Our reasoning
43 As we explain below under the second ground of appeal, we consider the primary judge was correct to approach this matter on the basis that the Minister was required personally to consider Mr McQueen's representations to him, and could not rely only on a summary produced to him by his officers in the Departmental brief.
44 The primary judge was correct to find that on the evidence it is more likely than not that the Minister had relied on the summary in the Departmental brief and had not considered Mr McQueen's representations for himself. On judicial review, a ground like this does require the Court to draw inferences from the evidence as presented. The standard of proof is the balance of probabilities: is it more likely than not that the Minister did not personally consider the representations by the person whose visa has been cancelled? Inferences may be drawn from different aspects of the evidence. Depending on the facts in any given case, one piece of evidence may be sufficient. In other cases, there may be a series of findings and/or inferences drawn which, cumulatively, may persuade the Court to the requisite standard (or may not).
45 Here, the primary judge set out a series of features of the Departmental brief which he found indicated to the reader of that brief that personal consideration of Mr McQueen's representations was not required. His Honour set those out at [79]. Then at [80] his Honour made findings that the Minister "followed the instruction he was given". In other words, the findings turned on the way the Minister was briefed, which the primary judge had analysed at [79]. The seven factors in [79] of his Honour's reasons were both findings of fact based on the uncontested state of the documentary evidence, and inferences drawn from that evidence.
46 As the Minister submitted, in assessing whether the primary judge's reasoning is affected by error, in the circumstances of this appeal, this Court is in as good a position as the primary judge to assess the evidence.
47 In that context, we see the photograph as probative. We consider it is probative of some sense of urgency around the Minister's decision making. We say "sense" of urgency because, objectively, there was no apparent need for a decision to be made in a little over a day. Mr McQueen's representations had been made a long time before these events. The Departmental brief was cleared on 22 March 2021, a considerable time before the brief was put before the Minister. Mr McQueen was not notified of the Minister's decision until some time after it was made. The Minister could have taken longer to consider the representations and make a decision. However, he did not. As the primary judge found at [6]:
… [T]here was a window of 30 hours and 20 minutes within which the brief was first received by the Minister and the decision was made by him.
48 The brief was received by the Minister around 10am at Parliament House in Canberra. The Minister has sworn the decision was made inside his personal residence in North West Sydney at around 4:20pm on 14 April 2021. We infer that substantial parts of those 30 hours or so are likely to have been occupied with, first, other parliamentary business in Canberra, second, travel to Sydney (it was accepted the Minister travelled by car) and, third, some time for the Minister to be not engaged in work, and to be sleeping, eating and otherwise attending to his personal and family life. Therefore the realistic "window" in which the Minister made a decision was substantially less than 30 hours.
49 For whatever reason, not disclosed on the evidence, there was a sufficient sense of urgency (on the Minister's part, we infer) that proof of the making of the decision was sent by way of a photograph, indeed a photograph taken on a person's lap, in a car. Those circumstances plainly indicate some sense of haste around communicating the making of the decision. The only reasonable inference to draw is that, for whatever reason, there was a sense of urgency or haste on the part of the Minister which necessitated sending a photograph of the page of the Departmental brief that indicated what his decision was.
50 The inference that there was a sense of urgency or haste around the making and communication of a decision is one factor that may support a finding that the Minister based his decision on the summary provided by his Departmental officers. By itself it would not be sufficient, but it is one factor. Of course in the particular circumstances of this matter, specifically where the Minister had elected to make the decision personally, had the Minister explained the circumstances in which the decision was made and the purpose of photographing the decision, it would not be necessary to draw such inferences.
51 Unlike the primary judge (see reasons at [12]), we do not infer any need for urgency or haste from the words at the top of the first page of the Departmental brief:
It is recommended that you make your decision during the business week, in view of the immediate effect of any revocation decision on liability for detention.
52 We accept the Minister's submissions that this is a reference to the practicalities of ensuring a person is immediately released from immigration detention if their visa is restored. Although it may not be a lawful excuse for any delay in releasing such a person, it can be accepted that there may be less staff on duty over the weekends, or at night, both at the detention centre and within the Department, so that communication and release might be practically more complex. In our opinion, this sentence was simply cautious advice from the Department to the Minister to try to ensure that a decision favourable to Mr McQueen could practically result in his immediate release, as the law would have required.
53 Like the primary judge, we attach some significance to the fact that, in the body of the Departmental brief, before a summary of the representations made, appear the words:
The following representations have been made by or on behalf of Mr MCQUEEN in support of his request for revocation.
54 This is likely to encourage the reader to assume the summary is an acceptable substitute for a direct consideration of the representations themselves. As we explain, it is not a summary which in form replicates the way the representations themselves actually appear. Rather, it is a summary organised in a quite different way by Departmental officers.
55 The summary has a number of sub-headings, broadly following the topics set out in Ministerial Direction 79, and to which persons in the position of Mr McQueen have their attention drawn as part of the information and instructions given to them about making representations on revocation. On any view, what is written in this section of the Departmental brief is the author's view of what should be drawn from the representations, by reference to the topics set out in Direction 79. It is a summary which extends just over seven pages. While the summary contains cross references to the source material of the representations themselves, objectively, a summary presented in this way encourages the reader to rely on it as giving a sufficient picture of Mr McQueen's representations.
56 Like the primary judge, we find it is of some significance that, immediately after this summary, the Departmental brief invited the Minister to make a decision, and record it on the decision page by doing no more than circling one of the options presented to the Minister. These options were expressly outcome focussed, rather than reasoning focussed. The Minister was not expressly advised he should himself look through the attachments and at Mr McQueen's representations. For the reasons we explain below, such an exercise is a qualitatively different exercise. Rather, the form of the Departmental brief encouraged the Minister to focus on an outcome, and adopt reasons that had been drafted for him, neither of which directed his personal attention to what Mr McQueen (or his supporters) had said to the Minister, bearing in mind the statute contemplates representations by a person affected to the Minister and the Minister had elected to consider the matter personally.
57 As the primary judge found at [79(5)], the "sign here" tabs, in what was otherwise quite a large folder of materials, were also objectively capable of encouraging the reader to sign off on an outcome based on the summary provided.
58 Further, and in our opinion importantly, the sequence of the Departmental brief was somewhat back to front. This is the point made by the primary judge at [79(6)], and we agree it is a factor to be given some weight. The Departmental brief as presented invited the Minister to record his decision - that is, the outcome, as a first step. This was achieved by the instruction on the very first page of the Departmental brief - "if you decide to consider this case personally, record your decision on, and sign, the Decision Page at Attachment 1". The summary then followed this first page. Attachment 1 followed the summary. The Minister circled "not revoke" and signed the Decision page as evidenced by the photograph. It was only after all these steps that the Minister's reasons, drafted by an officer or officers, appeared in the folder with a second "sign here" tab.
59 The fact that Option (c) on the Decision Page did not include any statement to the effect that Minister had personally considered the representations and the factual material and made his own factual findings (see the primary judge's reasons at [79(7)]) contributes to the overwhelming impression the reader (here, the Minister) would have from the Departmental brief that all he needed to do was look at his officer's summary. The declaration he signed off on did not suggest otherwise. That is the point of the primary judge's emphasis, in [79], that:
the form in which the Submission was expressed and provided to the Minister indicated that personal consideration of that kind was not required.
60 We agree.
61 To these we would add the following factors:
(a) The Departmental brief is structured around the considerations in Direction 79, even though this Ministerial Direction under s 499 of the Migration Act is not binding on the Minister for the purposes of a decision made personally. Nevertheless, the officers having chosen that structure, what it does is present a "complete picture" to the Minister of the considerations he should take into account (by reference to the sub-headings under the main heading "Representations") and the information under each consideration.
(b) There are no markings whatsoever on either the Departmental brief, or on the attachments to the brief. Such markings could have supported an inference that the Minister had given particular attention to some matters, and markings on the attachments could well support an inference that the Minister had looked at those attachments. The absence of markings, alone, would be insufficient to infer the Minister had not read the representations. Nevertheless, it is a further factor that has some probative value, albeit small.
(c) There was a large number of attachments to the Departmental brief; namely 80, comprising 230 pages. Some of these attachments were grouped together but are in fact separate documents. Not all of these were Mr McQueen's representations, but most were. The primary judge made a finding based on his Honour's own reading of the attachments that it would take a person in the Minister's position, familiar with decision making of this kind, at least an hour to read through and consider the representations: see [76]. While the primary judge might have been intending to suggest that the task was therefore not an onerous one (bearing in mind the Minister's arguments about being able to rely on a summary), in our opinion the size of the representations has other probative value. This decision was made within a relatively small window of time. The Minister appeared to have been sufficiently pressed for time to have a photo of his decision taken in a car and sent as proof he made a decision, instead of handing the folder to his staff or communicating the outcome in a regularised way. In these circumstances, we find it unlikely in the extreme that the Minister devoted any time, let alone a further hour on top of reading the Departmental brief, to considering the representations himself. The primary judge made a similar finding at [84] of his Honour's reasons.
62 In reaching that conclusion, and with respect, we would not give the same emphasis to all of the factors set out by the primary judge at [79] of his Honour's reasons. We do not consider that the small space for the Minister's comments is indicative of a likelihood one way or the other in terms of the Minister examining the representations themselves. It is clear from the photograph that the Minister had a hard copy of the documents, and could have annotated them as he saw fit when considering them. He did not need the comment box. We find, in the circumstances, if the Minister needed to speak to one of his Departmental officers, it is unlikely he would have communicated with them using the comment box, and it is more likely (again given what the photograph might indicate) that he would have contacted them in another way.
63 As the Minister submitted, there are also two passages in the reasons drafted by Departmental officers and adopted by the Minister which tend against the primary judge's findings. The first is at [7]:
I have considered the representations made by Mr MCQUEEN and the documents he has submitted in support of his representations
64 The second is at [10]-[11]:
As I am not satisfied that Mr MCQUEEN passes the character test, I have considered, in light of Mr MCQUEEN's representations, whether I am satisfied that there is another reason why the original decision should be revoked.
In undertaking this task, I considered Mr MCQUEEN's representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.
65 The Minister relies on what was said in Maxwell at [31], citing Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [49] (per Flick, Griffiths and Perry JJ). In Maxwell, Perry J said:
As to the second issue, it can be inferred from the evidence that the Minister adopted the draft reasons prepared by the Department: see by analogy in Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311 (Javillonar). In those circumstances, the fact that the Minister's reasons were not prepared by the Minister personally is not relevant: Javillonar at [24]. In particular:
(1) The Department's brief to the Minister contained all of the relevant material to the decision whether or not to cancel the applicant's visa (see above at [14]).
(2) In making the cancellation decision, the Minister signed the following statement:
I have considered all relevant matters including an assessment of the character test as defined by s501(6) of the Migration Act 1958, and all evidence before me provided by, on behalf of, or in relation to Mr Raymond Wilson MAXWELL in connection with the possible cancellation of his Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa.
In so doing, the Minister confirmed that she had personally considered the issues paper and all of the material relied upon by the applicant. In any case, it can be inferred that the Minister considered all of the material before her: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 (Ayoub) at [49] (Flick, Griffiths and Perry JJ).
(3) The Minister made a decision consistent with the draft reasons prepared by the Department.
(4) By crossing-out the "non-cancellation outcomes" on the front page of the issues paper and signing the base of that page, the Minister expressed her intention to select the "Cancellation outcome" option which expressly adopted the draft reasons in stating that "[m]y reasons for this decision are set out in the attached Statement of Reasons" (emphasis added).
66 However, as the Full Court made plain in Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; 256 FCR 455 at [91], the application of such an approach, and the drawing of any inference, will depend on the facts in each case. In Folau, the Full Court said at [89]-[90]:
One might reasonably ask why Parliament would provide the Minister for Immigration and Border Protection with a personal power to cancel a visa (as an alternative to having the decision made by a delegate), and oblige the Minister to give reasons for doing so, if Parliament understood or intended that in every case the Minister would adopt, without change, the draft reasons prepared by departmental officers. Such a practice has a tendency to undercut Parliament's intention to provide a right to merits review where a visa cancellation decision is made by a delegate rather than by the Minister personally.
The power for the Minister to personally decide to cancel a visa pursuant to s 501(2), coupled with his obligation to provide reasons for the decision pursuant to s 501G, cannot mean that it is permissible to merely rubber stamp reasons prepared by the Department, and the Minister is required to do more than just review reasons prepared by somebody else. The Minister must engage in an active intellectual process (Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [46] (Griffiths, White and Bromwich JJ)) and he must give proper, genuine and realistic consideration to the merits of the particular case: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Before adopting any draft reasons as his own the Minister must decide that they accurately reflect his own reasons: W157/00A at [39].
67 However, in Folau at [92], the Full Court concluded, as a matter of fact:
In the present case the materials show that the Minister:
(a) was provided all the relevant materials to make a personal decision in relation to Mr Folau's case;
(b) selected the option in the Submission which stated that he wished to consider Mr Folau's case personally, and signed and dated it;
(c) selected the "cancellation outcome" in the pro forma decision which included statements that the Minister had decided to exercise his discretion to cancel Mr Folau's visa and that "[m]y reasons for this decision are set out in the attached Statement of Reasons", and signed and dated it; and
(d) signed and dated the draft reasons.
That provides a strong basis to conclude that the Minister gave proper consideration to the merits of Mr Folau's case and after doing so adopted the draft reasons as his own reasons. While the admitted facts point to a contrary inference, they are insufficient to outweigh what are, in effect, express statements by the Minister that he personally made the decision for the reasons he signed and dated.
68 As the Minister pointed out, those same facts are present in the current case.
69 However, the finding of the primary judge impugned by ground 1 is not the same as the question whether the Minister "rubber stamped" reasons prepared by others, or did not genuinely adopt the drafted reasons as his own. Those matters arise on the Notice of Contention, which is not necessary to decide.
70 The primary judge's finding was different. It was about whether the Minister had, personally, considered Mr McQueen's representations rather than only considering his Department's summary of them. In the context of that finding, and contrary to the Minister's submissions, it is not necessary to find the Minister was "dishonest" in the two passages in his reasons extracted above. Indeed, it is likely that, in accordance with the instructions from his Departmental officers, the Minister was content to adopt those statements in the draft reasons because he had considered his Department's summary of the representations. These passages in the reasons more likely than not indicate the Minister, like the author of the draft reasons, equated the Departmental summary with the representations themselves. These two passages do not affect our view that the primary judge was correct to find that the Minister had not personally read and considered Mr McQueen's representations, but had relied on the summary provided to him.
71 In oral argument, senior counsel for the Minister submitted that it was "not the natural process" to make the finding made by the primary judge. We understood this to suggest there was or should be some presumption that the Minister did indeed directly look at Mr McQueen's representations because they were part of the material given to him.
72 We do not accept that submission. This is an unusual and somewhat bizarre factual situation. There is nothing "natural" about the process disclosed by the evidence. In circumstances of no objective urgency or pressing expedition and after long Departmental delays, the Minister gives himself not much more than a 24 hour period in which to make a decision with profound effects for Mr McQueen's life, a period during which the Minister drove (or was driven) from Canberra to Sydney and which included a period of time overnight, and where the Minister has sworn that he made his decision inside his residence in Sydney but then for some reason the proof of the decision is a photograph taken on the lap of a person in a car. If the process had been interrogated further, perhaps a clearer picture would have emerged. In these circumstances, there is no room for any presumptions or assertions about what is, or is not, a "natural" decision-making process.
73 The first ground of appeal must be rejected.