Consideration - Ground 1
120 We commence by noting that the procedural decision by a Minister to consider exercising the s 46A(2) power need not be made formally or in any particular form. A Minister may make such a decision by resolving mentally to consider the exercise of the power and without recording that decision in writing. As with the determination of the state of mind of a person in many contexts in the law, the determination of whether a Minister has made the decision will turn on an assessment of the Minister's words and conduct having regard to all the surrounding circumstances.
121 It is also convenient to address at the outset the submission of the appellant that a Jones v Dunkel inference should have been drawn by the Judge by reason of the failure of the respondents to lead evidence from Minister Coleman concerning his consideration of the appellant's circumstances and, in particular, whether he had decided to consider exercising his power to lift the s 46A(1) bar. The Jones v Dunkel principle was explained by the plurality in Kuhl v Zurich Finance Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361:
[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 …
[64] 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)
122 The rule in Jones v Dunkel does not permit courts to use the unexplained failure to call a witness as a means of filling evidentiary gaps or to convert conjecture into inference: Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at [115]-[117].
123 There are two reasons why the appellant's submission concerning the respondents' failure to lead evidence from Minister Coleman is to be rejected. The first is that is properly a matter to have been raised by a notice of contention, and the appellant did not file such a notice.
124 Secondly, and more substantively, the lack of evidence from Minister Coleman was not unexplained. There was evidence at the trial (and ultimately it was common ground) that Minister Coleman had been continuously on personal leave from his Ministerial office from the end of October 2019 until the time of trial (21 and 25 February 2020). Although the circumstances giving rise to Mr Coleman taking the personal leave were not disclosed, it can be inferred that a Minister in the Australian Government would not take such personal leave for such an extended period if it were not for reasons of necessity. That being so, it should be inferred that Minister Coleman was not available to give evidence at trial. It is understandable that in these circumstances the Judge did not accede to the appellant's submission that a Jones v Dunkel inference should be drawn against the respondents by reason that they had not adduced evidence from him.
125 As will be seen, however, we take a different view in respect of the respondents' failure to lead evidence from Mr Mansfield concerning the request of Minister Coleman for a full brief.
126 Our "real review" of the evidence at trial and of the Judge's reasons satisfies us that the Judge did not err in concluding that Minister Coleman had, in or before May 2019, made a decision to consider exercising the power to lift the s 46A(1) bar in respect of the appellant.
127 First, the fact that Minister Coleman did request in the days after 14 May 2019 that the Department prepare a "full brief" on the appellant's family is significant. Three aspects of that request are pertinent: the request emanated from Minister Coleman personally; it was a request for a "full brief"; and the full brief was to be about the appellant's family and not just the appellant. It suggests that Minister Coleman was giving close consideration to the circumstances of the appellant and her family.
128 Secondly, Minister Coleman made the request in the context of having (on the Judge's uncontested finding) personally received and read the April Submission. That Submission contained the Department's seemingly strong recommendation, made on its own initiative, that the Minister lift the bar in relation to the appellant. It is natural to infer that the Submission and that the Departmental recommendation would have led Minister Coleman to consider whether he should lift the s 46A(1) bar applicable to her. At the time Minister Coleman requested the "full brief", he had not resolved the April Submission.
129 The Minister's unresolved consideration of the April Submission is also pertinent to the respondents' submission that it was glaringly improbable that Minister Coleman had made a procedural decision in relation to each member of the appellant's family, as was implicit in the Judge's reasons. In our view, that submission overlooks the fact that the Minister had received in the April Submission a specific recommendation from the Department itself that the bar be lifted in relation to the appellant, and that the appellant at that stage was less than three years old (and accordingly in need of parental care). It would have been obvious to the Minister that a decision to lift the bar in relation to her would require consideration of options available to her parents. Accordingly, we do not accept the respondents' submission that it was "glaringly improbable" that the Minister had made a procedural decision in relation to each member of the appellant's family.
130 The evidence at trial did not indicate whether Minister Coleman had, at the time of requesting the full brief, been personally informed of the High Court's refusal of a grant of special leave to appeal to the appellant's mother on 14 May 2019. It is accordingly unclear whether knowledge of that refusal played any part in his decision to request a full brief. However, Mr Macdonald's email of 21 May 2019 (which stated that the Minister wished to "reacquaint himself with the matter following the HC decision") implies that the Minister had been made aware of the refusal of special leave to appeal and that it prompted his request. In our view, the circumstances that the Minister was prompted to seek the full brief concerning the appellant's family on learning of the High Court decision supports the inference that he did so in the context of, and in connection with, his consideration of the express Departmental recommendation in the April Submission that the s 46A(1) bar be lifted in respect of the appellant.
131 Thirdly, like the Judge, we consider that some inferences as to the content of the Minister's request (conveyed through Mr Macdonald on 17 May 2019) for a "full brief" can be drawn from the submission prepared by the Department in response to that request. Indeed, it is natural to infer that the Departmental submission was responsive to the request made of it. This is in any event made apparent by the opening sentence in each of the submissions provided to the Minister's office in May 2019:
As requested, this submission outlines possible options for Ministerial intervention for [the members of the appellant's family].
(Emphasis added)
132 The submissions, including the Revised May Submission, then proceeded to do just that, namely, set out possible options for Ministerial intervention. As previously noted, these included that Departmental recommendation that the Minister "intervene to lift the bar for the Temporary Protection (Class XD) visa and the Safe Haven Enterprise (Class XE) visa of the whole [of the appellant's family] and a Bridging (General) (Class WE) visa for [the appellant]". This is highly suggestive that the Department was providing the Minister with exactly that which he had requested.
133 It is convenient to address at this point the respondents' submission that the Judge had been wrong to reject Mr Macdonald's evidence concerning the content of the Minister's request. That rejection was in part a credibility based finding. It is a matter on which this Court should, in accordance with usual appellate principles, respect the advantage which the Judge had in seeing and hearing Mr Macdonald give the evidence.
134 In our view, this adverse finding by the Judge cannot be regarded as "glaringly improbable" or inconsistent with other incontrovertible facts. In the first place, Mr Macdonald's asserted lack of memory about his interactions with Mr Coleman seems surprising. That is especially so given that the claims of the appellant and her family can hardly have been matters of routine in the Minister's office. The high public profile of the appellant's claim, the considerable public support for her and her family, and the concerns of constituents communicated by senior political figures (including the Deputy Prime Minister, the Honourable Julie Bishop MP, the Honourable Tony Abbott MP, and the Honourable Barnaby Joyce MP) would have meant that that was so. These circumstances made it surprising that Mr Macdonald had such a limited recollection. It is understandable that the Judge had concerns about this aspect of Mr Macdonald's evidence.
135 Earlier, we set out part of Mr Macdonald's evidence about his email of 23 May 2019. For convenience, we repeat it here:
[7] This email reflects a discussion I had with Minister Coleman about the ministerial submission. I do not remember the specific details of what was said, but the discussion was to the effect that the request for information was not for a ministerial intervention options submission. That is, the request was not for options to allow the Minister to exercise a power to permit the applicant's family to obtain visas. Rather, the request was purely for information to reacquaint himself with the detail of the applicant's family's case.
[8] As with Annexure RM2, my email to Mr Mansfield would have reflected directions by Minister Coleman to me.
136 There are a number of difficulties with this evidence. The first is its lack of specificity. The second is that Mr Macdonald does not make plain the "request" to which he is referring: was it the original Ministerial request which he conveyed to Mr Mansfield on or shortly after 14 May 2019; alternatively, was it a request which immediately preceded Mr Macdonald's email of 23 May 2019? The third is the conclusionary terms in which Mr Macdonald expressed the evidence.
137 In all these circumstances, the Judge's decision not accept Mr Macdonald's evidence and, instead, to rely on the implications arising from the words used (namely, that the email confirmed that the Minister had sought a brief concerning "background/current situations/options") was appropriate. We see no error in the Judge's rejection of this aspect of Mr Macdonald's evidence.
138 In any event, a desire by the Minister to "reacquaint" himself with the detail of the appellant's family's circumstances in the light of the decision of the High Court, is not inconsistent with the Minister having earlier made a procedural decision to consider lifting the bar(s). On the contrary, it is consistent with the Minister wishing to continue his consideration but in the light of the contemporaneous circumstances.
139 It is also convenient to address at this point the respondents' submission that the Judge had been wrong to draw a Jones v Dunkel inference from their failure to adduce evidence from Mr Mansfield. It is pertinent to this submission to note that Mr Mansfield was the person in the Department who had received the request from Mr Macdonald that the Department provide a full brief. It is reasonable to suppose that he could have given evidence concerning the actual terms used by Mr Macdonald in conveying the Minister's request. Given Mr Macdonald's evidence that his actions reflected Minister Coleman's directions, evidence of the precise terms of the request is likely to have assisted the Court in making a finding concerning the content of the Minister's direction to Mr Macdonald and, accordingly, as to Minister Coleman's then state of mind. This being so, we do not accept the respondents' submission that evidence from Mr Mansfield could not have assisted the Court in reaching a decision as to Minister Coleman's reasons for requesting the full brief.
140 We turn to the respondents' submission that there was no evidentiary basis for the Judge's reasoning, at [152], that it was improbable that each of the two May submissions would have contained positive recommendations that the Minister exercise his powers to lift the applicable bars so as to allow the appellant's family to apply for Protection visas unless the Minister had requested that the submission include that option. In support of this submission, the respondents contended that the evidence had disclosed a practice by the Department of including recommendations and submissions even before the Minister had decided to consider exercising the power to lift the bar. Counsel submitted that the Judge had noted this practice at [77] of his reasons. However, the practice to which the Judge had referred at [77], was the practice of the Department preparing "first stage" and "second stage" submissions (the April Submission was an example of the latter).
141 As part of this submission, the respondents also contended that the Judge had been wrong to attach significance to the detailed reasons provided by the Department in the Revised May Submission and to the inclusion of the documents which would have to be executed by the Minister if he accepted the recommendations.
142 It is the fact that the April Submission had been prepared by the Department without a request from the Minister and that it did include a recommendation that the s 46A(1) bar be lifted in respect of the appellant (so as to permit her to apply for a Bridging visa). However, in our view, that is well short of establishing or evidencing the Departmental practice to which counsel referred. But even if that point be put to one side, there was an evidential basis for the reasoning of the Judge which the respondents impugned in this decision. We refer again to the express statement with which each of the May Submissions commenced, namely, that it contained the possible options for Ministerial intervention "as requested". Accordingly, this was not a case of the perhaps more usual kind of the Department providing unsolicited recommendations. Like the Judge, we consider that the Department's inclusion of the documents which the Minister would have to execute if he was to act on the Departmental recommendation is supportive of the inference that it was doing so as part of its response to the express request made by the Minister.
143 Counsel also critiqued the Judge's reliance, at [152], on the fact that each of the submissions prepared in May 2019 had included recommendations that the Minister agree to consider exercising his non-compellable power under s 195A of the Act to grant each member of the appellant's family a substantive visa. Counsel submitted that it was 'difficult to see why this makes it more probable that the Minister had made a procedural decision under s 46A" and that "the more likely inference … is that the Department was unsure what the Minister might be interested in and so it did a detailed submission that covered the field".
144 In our view, this submission overlooks the different manner of expression which the Department used in its recommendations concerning the lifting of the s 46A and s 46B bars, on the one hand, and the exercise of the s 195A power, on the other. In the case of the former, the Department recommended that the Minister exercise those powers whereas, in the case of the latter, it recommended only that the Minister "agree to consider exercising" that power. That is consistent with an understanding by the Department that the Minister had already decided to consider exercising the s 46A and s 46B powers, but had not made such a decision with respect to s 195A.
145 We accept that more than one inference may be drawn from Mr Macdonald's email of 23 May 2019 in which he told Mr Mansfield that, while he "appreciate[d] the options", he was "looking at more of a background/current situation/options" rather than a "MI focused brief". One possible inference is that the Department (probably Mr Mansfield) had misunderstood Mr Macdonald's original request for a full brief. Another is that the outcome of the Federal election which occurred on 18 May 2019 had led to some change of attitude by the Minister. The Judge appears to have been adverting to this possibility when he said that Mr Macdonald's email could suggest some waning of interest by Minister Coleman in lifting the applicable bars, at [153]. We note that his Honour did not express any conclusion about that possibility. Given his rejection of Mr Macdonald's evidence concerning the content of the request made by the Minister (apparently the request immediately preceding Mr Macdonald's email of 23 May 2019), it was not necessary for the Judge to do so.
146 In the oral submissions, counsel for the respondents contended that the Judge had been wrong to consider, as he did at [154] of the reasons, that substantive assessments of the appellant's protection claim and a further assessment of the new information relevant to the appellant's father were "needed". The submission, which seemed to be pressed somewhat faintly, was that this was an error of law, given that s 197C of the Act makes irrelevant, for the purposes of s 198, the fact that Australia may owe non-refoulement obligations in respect of unlawful non-citizens.
147 In our view, the Judge is not to be understood as having made the rather elementary mistake which this submission of the respondents attributed to him. Instead, the Judge was doing no more than making the point that an assessment of the protection claims of the appellant and of the new information relating to her father, were yet to be undertaken and that these circumstances provided part of the context making it unsurprising that the Minister had requested that the full brief canvass the options of him lifting the applicable bars so as to allow those assessments to be made.
148 Finally, and contrary to the respondents' submissions, we do not regard the decision of the Minister on 3 September 2019 not to consider lifting the s 46A bar in relation to the appellant as being inconsistent with the Minister having made a contrary decision in May 2019. That is especially so if it was Minister Dutton who made the decision on 3 September 2019. But even if it was Minister Coleman, the fact is that Ministers can change their minds.
149 We will consider in relation to Ground 2 the evidence concerning the Minister's response to the Revised May Submission. For the moment, we indicate that, contrary to the respondent's submission, we do not regard the failure of Minister Coleman to circle either "Agreed" or "Not Agreed" in the Departmental recommendation as casting light on the question of whether he had made the relevant procedural decision.
150 For these reasons, we are not satisfied that any of the errors imputed by the respondents to the Judge's reasons are established. On our review of the materials, we consider that the decision of the Judge was correct.