Ground 1
26 The learned primary judge correctly identified, at [19], that whether the Minister misunderstood the operation of s 501(3) of the Act was a question of fact. Once again therefore, the onus of proving that fact fell on Mr Chetcuti. This, too, was correctly understood by his Honour, at [26].
27 Responding to the way in which the case was argued before him, the learned primary judge closely analysed the Minister's reasons and the procedural course of conduct within his department following the transmission and receipt of the further submission on behalf of Mr Chetcuti, up to the time when the Minister made his decision. His Honour found that it was more likely than not that, prior to the making of the cancellation decision, the Minister was aware of the further submission but also that it was unlikely and not proved that the Minister "would not have correctly understood that he could, but was not obliged, to take the further submission into account", at [48].
28 The process of reasoning which led his Honour to this conclusion was certainly evaluative but it entailed no exercise of a judicial discretion. Nor did his Honour enjoy some special advantage at trial denied in an exercise of appellate jurisdiction. No oral evidence was called either from the Minister as to what he knew and understood, or anyone else as to what was briefed orally to the Minister (if anything). In relation to the reasons of the primary judge, there is occasion for respect and weight to be given but not for any restraint or deference in relation to his Honour's findings. Rather, this Court's duty on an appeal by way of rehearing is as stated by the majority in Warren v Coombes (1979) 142 CLR 531, at 551:
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
Later in their judgment in that case, the majority stated, at 552:
The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.
29 It is certainly possible to find other cases in which the Court has been similarly pressed to draw an inference that the Minister misunderstood what s 501(3) of the Act permitted in terms of any consideration of a gratuitously made submission by or on behalf of a visa holder: see, for example, Burgess v Assistant Minister for Home Affairs (2019) 271 FCR 181 and Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 and, to like effect on its facts in relation to s 501BA(2), Ibrahim v Minister for Home Affairs (2019) 270 FCR 12. Reference to such cases featured in submissions. They are really no more than authority for what they decide on particular facts and apt to distract from the task of determining the facts of the present by reference to the evidence in the present. In this regard, an observation made by Windeyer J (McTiernan J agreeing) in Teubner v Humble (1963) 108 CLR 491, at 503, is of enduring relevance:
I should add that we were referred by counsel to a number of decisions in other cases of road accidents. But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application ...
30 There is another cautionary note which ought also to be heeded. At common law, there is no general right to be furnished with reasons in respect of the making of an administrative decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. Where such reasons are provided, either in fulfilment of a statutory obligation or voluntarily, it is only natural that the person affected by the decision, particularly if it is adverse, will closely scrutinise them to see if the decision admits of challenge. If, however, it comes to be alleged that the decision is attended with jurisdictional error, it is always a mistake for a court to succumb to the temptation of over-analysis of an administrator's reasons to the end of discerning error. The familiarity of encounter with the emphatic endorsement by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, of the observation made by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, that a reviewing court must not scrutinise such reasons narrowly and with an eye for error, must translate into a principled restraint on the part of the judiciary in relation to the proof of jurisdictional error by reference to an administrator's reasons. If it were otherwise, the informative purpose of reasons would be apt to be subverted by the prolixity of an endeavour on the part of an administrator to anticipate and explicitly negate suggestions that a consideration was or was not taken into account or understanding was or was not held, no matter whether raised on the facts of a given case or not. Further, for the judiciary to expect such an endeavour would make the task of public administration impossible. Thus, a reviewing court must be astute not to infer jurisdictional error from what that administrator has not said in the reasons given: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, at [25], per French CJ, Bell, Keane and Gordon JJ.
31 The process of reasoning which led the learned primary judge to his conclusion that it was unlikely that the Minister would not have understood that he could but was not obliged to take the further submission into account is not attended with any particular error. However, for the reasons given, we are obliged, in the circumstances of the present case, to reach our own conclusion in order to determine whether the judgment below was wrong.
32 The process of Ministerial consideration bridged two days. It is inherently likely, from the Ministerial submission practice revealed, if not an uncontroversial given, that the written submission presented with a decision-making matrix and related documents was prepared and submitted to the Minister prior to the receipt of the further submission.
33 The so-called "binary choice", omitting explicit understanding of an ability but not obligation to take into account a gratuitous submission, said to be revealed by the Ministerial submission and related Ministerial reasons does no more than reflect a position which was at most a hypothetical but unanticipated possibility at the time of their preparation. It is necessary to state, "at most", because it is obvious from internal departmental emails after the departmental receipt of the further submission that that receipt was completely unanticipated - "Please note, this was not anticipated as Mr C has not engaged with the Department.": email by Ms Anastasia Rigas, A/g Manager - Special Interest Team in the Immigration and Citizenship Services Group of the department at 1:57 pm on 2 July 2019, forwarding the further submission to Mr Nigel Muir, Director of the department's National Character Consideration Centre. So there was no need at all on or prior to 1 July 2019 to make any reference to any such understanding. The adoption of reasons which make no reference to such an understanding is neutral as to what understanding was held or, if held, held in error.
34 It is obvious from internal departmental emails that the further submission was received and its potential significance, in terms of offering a contemporary perspective on Mr Chetcuti's health and other personal circumstances, as well as the Minister's ability to consider the same, was understood by officers within the department, up to and including the rank of a relevant Assistant Secretary. These facts are consistent with the inference drawn by the primary judge, at [41], that, prior to making the cancellation decision, the Minister had been appraised of the existence of the further submission and provided with at least an outline of the content of that submission. That inference was embraced, not challenged, by counsel for Mr Chetcuti in oral submissions. Neither, unsurprisingly, was its correctness questioned by counsel for the Minister.
35 Assuming that the Minister was, as the primary judge found, and as was common ground on the appeal, aware of the existence of further submission, Mr Chetcuti's case as to error of Ministerial understanding as to it being possible to consider that further submission rises no higher than error by inferential omission. Yet, fairly read, the reasons and the related Ministerial submission are, as already stated, just neutral. Further, in light of the knowledge and understanding about the further submission revealed by the contemporary, internal departmental emails mentioned, one cannot divorce any assumption or inference of Ministerial awareness of the further submission from an assumption or inference, as, at [48], the primary judge drew, of an expressed understanding on the part of those who may have dealt with the Minister personally that it was open but not obligatory for the Minister to consider the further submission. In that circumstance, the Ministerial decision and related adoption of draft reasons were just a reflection of a choice not to consider a submission, the Minister was aware it was not obligatory to consider, but accepted it was possible to consider. In circumstances where the orders made by the Full Court carried with them the prospect, absent a prompt, personal decision by the Minister, of an obligation to release Mr Chetcuti from immigration detention, it is not hard to see how such a Ministerial choice might have been made. Yet further, given the expressed knowledge of, and understanding about, the further submission in the internal departmental emails, there is no warrant for drawing an inference as grave that advice that it was possible but not obligatory to consider the further submission was deliberately withheld from the Minister (s 140(2), Evidence Act 1995 (Cth)). The point is that Mr Chetcuti carried the onus of establishing the factual foundation for his asserted jurisdictional error. He did not have to prove the facts to demonstration, only on the balance of probabilities. Proof to that standard was not achieved just by pointing to reasons which were neutral. Especially that was so when there is an inference open from the surrounding circumstances which makes it at least just as likely that the Minister was aware it was possible to consider the further submission but chose not to consider it.
36 Mr Chetcuti has failed to discharge the onus of proving the underlying factual premise upon which ground 1 depends.
37 As the appeal must be dismissed, it is unnecessary to consider the issue sought to be raised by the notice of contention.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Logan, Charlesworth and Wheelahan.