the factual question
60 I now turn to the question of fact: does the evidence establish on the balance of probabilities that the Minister failed, in the relevant sense, to have regard to the character references attached to the letter of 21 January 2000?
61 I accept the proposition put forward by Mr Williams that a mere assertion in general terms that a decision-maker has had regard to a matter does not necessarily show that in fact he or she did so: Minister for Aboriginal Affairs v Western Australia, at 60. Thus the general assertion in the decision record that the Minister had "considered all relevant matters" cannot be conclusive. Nor does such an assertion necessarily negate any inference that may be available from other evidence that a decision-maker failed to have regard to matters he or she was required to take into account. The evidence as a whole must be considered.
62 In this case, both parties treated the decision record and the statement of reasons as evidence of the Minister's decision-making process, although they drew different inferences from the documents. It is therefore necessary to examine these documents to determine whether the evidence as a whole supports the applicant's contention that the Minister did not have regard to the information in the character references when making his decision. In my opinion, there are a number of factors suggesting that, contrary to the applicant's submissions, the Minister did have regard, in the relevant sense, to the character references.
63 First, the agent's letter of 21 January 2000, together with the character references themselves, were attached to the draft decision record provided to the Minister on 29 June 2000. A copy of the agent's letter of 30 April 2000, which specifically mentioned the character references, was also attached to the draft decision record. I infer, therefore, that the critical documents were before the Minister at the time he made his decision by endorsing the decision record on 7 July 2000.
64 Secondly, the statement of reasons specifically says that in exercising his discretion to refuse the visa, the Minister
"took into account all matters referred to in the document titled 'Issues For Consideration' accompanied by [the minute of 29 June 2000] including evidence of [the applicant's] past and present general conduct".
I interpret this statement as intending to convey that the Minister took into account not only the matters actually set out in the text of the draft decision record, but the matters referred to in that document. Among the matters referred to in the decision record is the fact that the applicant's agent had made submissions on his behalf in the letter of 21 January 2000. Moreover, the character references attached to the letter of 21 January 2000 answer the description of "evidence of the [applicant's] past and present general conduct", since they refer to his work in the community and his "good behaviour". The statement of reasons, although expressed in general terms, therefore provides affirmative evidence that the Minister gave consideration to the contents of the character references.
65 Thirdly, the Minister's reasons should be given a beneficial construction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272. In construing those reasons, it must be remembered (as Mr Williams conceded) that it was open to the Minister to give little or no weight to the character references. I have pointed out that the references did not address the issues that had been identified as central to the question of whether the applicant satisfied the character test. Moreover, as was recently reaffirmed in Minister v Jia, at [65], per Gleeson CJ and Gummow J, "character" for the purposes of s 501(6)(c) is:
"a matter of endorsing moral qualities, that is to say, disposition rather than general reputation."
It is perhaps not surprising in view of the nature of the character references that the reasons do not in terms state why the Minister found them unpersuasive on the critical issues. A fair reading of the reasons suggests that the Minister took the view that the applicant's history (as the Minister saw it) of dishonest contraventions of Australian migration laws and other criminal conduct was not offset by the perceptions of his referees that he was a person of good character and conduct.
66 Fourthly, in my opinion, there is nothing improbable in concluding that the likelihood is that the Minister read the material supplied to him, including the character references. The material was not voluminous, and could have been read by the Minister within a relatively short time. This is not a case, for example, where the evidence casts doubt on the ability of the Minister to have considered the relevant material in the time available to him: cf Minister v Western Australia, at 61-62. Moreover, as I have indicated, the conclusion that the Minister read the references is supported by the statement of reasons.
67 I should add that the text of both the letters of 21 January 2000 and of 30 April 2000 contain specific mention of the character references. Indeed, the letter of 30 April 2000 includes what I would regard as a fair summary of the substance of the references. Even a relatively cursory reading of the letters would have brought home to the Minister that the applicant's referees believed that he was a person of good character; that they regarded him as a respectable member of the community who participated in community activities; and that they considered that there was nothing negative in his life.
68 I think that the likelihood, on the evidence as a whole, is that the Minister did read the character references; in any event, I am not satisfied on the balance of probabilities that he did not. But even if the Minister confined himself to reading the submissions prepared by the applicant's agent, he would have appreciated and been able to "have regard to" the main points made in support of the applicant by the referees. It must be remembered that the summary of the character references was prepared by the applicant's own agent. It is difficult to see why it would not be sufficient compliance with s 54(1) of the Migration Act for the Minister to determine what weight was to be accorded the character references on the basis of the agent's summary of their contents. The provision requires the Minister to have regard to "all the information" in the application. In my view "information" contained in character references is capable of being conveyed by a reasonably accurate summary prepared by the applicant's agent.
69 I do not think that the statement in par 8 of the decision record that "[c]omments from the above submissions have been included in this decision record, where relevant" detracts from the conclusion I have reached. That statement cannot reasonably be understood as an invitation to the Minister to refrain from reading or considering anything other than the comments set out in the draft decision record. If that had been intended, there would have been little point in attaching to the draft decision record the submissions and the related documentation received from the applicant's migration agents. In my view, the statement in par 8 was merely intended to draw to the Minister's attention that the principal responses of the applicant had been incorporated into the draft decision record. Paragraph 8 did not say or imply that everything that might be relevant to the applicant's case had been reproduced in the draft decision record and that, accordingly, the Minister had no need to read the submissions advanced on behalf of the applicant.
70 Nor do I accept the applicant's argument based on what is said to be a failure by the Minister to state that he placed little or no weight on the character references. Mr Williams argued, on the basis of the majority judgment in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, at 481, that if the Minister was actually induced to come to his decision because he placed no weight on the character references he was obliged by s 501G(1)(e) to disclose that element in the reasoning process. For the reasons I have given, a fair reading of the decision record and the statement of reasons discloses that the Minister did consider the references, but gave them little or no weight in deciding that he was not satisfied that the applicant had passed the character test.
71 Finally, in my view, the rule of evidence in Jones v Dunkel does not assist the applicant. Assuming that rule to apply in the present case, the unexplained failure of the Minister to give evidence does not provide positive evidence that he did not have regard to the character references, but leaves the Court in a position where opposing inferences can be drawn more confidently because they are not contradicted by the person who has knowledge of the relevant events: Minister v Western Australia, at 62. The reasons of the Minister are in evidence. As I have explained, the evidence suggests that the Minister did have regard to the character references. In short, the inferences that the applicant seeks to draw have been contradicted by the Minister's statement of reasons.
72 I should add that some observations in Minister v Jia suggest that the principle in Jones v Dunkel may not apply to Ministers whose personal decisions are challenged in judicial review proceedings in the same way as it does to other litigants who choose not to give evidence: see at [143], per Kirby J; at [284], per Callinan J. It is not necessary to decide whether these observations, which were made in a case involving claims of actual bias against the Minister, apply to the circumstances of the present case.
73 In my opinion, on the balance of probabilities, the Minister gave realistic consideration to the information contained in the character references by means of an "active intellectual process". He therefore complied with the requirements of s 54(1) of the Migration Act. It follows that the applicant has not satisfied me that the Minister did not "have regard to" the references. Accordingly, the applicant has not made out the claim for relief remitted to this Court.