision is made." As the appellant was not notified that the decision was being considered, no information could be provided by him or on his behalf in connection with the decision. While some material concerning the appellant, such as reports referring to his behaviour in prison and his health, had been obtained by the Department from third parties and placed before the Minister, that information cannot sensibly be described as having been provided "on behalf of" the appellant. 72 The Minister's statement was plainly wrong. It demonstrates that he had not paid sufficient attention to the Department's submission and the accompanying material to realise that no material had been provided by or on behalf of the appellant in connection with the decision. That contradicts his assertion in his statement of reasons that he had "given full consideration to all the information before me in this case". That assertion cannot be accepted. 73 Fourth, the broader circumstances of the case provide some support for an inference that the Minister commenced considering the material prior to 10.14 am. The arrangements put in place between the Minister's office and the Department demonstrate an intention by the Minister to make a new decision shortly after the making of an order quashing the March 2017 decision. The Minister knew that the decision would be quashed, given his consent to that course. It would be a practical method of proceeding for the Minister to commence his consideration of the material relevant to the new decision while awaiting notification that the quashing order had been made. 74 It is necessary to next examine the evidence that the appellant contends demonstrates that the Minister did not commence consideration of the relevant material until 10.14 am. 75 First, the appellant relies upon the email from Ms Harris of 11 August 2017 which stated that: The hearing set for Monday has been vacated by the court. Our legal colleagues will keep us updated with the timing of the withdrawal. Please note, we do not have control of the timeframe and the Minister cannot make a decision on this case until the withdrawal is finalised. 76 Ms Harris' statement that the Minister could not make a decision until after the Court had quashed the March 2017 decision was obviously correct. Until that decision was quashed, there was no visa in force for the Minister to cancel under s 501(3) of the Act. However, Ms Harris' statement said nothing about when the Minister could begin to consider the material relevant to making of a fresh decision. 77 Second, the appellant relies upon the email from Ms Kijirah sent at 10.14 am on 14 August 2017 advising that the Court had made orders setting aside the March 2017 decision, and stating "[t]he Minister is now able to consider the submission". The appellant submits that this statement demonstrates that the Minister is unlikely to have commenced considering his decision until after he was notified that the Court had made its order quashing the March 2017 decision. He submits that this statement suggests that, "it was normal practice for the Minister to defer re-consideration of a matter until after any prior decision had in fact been quashed". 78 Ms Kijirah was a legal officer providing advice to the Minister's office as to the timing she considered appropriate. Ms Kijirah's statement reflects her advice that the Minister could now begin his consideration. It is not, however, evidence of a practice that the Minister would not begin his consideration of a submission until notified that an earlier decision had been quashed. 79 Third, the appellant relies upon the heading to the Department's submission, which stated: Timing: following the confirmation of withdrawal from Federal Court of Australia proceedings, please consider by Monday, 14 August 2017, as agreed by your Office. 80 The Department's submission indicates that someone in the Minister's office had agreed that the Minister would "consider" the submission "following" notification of the "withdrawal" of the existing proceeding. The language used in the Department's submission was somewhat loose and imprecise. There was not, for example, any "withdrawal" of the proceeding - there was an order quashing the March 2017 decision. However, the submission does provide support for the appellant's case. 81 Fourth, the Minister's erroneous statement that he had "considered all the information before me provided by, or on behalf of" the appellant supports the appellant's submission that the Minister failed to apply an active intellectual process to the relevant material. The erroneous statement indicates that the Minister did not pay sufficient attention to the material to realise that no information had been provided by or on behalf of the appellant. That is consistent with the appellant's case that the Minister spent only up to 11 minutes considering the material from 10.14 am, and not up to 1 hour, 9 minutes from 9.16 am.

The Jones v Dunkel argument 82 The appellant submits that the primary judge erred in failing to apply the rule in Jones v Dunkel. The appellant relies upon Carrascalao, where the Full Court at [130] applied that rule, stating, "the inferences which we have drawn...in concluding that the Minister did not engage in the requisite active intellectual process, [are] reinforced by the fact that neither he nor his Chief of Staff gave evidence". The rule was also applied in Burgess. In the present case, neither the Minister nor any member of his staff gave evidence as to when he began his consideration of the decision. 83 The Minister submits that no adverse inference should be drawn from his failure to give evidence. He submits that the rule in Jones v Dunkel applies where there is an unexplained failure by a party to call a witness, but that where the uncalled witness is a Minister of State, there is a ready explanation for why he or she has not given evidence personally. The Minister relies upon several judgments, including that of Pincus J in Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548, which have recognised that the performance of ministerial duties would be impractical if a Minister were to spend substantial time in courts being cross-examined about his or her decisions. The Minister has not, however, addressed the issue of whether the rule in Jones v Dunkel should be applied to his failure to call members of his staff to give evidence. 84 As Carrascalao demonstrates, an adverse inference may be drawn against a Minister where he or she does not give evidence. However, there are authorities that have warned against drawing such an inference too readily. In Minister for Immigration v Jia Legang (2001) 205 CLR 507, Kirby J said: [143] Similarly, I would not attach a great deal of significance to (or draw adverse inferences in these cases from) the failure of the Minister to give oral evidence or to submit himself to cross-examination. Although Ministers, whilst holding office, are not immune in this country from giving evidence before courts, a court would not ordinarily hasten to draw an inference that the Minister had deliberately refrained from giving oral evidence because of a concern that the impugned decision would be revealed as affected by bias or that the Minister would be forced to make concessions damaging to the Minister's case. Ministers have to perform highly complex and onerous functions. They carry heavy burdens that severely limit the time available for them to give evidence in individual cases. (Footnotes omitted.) 85 In the same case, Callinan J added: [284] …Adverse inferences may not be so readily drawn against a Minister in this type of litigation as might be drawn against a party who avoids the witness box in other proceedings. … [317] It is unnecessary to decide in this case whether the rule should have application to a Minister in modern times. But on any view it cannot be applied in any unqualified way to a modern Minister of State… (Footnotes omitted.) 86 In Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40, Spender J held: [324] Given the rule in Jones v Dunkel is one of "common sense reasoning" and one which allows parties to satisfactorily explain their failure to call a witness (Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 342 ), there can be no per se rule that a Jones v Dunkel inference is not available where a minister does not testify. [325] However, in most, if not all, cases, because of the factors expressed by Pincus J, and also Kirby J and Callinan J in the passages set out above, the absence of a minister giving evidence in the for the witness box will be easily understood. 87 The words "in most, if not all, cases" used in Haneef should perhaps be replaced by "many cases" since a Jones v Dunkel inference has been drawn in a number of cases in this Court where a Minister has failed to give evidence, including Carrascalao, Burgess, Lebanese Moslem Association, Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 and Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144. 88 In the circumstances of this case, it is unnecessary to decide whether a Jones v Dunkel inference should be drawn because of the Minister's failure to give evidence. We would draw such an inference from the Minister's failure to call Ms McGill to give evidence. It seems probable that Ms McGill, as the officer liaising between the Minister's office and the Department, could have given evidence as to whether the Minister was present when the submission was placed on his desk at 9.30 am on 14 August 2017 and when it was that the Minister began his consideration of the material. 89 The rule in Jones v Dunkel has been described as an application of the principle in Blatch v Archer (1774) 1 Cowp 63 at 65 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". It was entirely within the knowledge of the Minister and his advisors as to when he began his consideration of the material, and it was within his power to produce direct evidence as to that matter. 90 In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the plurality explained at [63]: The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. (Citations omitted.) 91 The rule in Jones v Dunkel has its limits. One is that, although the rule allows the Court to draw with greater confidence an inference unfavourable to the party that failed to call the witness, it cannot be used to fill evidentiary gaps or convert conjecture into inference: Commonwealth v Fernando (2012) 200 FCR 1 at [115]-[117].

What inference should have been drawn? 92 The appellant argues that the primary judge ought to have applied the rule in Jones v Dunkel, and should have drawn an inference that the Minister did not commence his consideration of the decision until 10.14 am on 14 August 2017. 93 In G v H (1994) 181 CLR 387, Brennan and McHugh JJ observed at 390: An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. 94 In Henderson v Queensland (2014) 255 CLR 1, Gageler J said at [89]: Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel: One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed. 95 Further, 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: Jones v Dunkel at 304; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162; Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at [34]. 96 The appellant bears the onus of proving that the Minister failed to give active intellectual attention to the merits of the decision. The appellant has proved the time at which the Minister concluded his consideration by making his decision, but, in circumstances where the appellant's allegation is that the Minister spent a maximum of 11 minutes considering the relevant material, it was also necessary to adduce evidence demonstrating when the Minister is likely to have commenced his consideration. 97 There is evidence from which an inference is capable of being drawn that the Minister only commenced his consideration of the decision from 10.14 am. That evidence includes the advice of one of the Minister's legal advisors, Ms Kijirah that the Minister could begin his consideration after the previous decision was quashed. There is the apparent agreement of the Minister's office, recorded in the Departmental submission, that the Minister would consider the submission following confirmation of the March 2017 decision being quashed. There is also the erroneous statement in the Minister's decision record which indicates that the Minister paid too little attention to the material to realise his error. 98 Ms McGill's email indicates that the Minister could have started his consideration of the decision and the relevant material at about 9.16 am after it was placed on his desk. However, the Minister adduced no direct evidence that he was at his desk at 9.16 am, or as to when he commenced his consideration of the material. There is evidence that Ms Drake intended that the Minister start considering the material prior to the decision being quashed, although there is no evidence of her position in the Minister's office. The circumstances made it logical for the Minister to begin his consideration prior to 10.14 am, but there is no direct evidence that he did so. 99 In our opinion, having regard to the matters set out in the immediately preceding paragraphs, it is more probable than not that the Minister began his consideration of the material after 10.14 `am. In reaching this conclusion we are influenced by the fact that the Minister paid so little attention to the material that he erroneously stated that he had given consideration to all the information had been supplied by or on behalf of the appellant in connection with the decision, when there was no such information. The error in the statement is consistent with the Minister having spent no more than 11 minutes considering the material. If he had commenced his consideration in sufficient time to allow an active intellectual process to be directed to the relevant material, it is probable that he would have realised his error and corrected it. The rule in Jones v Dunkel allows the inference that the Minister began his consideration after 10.14 am to be drawn with greater confidence. 100 In this respect, we respectfully depart from the conclusion of the primary judge. In fairness to the primary judge, it should be mentioned that the appellant was self-represented at first instance, so his Honour lacked the advantage of assistance from counsel and, in addition, his Honour was not taken to the reasoning in Burgess, which we have found helpful. 101 As we have said, the Minister accepted that if the Court were to find that his consideration commenced from 10.14 am on 14 August 2017, he could not have engaged in the active intellectual process in respect of the material that was necessary to discharge his statutory function. Accordingly, the appellant has established error in the judgment of the primary judge and jurisdictional error in the decision of the Minister. That conclusion makes it is unnecessary to deal with the appellant's alternative contention upon the first ground - that even if the Minister commenced his consideration of the material at about 9.16 am on 14 August 2017, that did not allow him sufficient time to engage in the necessary active intellectual process.

The second ground of appeal 102 The appellant's second ground of appeal alleges that the primary judge failed to accord procedural fairness to the appellant as a self-represented litigant. The ground asserts that the appellant should have been told that he could: seek further discovery from the Minister concerning how or when the decision was made; ask the Court to draw inferences from the Minister's failure to put on evidence about what the Minister did to consider the decision; and ask the Court to issue subpoenas to the Minister and/or others to give evidence. 103 The obligations of a court towards a self-represented litigant were considered in Hamod v New South Wales [2011] NSWCA 375: [309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R 177 CLR 292; [1992] HCA 57 . This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R 147 CLR 512; [1981] HCA 46 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. . In MacPherson , Mason J, at [31] 534, noted that: "A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'." [310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just. [311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case. [312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised . Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant . [313] The touchstone at all times remains that of fairness… ... [315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [29] the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality: "[29] A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial." [316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. (Some citations omitted.) 104 In SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [37], these passages from Hamod were cited with approval. In that case, a self-represented litigant claimed that his migration agent had engaged in fraudulent conduct. The trial judge held that the appellant's account could not be considered because it was given from the bar table. Each member of the Full Court held that fairness required that the trial judge inform the self-represented litigant that if he wanted the court to rely on his statements, it was necessary for the appellant to go into the witness box and make those statements formally. Justice Robertson considered at [37], [39] that this was part of the trial judge's obligation to inform the litigant of the relevant procedures of the Court. Chief Justice Allsop and Mortimer J agreed, but went further. The Chief Justice held at [53] that the litigant should have been told of the fundamentally important issues required to make out a case of fraud, and of the possibility of obtaining the presence of the migration agent to give evidence. Justice Mortimer stated at [58]-[59] that the appellant needed sufficient information about the evidence required to make out the allegations of fraud he proposed, but was not informed, even in outline, about what kinds of issues he needed to address. Accordingly, their Honours considered that procedural fairness may require a trial judge to go beyond providing information merely about matters of procedure. 105 In SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15, the Full Court said at [36]-[38]: …His Honour was required to give the applicant a reasonable opportunity to present evidence and to make submissions in support of his applications…In this case, the fact that the applicant was unrepresented exacerbates the procedural unfairness that he encountered. The fact that a litigant is not represented may require a court to take steps to explain its processes and procedures to the litigant to ensure procedural fairness… In the hearing on 15 September 2015, the primary judge made no effort to explain to the unrepresented applicant how he might properly make an application for an injunction under the Federal Circuit Court's rules. Nor did the primary judge explain the other procedures that the applicant might have chosen to utilise. His Honour might, for example, have drawn the applicant's attention to the provision for notices to produce. Bearing in mind that the applicant was unrepresented and that his own uncontested affidavit showed that the subject matter of his claim for injunctive relief was important to him, we consider that the judge's failure to explain the Court's processes and procedures was unfair to the applicant and involved an unreasonable exercise of power. 106 These cases demonstrate that a judge's obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case. That obligation may require that a self-represented litigant be informed of fundamental procedures and processes of the Court (at least to the extent that the litigant has not already received that information from some other source). In some cases, the obligation may extend to informing a self-represented litigant, at least in broad terms, of what must be proven. However, a judge is not required to give legal or tactical advice to a self-represented litigant that would compromise the judge's impartiality and be unfair to the opposing party. The obligation of the judge is not to place a self-represented litigant in the same position as if he or she were legally represented, but to provide sufficient information, so far as is reasonably practicable, in order to allow a trial to be conducted fairly and in accordance with the law. The nature and content of the judge's obligation is informed by the particular circumstances of the case and the necessity to provide a fair hearing for each party while maintaining a position of neutrality. 107 The assessment of an allegation that a trial judge failed to provide adequate information to a self-represented litigant will depend heavily upon the legal and factual context in which it is asserted that the information should have been provided. A party alleging jurisdictional error has the onus of adducing sufficient evidence to prove that allegation: see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24]. A difficulty for the appellant is that he has not sought to demonstrate the circumstances that required that he be provided with the information he claims should have been provided. He has not, for example, produced the transcript of the hearing to demonstrate that the obligation of fairness in the particular situation confronting the primary judge required provision of that information. 108 The appellant had issued a notice to produce to the Minister, resulting in the production of a number of documents. It seems likely that he had the benefit of some legal assistance and advice in doing so. There is no indication that the Minister has other documents directly relevant to the issues that were not produced. Therefore, it is not apparent why the appellant asserts that the primary judge should have informed him that he could seek further discovery. 109 In the absence of a transcript, the appellant has not demonstrated that the circumstances required the primary judge to advise him that he could subpoena the Minister or Departmental officers to give evidence. There is some support from the judgment of Allsop CJ in SZUR for a proposition that in some circumstances such advice should be provided. However, the absence of evidence of the context in which it is said the information should have been provided, it cannot be determined which side of the boundary between procedural advice and tactical advice the information would have fallen on. 110 The provision of information about the rule in Jones v Dunkel would have involved advice about a legal issue, namely the evidentiary significance of the Minister's failure to give evidence or call a witness. It has not been demonstrated that the requirements of procedural fairness required provision of such advice in the circumstances of the case. 111 There is, in addition, a fundamental difficulty posed by the absence of a transcript of the hearing before the primary judge. There is an absence of evidence demonstrating that his Honour did not give the appellant information of the type it is asserted was not given. The appellant's second ground of appeal cannot succeed.

Conclusion 112 The appeal should be allowed on the basis of the first ground of the notice of appeal. The Minister's decision to cancel the appellant's visa should be quashed. I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Murphy and Rangiah.

O'CALLAGHAN J: 113 I am unable, with respect, to agree with the reasoning of the majority's decision to allow the appeal on the basis of the first ground of the notice of appeal. I would dismiss the appeal. In the circumstances, it is sufficient that I only briefly explain the source of my disagreement. 114 In my view, the primary judge correctly found that the appellant had not proved that the Minister failed to give actual intellectual attention to the merits of the decision to cancel the appellant's visa, for the reasons the primary judge gave, and which are summarised in [32] and [33] of the reasons of the majority. 115 It is, in my view, sufficiently clear from the matters set out at [21]-[24] of the reasons of the majority that the Minister intended to make a new decision shortly after the making of the consent order quashing the Minister's March 2017 decision. Because the Minister had consented to an order quashing that decision, he can be assumed to have believed that the decision would indeed be quashed. In those circumstances, it seems to me, it is likely that the Minister commenced his consideration of the relevant materials relevant to the new decision while awaiting notification that the order had been made, and that he gave "full consideration to all information before [him] in this case", as he said he did in his signed statement of reasons. 116 I am unpersuaded by the factor which the majority regards as decisive (at [99]), namely the significance that they attribute to the words at the top of the first page of the Minister's decision that he had "considered all information before me provided by, or on behalf of [the appellant]". The majority's proposition, it seems to me, amounts to saying that those words should have been deleted, because they were inapplicable in the context of the Minister's new decision, and that the only reason the words were not deleted was that they must have gone unnoticed by the Minister because he did not devote sufficient time to considering the information before him. In my respectful view, the failure to delete the formulaic words from the Minister's reasons does not bear one way or the other upon the issue of how much time the Minister spent considering all of the information. 117 In those circumstances, the appellant has not, in my view, proved that the Minister failed to give active intellectual attention to the merits of the decision to cancel the appellant's Absorbed Person visa. 118 On the view that I take, no occasion therefore arises to consider the rule in Jones v Dunkel. 119 I would accordingly dismiss the appeal, with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.