Consideration and determination
47 Applying the above legal principles to the applicant's circumstances, I will now explain why I find that his judicial review challenge fails. These reasons substantially reflect the Minister's submissions, with which I agree.
48 First, both Mr Fleming's evidence and contemporaneous documentary evidence establishes that the Minister was in possession of the relevant materials relating to the applicant's case from about 3.30 pm on 26 May 2020, nearly two days before the impugned decision was ultimately made. The only difference between the draft documents given to the Minister and the final version of the submission and statement of reasons signed by the Minister, was the insertion of the correct date of the Court orders, which in the scheme of things is a relatively minor change.
49 The period of time in which the Minister was in possession of the relevant materials is significantly longer than in other cases where the Court has inferred that the Minister failed to engage in the requisite active intellectual process. The applicant appears to accept that the Minister received the materials at this time and that at least "in theory" the time during which the Minister had the materials was sufficient to give proper, genuine and realistic consideration.
50 Secondly, the clear intention of the Department and the Minister's advisers in providing the materials to the Minister was that he would commence his consideration before the Court made consent orders. As the email correspondence outlined above demonstrates, the Department took steps to liaise with staff in the Minister's office (Ms Way and Mr Fleming) to ensure that the Minister was provided with the materials for the applicant's case, prior to the consent orders being made. In the particular circumstances, there was no legal reason why the Minister could not begin his consideration of the matter prior to the consent orders being finalised.
51 The Department's intention that the Minister commence his consideration of the materials in advance of the Court's orders is further reflected in the phone calls between the Department and Ms Way and Mr Fleming. Mr Fleming's understanding, following a conversation with Mr Muir, was that the Department wanted to ensure that the relevant documents would be given to the Minister before the Court made the anticipated orders to ensure that the Minister had time to consider the material in case he wanted to make a decision shortly after the Court made the order. Ms Way similarly recorded in an email to Mr Fleming her understanding, based on a conversation with Mr Muir, that the Minister would need to have the documents for review in hardcopy the next day, ahead of potential signing as early as the following day.
52 The reason for this urgency is reflected in the draft statement of reasons. In relation to the question whether to provide the opportunity to the applicant to be heard in relation to the cancellation, the draft statement of reasons states that the applicant posed a risk to the Australian community which the Australian community should not tolerate, and that a swift decision following the Court's orders would allow the applicant to be immediately re-detained, ensuring that the applicant spent little (if any) time in the community.
53 Thirdly, there is clear evidence of the Department's advice that the Minister commence consideration of the materials and that this advice was conveyed to him. Mr Fleming's evidence, which I accept, is that when he provided the materials to the Minister, he advised the Minister that the Department wanted the Minister to look at those materials as it was anticipated that the Court would be making orders to set aside the first decision the next day. Moreover, the "timing" section of the draft submission itself makes clear that it was being provided in anticipation of consent orders being made, and the Minister was to review the material "at [his] earliest convenience". I do not accept the applicant's submission that it is significant that no direction was given to the Minister by the Department regarding the timing of his decision and his consideration of the materials. Mr Fleming's evidence is persuasive. Moreover, an experienced Minister such as this Minister would have had no difficulty in appreciating why the material was being briefed to him in advance of the anticipated consent orders as well as the importance of being able to make an informed decision promptly once it was known that the consent orders had been made. Mr Fleming's advice would have assisted that appreciation.
54 Fourthly, the applicant has not pointed to any aspect of the Minister's reasons that suggests that he had insufficient time to give proper consideration to the applicant's case. For what it is worth (noting the limitations of a "tick the box" approach), this highlights an important factual difference between this case and Chetcuti, upon which the applicant placed heavy reliance.
55 Fifthly, it is notable that the Minister not only completed in his handwriting the pro forma parts of the Department's submission outlining the various options open to him in this case and also signed the 35 page statement of reasons, but he also personally initialled each and every page of the 35 page statement of reasons. It might reasonably be inferred from this step that the Minister had read each of those pages. The absence of the Minister's initials on each and every page of the detailed Attachments to the statement of reasons does not of itself give rise to an inference that the Minister did not properly engage with that material and/or with the summary of that material provided to him in the Department's brief. Even if it be the case that the Minister spent only approximately 20 minutes on 28 May 2021 reviewing the Department's revised submission and draft statement of reasons (see [21] above), this would not ground an inference that these materials were being read by him for the first time.
56 In asking the Court to draw an inference that the Minister departed from the advice of his Department and advisers, namely to review the relevant material before the Court made orders, the applicant appeared to rely on four factors, each of which is rejected.
57 First, the applicant notes that the Minister's diary shows that he was occupied for large periods during the time that the Minister was in possession of the relevant materials. The applicant argues that it is "inherently unlikely" that the Minister would consider the matter until called on to make a decision, because this would be inefficient for a busy Minister.
58 That submission is rejected. It is contrary to the evidence outlined above, which makes clear that the Department and the Minister's advisers took deliberate steps to ensure that the Minister had the materials and could commence his consideration beforehand. Although it was not certain that the Court would quash the first decision in accordance with the proposed consent orders, there was no reason to think that the Court would not make those orders. It is more likely that the Minister would have acted on the advice of his Department and advisers to review the materials in advance of the consent orders being made, than that the Minister would ignore that advice. Moreover, the evidence of Mr Fleming in cross-examination indicated that frequently time set aside in the Minister's diary for particular events may not be all used up and it is not unusual for the Minister to take advantage of such opportunities to attend to other tasks.
59 Secondly, the applicant relies on the fact that the Minister does not remember how long he spent considering the brief before he made the decision to cancel the applicant's visa, or whether he read the statement of draft reasons before he made the decision to cancel the applicant's visa. As noted above, the applicant argued that it is implausible that the Minister does not remember reading the material, having regard to its volume and the facts of the case .
60 In the interrogatories, the Minister was asked two very specific questions about his decision-making process. That the Minister does not remember how long he spent considering the matter, or whether he read the draft statement of reasons before he made the decision, is hardly surprising. The decision was made over a year ago. Despite the limitations of the statistical material placed before the Court regarding the number of decisions made personally made by a Minister under Pt 9 of the Migration Act, it may be inferred that the Minister was personally involved in a significant number of visa cancellation decisions. The matters that come before the Minister for his personal consideration are inherently likely to be those involving complex facts and difficult questions of judgment. That is particularly so for personal decisions under s 501(3), all of which require the consideration of the national interest (s 501(3)(d)).
61 In those circumstances, that the Minister does not now remember the specific details of the decision-making process in the applicant's case provides no basis for inferring that the Minister did not read the materials at all. Even if it is accepted that the applicant's case had unusual aspects, it does not follow that an adverse inference arises merely because the Minister was unable to recall the amount of time he spent reviewing the Department's submission and the draft statement of reasons. It is significant that the Minister had in his possession for almost 48 hours the Department's draft submission and draft statement of reasons, together with all the attachments.
62 Thirdly, the applicant's reliance on three previous judgments of this Court (namely Carrascalao, Burgess and Chetcuti), which it adduced for the purpose of demonstrating a purported tendency of the Minister not to give proper, genuine and realistic consideration to the merits of the case before him was rejected as inadmissible under s 97 of the Evidence Act 1995 (Cth). The relevant principles governing the admissibility of tendency and coincidence evidence were helpfully discussed by the Full Court in CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; 277 FCR 201. In particular, the Full Court emphasised that evidence could not satisfy the thresholds of relevance or significant probative value in respect of the particular grounds of review in that case given its selectivity (see at [42]-[44] per Jagot, Yates and Stewart JJ). Although those remarks were directed to grounds of apprehended or actual bias, I consider that they are equally applicable here.
63 Moreover, the three previous judgments which the applicant sought to adduce in evidence are judgments in which it was held that the particular Minister failed to give proper, genuine and realistic consideration to the similar matters are insufficient to establish what the applicant claims to be a tendency. That is because there are only three such cases and it may be inferred that they constitute a small fraction of the numerous personal decisions made by the Minister under Pt 9 of the Migration Act since 1 July 2016. There is a significant distinguishing feature of the present case to those three earlier cases, namely that the Minister was provided with the relevant materials two days before the impugned decision was made. Finally, it is notable that unlike Burgess and Chetcuti the Minister was specifically asked by his Department and personal staff members to consider the materials in advance of the anticipated consent orders being made by the Court. For these reasons, I ruled that the proposed tendency evidence was inadmissible.
64 Fourthly, contrary to the applicant's contentions, this is not an appropriate case in which to draw an adverse inference from the fact that the Minister has not given evidence apart from answering the interrogatories, relying on the principles in Blatch v Archer at 65 per Mansfield LJ and Jones v Dunkel.
65 The rule in Jones v Dunkel is an application of the more general principle in Blatch v Archer that: "All evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted". The rule permits the Court to draw with greater confidence an inference which is otherwise available on the evidence and which is unfavourable to the party that failed to call the witness, where that failure is unexplained.
66 The rule applies only where there is an unexplained failure to call a witness. However, it is well settled that, in many cases, the absence of a Minister from the witness box will be explicable, having regard to the complex and onerous functions of a Minister which constrains the time available for them to give evidence in individual cases. Further, in the present case, the applicant has had the opportunity to administer interrogatories to the Minister, and the Minister's evidence is that he does not remember how much time he spent considering the matter. Both the ministerial advisers who were involved in the Minister's decision-making process have provided evidence and were cross-examined.
67 Further, while the rule in Jones v Dunkel allows an adverse inference to be drawn more readily, as stated in Chetcuti at [91] per Murphy and Rangiah JJ, "it cannot be used to fill an evidentiary gap or convert conjecture into inference". The facts proved "must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture" (Chetcuti at [95] per Murphy and Rangiah JJ).
68 Finally, to the extent that there is a suggestion of a broader argument that the Minister did not have sufficient time to give proper consideration to the applicant's case even if he did commence his consideration before the consent orders were made, and even if this suggestion falls within the applicant's pleaded case (which is doubtful), it too must be rejected. In circumstances where the Minister had the relevant materials for nearly two days, and in the absence of persuasive evidence which demonstrates that he had only very limited time within that period to consider those materials, that inference cannot be drawn. Moreover, as was made clear in Carrascalao, the Minister is entitled to rely upon accurate summaries of materials provided to him by his Department (unless the Department invites the Minister to read particular documents, which is not the case here) (see [41] per Griffiths, White and Bromwich JJ).