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FEDERAL COURT OF AUSTRALIA

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112

Appeal from: Chetcuti v Minister for Immigration and Border Protection


[2018] FCA 477

File number: NSD 1114 of 2018

Judges: MURPHY, RANGIAH AND O'CALLAGHAN JJ

Date of judgment: 2 July 2019

Catchwords: MIGRATION – appeal from a decision of a single judge


of this Court - decision of the Minister, made personally, to
cancel a visa on character grounds– whether the Minister
gave proper, genuine and realistic consideration to the
materials provided by the Department - whether the
appellant established on the balance of probabilities that the
Minister’s consideration of the materials took only eleven
minutes – whether the primary judge should have drawn a
Jones v Dunkel from the failure of the Minister or a
member of his staff to give evidence as to when the
Minister’s consideration of the materials commenced -
whether the primary judge failed to accord procedural
fairness to the appellant, a self-represented litigant, by not
informing him that he could seek further discovery from the
Minister concerning how or when the decision was made;
ask the Court to draw inferences from the Minister’s failure
to put on evidence about what the Minister did to consider
the decision; and ask the Court to issue subpoenas to the
Minister and/or others to give evidence

Legislation: Migration Act 1958 (Cth)

Cases cited: Blatch v Archer (1774) 1 Cowp 63


Burgess v Minister for Immigration and Border Protection
[2018] FCA 69
Carrascalao v Minister for Immigration and Border
Protection (2017) 252 FCR 352
Citibank Ltd v Federal Commissioner of Taxation (1988)
83 ALR 144
Commonwealth v Fernando (2012) 200 FCR 1
G v H (1994) 181 CLR 387
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Hamod v New South Wales [2011] NSWCA 375
Hands v Minister for Immigration and Border Protection
[2018] FCAFC 225
Haneef v Minister for Immigration (2007) 161 FCR 40
Henderson v Queensland (2014) 255 CLR 1
Jeray v Blue Mountain City Council (No 2) [2010]
NSWCA 367
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2011) 243
CLR 361
Lebanese Moslem Association v Minister for Immigration
and Ethnic Affairs (1986) 11 FCR 543
Minister for Aboriginal and Torres Strait Islander Affairs v
Western Australia (1996) 67 FCR 40
Minister for Immigration and Border Protection v Maioha
[2018] FCAFC 216
Minister for Immigration and Border Protection v
Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZGUR (2011)
241 CLR 594
Minister for Immigration and Citizenship v SZJSS (2010)
243 CLR 164
Minister for Immigration v Jia Legang (2001) 205 CLR
507
Plaintiff M64/2015 v Minister for Immigration and Border
Protection (2015) 258 CLR 173
Plaintiff S157/2002 v The Commonwealth of Australia
(2003) 211 CLR 476
SZRUR v Minister for Immigration and Border Protection
(2013) 216 FCR 445
SZVCP v Minister for Immigration and Border Protection
(2016) 238 FCR 15
Trustees of the Property of Cummins (A Bankrupt) v
Cummins (2006) 227 CLR 278

Date of hearing: 20 February 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 119


Counsel for the Appellant: Ms G Costello with Mr A Aleksov

Solicitor for the Appellant: Mr L Bayly

Counsel for the Respondent: Mr G Hill

Solicitor for the Respondent: Mills Oakley Lawyers


ORDERS

NSD 1114 of 2018

BETWEEN: FREDERICK CHETCUTI


Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER


PROTECTION
Respondent

JUDGES: MURPHY, RANGIAH AND O'CALLAGHAN JJ


DATE OF ORDER: 2 JULY 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the primary judge on 11 April 2018 be set aside, and in lieu thereof the
Court makes the following orders:
(a) an order to quash the decision of the Respondent dated 14 August 2017 to
cancel the visa of the Appellant;
(b) the Respondent pay the Appellant’s costs of the proceeding before the primary
judge; and
(c) the Respondent pay the Appellant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT

MURPHY AND RANGIAH JJ:

1 On 14 August 2017, the respondent (the Minister) made a decision under s 501(3) of the
Migration Act 1958 (Cth) (the Act) to cancel the appellant’s Absorbed Person visa. The
appellant’s application for judicial review of that decision was dismissed by a s ingle judge of
this Court on 11 April 2018. The appellant appeals against that judgment.

The grounds of appeal


2 The appellant relies upon the following grounds of appeal:

1. The judgment of the Court that the Minister gave proper genuine and realistic
consideration to the decision under review is wrong and contrary to
compelling inferences, and glaringly improbable, on the documentary
evidence before the Court in light of the principal in Jones v Dunkel [1959]
HCA 8; 101 CLR 298, which his Honour ought to have applied in the
absence of the Minister and/or others giving evidence.
2. The Court below failed to apply procedural fairness to the Appellant by not
explaining to a self-represented litigant in the appellant’s circumstances of
long term closed detention that he could seek: further discovery from the
Minister about how or when the decision was made; ask the Court to draw
inferences from the Minister’s failure to put on evidence about what the
Minister did to consider the decision; or ask the Court to issue subpoenas to
the Minister and/or others to give evidence about how and when the Minister
considered the decision.

3 The bulk of the argument focussed upon the first ground. The issue concerns whether the
Minister considered the material before him for a time too short to allow an active intellectual
process to be applied to the merits of the decision.

4 The appellant’s primary contention is that the Minister spent no more than 11 minutes
considering the material before making his decision. The Minister contends that the evidence
demonstrates that he could have taken up to 1 hour, 9 minutes. The issue devolves largely to
a factual dispute as to the time at which the Minister commenced his consideration of the
material. It requires that careful attention be given to the chronology of relevant events.

Background
5 The appellant is 73 years of age. He was born in Malta and arrived in Australia in 1948 at the
age of two. He held an Absorbed Person visa.
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6 On 25 June 1993, the appellant was convicted of the murder of his wife and sentenced to
24 years imprisonment. On 6 April 2011, he was convicted of assault occasioning bodily
harm upon his cell mate and was sentenced to two years imprisonment, to be served
concurrently with the sentence for his murder conviction. The appellant was refused parole
for reasons including his refusal to engage with the Community Corrections Service and his
lack of remorse for his offending. He served the whole of his 24 year sentence.

7 On 28 March 2017, shortly before the sentence expired, the Minister purported to cancel the
appellant’s visa under s 501(2) of the Act. The appellant sought judicial review of that
purported decision before this Court. The hearing was set down for 14 August 2017. In the
days before the hearing, the Minister decided to consent to his decision being quashed. The
basis for that decision has not been identified in the material before the Court.

8 The Department of Immigration and Border Protection (the Department) put in place
arrangements with the Minister’s office that would allow the Minister to make a fresh
cancellation decision following the quashing of the March 2017 decision. A written
submission attaching a draft decision, a draft statement of reasons and a bundle of documents
relevant to the decision was placed on the Minister’s desk at about 9.16 am on 14 August
2017.

9 On the same morning, a judge of this Court ordered that the Minister’s purported decision of
28 March 2017 be quashed. The Minister was notified no earlier than 10.14 am on 14 August
2017 that the order had been made.

10 At 10.25 am on 14 August 2017, the Minister made a fresh decision to cancel the appellant’s
visa. The decision was made no more than 11 minutes after he was notified of the order. The
evidence concerning the timing of the Minister’s consideration of that decision will be
discussed later in these reasons.

11 The record of the decision made by the Minister was a one page document that commenced
by stating:

I have considered all information before me provided by, or on behalf of Mr


Frederick CHETCUTI in connection with the possible cancellation of his Absorbed
Person visa.

12 The document then set out four options for the outcome of the decision. The Minister struck
through the first three options and marked the fourth to indicate that he adopted it. That
fourth option was as follows:
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I reasonably suspect that Mr CHETCUTI does not pass the character test and I am
satisfied that the cancellation of Mr CHETCUTI’S Absorbed Person visa is in the
national interest. I have decided to exercise my discretion under s 501(3) of the Act
to cancel Mr CHETCUTI’S visa. I hereby cancel Mr CHETCUTI’S Absorbed
Person visa. My reasons for this decision are set out in the attached Statement of
Reasons.

13 The Minister signed and dated the decision record and wrote down the time when it was
signed. A statement of reasons had been prepared for the Minister. The Minister adopted the
statement of reasons by signing and dating it and recording the time it was signed. The time
and date recorded on each document was 10.25 am on 14 August 2017.

14 The Minister’s statement of reasons commenced by considering whether the appellant failed
the character test under s 501(6)(a) of the Act. The Minister concluded that as the appellant
had been sentenced to a term of imprisonment of 12 months’ imprisonment or more, he had a
substantial criminal record within s 501(7)(c) and failed the character test.

15 The Minister then considered whether the cancellation of the appellant’s visa would be in the
national interest. The Minister concluded, taking into account the nature and seriousness of
the appellant’s criminal conduct and the risk he posed to the Australian community, that
cancellation was in Australia’s national interest.

16 The Minister then considered the exercise of his discretion under s 501(3) of the Act. The
Minister took into account the interests of the appellant’s grandchildren; the expectations of
the Australian community; the strength, nature and duration of the appellant’s ties to
Australia; and the extent of impediments he would face if he moved from Australia to Malta.

17 The Minister concluded that:

Having given full consideration to all of the information before me in this case, I
reasonably suspect that Mr CHETCUTI does not pass the character test by virtue of
s 501(6)(a) with reference to s 501(7)(c), and I am satisfied that the cancellation of
his visa is in the national interest.

I am cognisant that where great harm could be inflicted on the Australian community
even strong countervailing considerations are generally insufficient for me not to
cancel the visa. This is the case even after applying a higher tolerance of criminal
conduct by Mr CHETCUTI, than I otherwise would, because he has lived in
Australia for most of his life and from a very young age.
I find that the considerations favouring non-cancellation in particular the best
interests of the affected grandchildren treated as a primary consideration, are
however, outweighed by the national interests’ considerations referred to above and I
have decided to exercise my discretion to cancel Mr CHETCUTI’s Absorbed Person
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visa under s 501(3)(b) of the Act.

18 In the appeal, the appellant does not allege that the Minister’s reasons themselves
demonstrate any jurisdictional error. His allegation of jurisdictional error is confined to a
failure by the Minister to give proper, genuine and realistic consideration to the merits of the
decision.

The evidence before the primary judge and the judgment


19 The appellant represented himself before the primary judge. His Honour recorded the
appellant as having argued that jurisdictional error was established on six grounds. His
Honour rejected each of those grounds. For the purposes of this appeal, it is only necessary to
focus upon his Honour’s reasons for rejecting a ground that the decision was made within
such a short time of the order of the Court quashing the March 2017 decision that the
Minister could not have considered the decision in accordance with the law.

20 The evidence before the primary judge consisted of an application book, an affidavit
annexing documents produced by the Minister in accordance with a notice to produce and a
further affidavit explaining why the Minister had declined to produce other documents
requested under the notice to produce. That material was admitted into evidence without
objection. No oral evidence was given.

21 The primary facts found by the primary judge can be summarised as follows. On Friday,
11 August 2017 at 5.55 pm, Ms Sarah Harris, the Acting Director of the Complex
Cancellation Section of the Department of Immigration and Border Protection, had sent an
email to Ms Kristin McGill, a Departmental liaison officer in the Minister’s office, attaching
a submission, a draft decision and a draft statement of reasons prepared by the Department
concerning the cancellation of the appellant’s visa. The email indicated that a hard copy
would be sent to the Minister’s office on Monday, 14 August 2017. The heading of the
Departmental submission stated that the parties to the existing Federal Court proceeding were
discussing “withdrawal” from those proceedings. The email stated that “the Minister cannot
make a decision on this case until the withdrawal is finalised”.

22 At 9.16 am on 14 August 2017, Ms McGill sent an email to Ms Harris informing her that
“[t]he submission is on the Minister’s desk for his consideration”.

23 At 10.14 am on 14 August 2017, Ms Marian Kijirah, a Departmental legal officer, sent an


email to Ms McGill advising her that the Court had made orders setting aside the Minister’s
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decision of 28 March 2017 and attaching a copy of the sealed orders. The email continued
“[t]he Minister is now able to consider the submission”.

24 At 10.25 am on 14 August 2017, the Minister signed, dated and recorded the time of his
decision.

25 The primary judge observed that the submission placed before the Minister consisted of
seven pages. It was accompanied by a draft decision that consisted of a single page. There
was then an index page followed by 65 pages of attachments from “A” to “S”, and a further
46 pages of attachment “XX”. The draft statement of reasons prepared for the Minister was
11 pages long. The material comprised of about 130 pages in total

26 His Honour also noted that of the twenty attachments to the submission, there were four that
were not before the Minister when he made his March 2017 decision. These were
attachments “Q”, “R” and “S”, which were four pages long in total, and attachment “XX”.

27 The primary judge found that the Minister had not seen the emailed version of the material
sent by Ms Harris on 11 August 2014, and considered only the material placed on his desk on
14 August 2014.

28 His Honour observed that there was no direct evidence as to when the Minister began to
consider the submission. The maximum period during which the Minister could have read
the submission was from 9.16 am to 10.25 am, or 1 hour and 9 minutes. However, there were
only 11 minutes between when Ms McGill learned that the March 2017 decision had been set
aside (10.14 am) and when the Minister made his new decision (10.25 am).

29 Attachment “XX” was the subject of a claim for public interest immunity, which the primary
judge was required to rule upon. His Honour noted that it had taken over 20 minutes to read
the 46 pages of attachment “XX”. His Honour held that, had the Minister only commenced
considering the material after Ms McGill learnt of the Court’s orders at 10.14 am, the
Minister could not possibly have given proper, genuine and realistic consideration to the
decision. His Honour then proceeded to consider the evidence as to when the Minister had
commenced considering the material.
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30 The primary judge observed that the heading to the Departme ntal submission included the
following:

Timing: following the confirmation of withdrawal from Federal Court of Australia


proceedings, please consider by Monday, 14 August 2017, as agreed by your Office.

31 His Honour noted that Ms Harris’ email of 11 August 2014 had stated that “the Minister
cannot make a decision on this case until the withdrawal is finalised”.

32 The primary judge considered that the evidence left it open that the Minister could have
commenced reading and considering the Departmental sub mission and attachments at any
time after they were placed on his desk at 9.16 am on 14 August 2017. His Honour found
that, therefore, the Minister potentially had over one hour to read and consider the material
before him and form a state of mind to proceed as the drafted reasons proposed. His Honour
considered that while the Minister must have been conscious that he could not exercise the
power under s 501(3) of the Act until he knew that the Court had quashed the March 2017
decision, that did not preclude him from preparing to make his new decision in advance.

33 The primary judge was not satisfied that the Minister had only commenced his consideration
of the submission, attachments and reasons at or after 10.14 am. His Honour noted that there
was no evidence that, for example, the Minister was occupied with any other activity between
9.16 am and 10.25 am. His Honour observed that the appellant had the onus of proving that
the Minister did not give the decision proper, genuine and realistic consideration, but that the
evidence was insufficient to allow a conclusion that the Minister did not undertake an active
intellectual process during the period from 9.16 am to 10.25 am, or during a sufficient part of
it, before making the decision. Accordingly, the primary judge rejected the appellant’s
argument that the Minister had failed to give his decision proper, genuine and realistic
consideration.

The parties’ submissions in the appeal


34 In support of his first ground of appeal, the appellant submits that the primary judge erred by
failing to find that the Minister had only commenced his consideration of the decision at or
after 10.14 am on 14 August 2017. The appellant submits that accordingly, his Honour erred
in failing to uphold that the Minister had not given proper, genuine and realistic consideration
to the decision. The appellant relies heavily upon the reasoning of the Full Court in
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352.
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35 The appellant submits the evidence before the primary judge was consistent with the Minister
having only begun consideration of his decision after he was notified that the Court had
quashed the March 2017 decision. He points to the email at 10.14 am stating that “the
Minister is now able to consider the submission”. He also relies upon the email from
Ms Harris. Inferentially, he relies upon the heading to the submission before the Minister. He
submits that these matters suggest that it was normal practice for the Minister to defer
reconsideration of a matter until after any prior decision had been quashed.

36 The appellant submits that there was no material before the primary judge indicating that the
Minister had in fact commenced his consideration of the decision prior to 10.14 am. He
submits that the email from Ms McGill to Ms Harris indicated only that the submission had
been placed on the Minister’s desk at 9.16 am, not that the Minister had begun his
consideration of the decision at that time.

37 The appellant submits that in the material before the Minister, one matter recorded in
attachment “I” was that a previous Minister, having considered cancellation of the appellant’s
visa under s 501(2) of the Act, had decided not to cancel the visa. However, that matter was
incorrectly recorded in the Minister’s statement of reasons, which merely said that the
appellant had been issued with formal Departmental warnings in the past. The appellant
submits that the failure by the Minister to correct this error tends to support an inference that
the Minister did not consider all of the material before him.

38 The appellant submits that the Minister was the only respondent to the application and either
he or a member of his staff should have given evidence as to when he commenced his
consideration of the decision. The appellant submits that a Jones v Dunkel (1959) 101 CLR
298 inference should be drawn against the Minister and that the primary judge erred in failing
to draw such an inference. The appellant submits that would allow the Court to more easily
infer that the Minister did not commence his consideration of the decision until at least
10.14 am.

39 In oral submissions, the appellant raised an alternative argument. That argument is that even
if the Minister commenced consideration of the decision at some point after 9.16 am on
14 August 2017, that still did not allow him sufficient time to give proper, genuine and
realistic consideration to the decision. It is not clear whether that was an argument raised
before the primary judge. The argument was not substantially developed in the appeal.
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40 The Minister submits that the judgment was correct for the reasons given by the primary
judge. He submits that Carrascalao, is readily distinguishable on the facts of that case.

41 The Minister submits that the rule in Jones v Dunkel is inapplicable in this case because it
applies only to an unexplained failure by a party to call a witness, whereas the courts have
recognised that the absence of a Minister of State from giving evidence in the witness box is
readily understandable. Further, the Minister submits that Jones v Dunkel only permits a
Court to draw an inference with more confidence where such an inference is available on the
evidence, but it cannot be used to fill gaps or convert suspicions into inference.

42 The appellant’s second ground of appeal alleges that the primary judge failed to accord the
appellant procedural fairness. The appellant submits that his Honour ought to have explained
to the appellant that he could seek further discovery and that he could ask the Court to draw a
Jones v Dunkel inference, or have subpoenas issued to the Minister or Departmental officers
to give evidence. The appellant relies upon Jeray v Blue Mountain City Council (No 2)
[2010] NSWCA 367 at [6], where Allsop P (as the Chief Justice was then) observed that a
fair hearing involves a litigant understanding the proceedings and having an adequate
opportunity to more or less vindicate his or her rights in Court.

43 The Minister submits that while the Court may give an unrepresented litigant some assistance
to ensure that there is a fair trial, the Court cannot assist an appellant to establish his or her
case. In this case the appellant had issued two notices to produce seeking copies of
documents and filed affidavit evidence and it was only a matter of speculation as to how any
additional steps could have resulted in any further information. The Minister submits that the
primary judge was not required to explain the rules in Jones v Dunkel in circumstances where
that rule did not apply.

44 The judgment of Charlesworth J in Burgess v Minister for Immigration and Border


Protection [2018] FCA 69; (2018) 259 FCR 197 was not referred to by the appellant, and was
only referred to by the Minister in a footnote in his written submissions. After the hearing, the
parties were asked to provide submissions upon the case.

45 The appellant submits that there are striking similarities between Burgess and the present
case. In particular, the heading of the Departmental submission (described at [30] above) was
in the same terms as the opening words of the Departmental submission in Burgess and the
language of the advice given to the Minister was very similar. The appellant submits that like
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in Burgess, the Minister’s advisors intended that he consider the submission only after the
order of the Court had been made. The appellant submits that as in Burgess, Jones v Dunkel
allows an inference to be drawn with more confidence that the Minister did not begin his
consideration until that time.

46 The Minister submits that Burgess is distinguishable. He submits that a critical difference is
that in this case, there is evidence going to when the Minister began his consideration,
whereas in Burgess, there was no such evidence. He submits that the natural way to read Ms
McGill’s email saying that the submission was on the Minister’s desk for consideration is that
he was already considering the submission, or would be shortly. The Minister submits that
the wording of the Department’s submission sheds light on the Department’s intentions, not
the Minister’s. The Minister submits that a Jones v Dunkel inference is not available to act as
a “tiebreaker”.

Consideration
47 The Minister’s decision was made under s 501(3) of the Act. The appellant’s application for
judicial review of that decision was made under s 476A(1)(c) of the Act. The appellant is
required to demonstrate jurisdictional error on the part of the Minister: Plaintiff S157/2002 v
The Commonwealth of Australia (2003) 211 CLR 476 at [76].

48 Section 501(3) of the Act provides, relevantly:

501 Refusal or cancellation of visa on character grounds


Decision of Minister or delegate—natural justice dos not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not
pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in
the national interest.

49 Section 501(4) of the Act provides that the power under s 501(3) may only be exercised by
the Minister personally. Under s 501(5), the rules of natural justice, and the code of procedure
set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s 501(3).
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The first ground of appeal


50 The appellant argues that the Minister committed jurisdictional error by failing to give
proper, genuine and realistic consideration to the merits of his decision of 14 August 2017 to
cancel the appellant’s visa. The appellant’s primary contention is that the Minister’s
consideration of the decision and the relevant material commenced no earlier than 10.14 am
on 14 August 2017 and concluded at 10.25 am, and that was an insufficient time to allow a n
active intellectual process to be applied to the merits of the decision. While the Minister
accepts that eleven minutes would have been an insufficient time to engage in the required
active intellectual consideration, he submits that the appellant has failed to prove that his
consideration did not begin at about 9.16 am.

The relevant principles


51 The appellant relies heavily upon Carrascalao. The circumstances of that case have
substantial factual and legal similarities to those of the present case. The Minister had
decided under s 501(3) of the Act to cancel the visas of Mr Taulahi and Mr Carrascalao based
upon their involvement with outlaw motorcycle gangs. On 14 September 2016, following a
contested hearing and reservation of the judgment, a Full Court ordered that the Minister’s
decisions be set aside. A little over four hours later, and less than an hour after being
provided with a Departmental submission, the Minister made further decisions cancelling the
visas. The Minister’s statements of reasons were found at [127] to be, “replete with
statements to the effect that the Minister had noted, found, accepted, had regard to,
considered and recognised particular matters.” There were 330 pages of material
accompanying the submission in respect of Mr Taulahi and 370 pages in respect of Mr
Carrascalao. The Full Court held at [128] that there was insufficient time for the Minister to
have given proper, genuine and realistic consideration to the merits of the decisions.

52 The judgment of Charlesworth J in Burgess also has substantial factual and legal similarities
to this case. The Minister had cancelled a visa on character grounds under s 501(3)(b) of the
Act in June 2016. On 16 September 2016 at 9.20 am, the Court made an order, with the
Minister’s consent, quashing the June 2016 decision. About 20 minutes later, the Minister
made another decision cancelling the applicant’s visa. The applicant alleged that the Minister
had failed to give proper consideration to the relevant material. A Departmental officer
provided affidavit evidence and was cross-examined at the hearing. The officer gave
evidence that the Minister might have given consideration to the material prior to the June
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2016 decision being set aside. The officer gave evidence that shortly after 9.20 am on 16
September, he telephoned Ms McGill in the Minister’s office to tell her the June decision had
been set aside and that the Minister was able to “consider” the paperwork in relation to a new
decision. The officer then sent an email to Ms McGill stating that the Minister is “now able
to consider the matter again”. Further, the Departmental submission to the Minister
contained the statement, “following confirmation or withdrawal from the Federal Court
proceeding, please consider by 16 September 2016, as agreed by your Office”.

53 Justice Charlesworth found that these communications indicated that the Minister’s advisors
did not intend that the Minister would consider the paperwork necessary for a fresh decision
unless and until the June 2016 decision had first been quashed. Her Honour considered it
reasonable to infer that the Minister would have first given consideration to the material at
the time his advisors considered appropriate. Her Honour observed that the Departmental
officer gave no evidence to the effect that he positively advised the Minister to consider the
materials at any earlier time. Justice Charlesworth found that the evidence supported an
inference that the Minister’s attention was directed to the material soon after the June 2016
decision was quashed, but not before. Her Honour held that this finding could be made with
more confidence in the absence of evidence from anyone within the Minister’s office who
would have personal knowledge as to the time at which the materials were in fact put before
the Minister. Her Honour found that the Minister had devoted no more than 15 minutes to his
consideration of the material, and that the Minister could not have engaged in the intellectual
process of actively reviewing the material that was required.

54 In Carrascalao, the Full Court made a number of statements of principle relevant to the
present case. Firstly, at [32], the Court acknowledged, referring to Minister for Immigration
and Citizenship v SZJSS (2010) 243 CLR 164 at [30], that the phrase “proper, genuine and
realistic consideration” can, if taken out of context, encourage a slide into an impermissible
merits review: see also Minister for Immigration and Border Protection v Maioha [2018]
FCAFC 216 at [42]. However, the Full Court considered that the phrase could permissibly be
used to describe a contention that the Minister was under a legal obligation to consider the
merits of a particular case and that such consideration had to be meaningful.

55 Secondly at [46], the Full Court held that the obligation to give “proper, genuine and realistic
consideration” to the exercise of the power under s 501(3) of the Act requires the Minister to
engage in an “active intellectual process” in assessing the merits of the case.
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56 Thirdly, at [47], the Full Court observed that the Court’s assessment of whether the Minister
engaged in such an active intellectual process requires an evaluative judgment, taking into
account the available evidence and reasonable inferences. The Full Court emphasised that
each case necessarily turns on its own particular facts and circumstances as established by the
evidence. This includes the nature and volume of the material placed before the Minister, as
well as other matters arising from the statutory context.

57 Fourthly, at [60], the Full Court stated that features of the statutory framework, including the
requirement that the Minister make the decision personally, the displacement of the
requirements of natural justice and the limited scope of the representations that may be made
in seeking to have the Minister revoke a cancellation decision, highlighted the need for the
Minister to exercise the power under s 501(3) of the Act with appropriate care and attention.

58 Fifthly, at [48], the Full Court held that a finding that the Minister has not engaged in an
active intellectual process will not lightly be made and must be supported by clear evidence,
bearing in mind that the applicant for judicial review carries the onus of proof.

Application of the relevant principles


59 Taking the relevant principles into account, attention may be directed to the facts and
circumstances of the present case.

60 The Minister was required to engage in an “active intellectual process” in assessing the merits
of the case, but a question arises as to what material the Minister was required to apply that
intellectual process to. In Carrascalao at [61], the Full Court accepted that the Minister was
entitled to obtain assistance from Departmental officers and members of his private staff,
including having them prepare summaries of information for review. The Full Court added
that this was subject to at least three qualifications, including that the Minister’s entitlement
to have regard to a summary must take into account any statement or indication that advises
the Minister of the need to personally consider relevant information in a document that has
been summarised. The Full Court’s reasons suggest that in some circumstances the Minister
may be entitled to confine his consideration to reading a summary of the material before him,
and is not required to read the material itself: cf Minister for Aboriginal Affairs v Peko-
Wallsend Ltd (1986) 162 CLR 24 at 30–31; Tickner v Chapman (1995) FCR 451 at 464, 477,
495–496. However, the Full Court observed that the Departmental submission had
specifically directed the Minister’s attention to the various attachments, and that the
statement of reasons indicated that the Minister had regard to a number of particular matters
- 13 -

that would have required him to read portions of the attachments. The Full Court apparently
proceeded on the basis that the Minister’s obligation to apply an active intellectual process to
the merits of the case required him to at least read the material that the statement of reasons
indicated he had read and the material that the submission indicated he should read. The Full
Court’s conclusion was that the Minister could not have read that material within the time
available to him.

61 In the present case, the Minister’s counsel expressly eschewed any submission that the
Minister was entitled to confine his reading to a summary of the material contained in the
Department’s submission, the draft decision record and draft statement of reasons. There
were a number of other documents before the Minister, including sentencing remarks, pre-
release reports, and correspondence from the Department to the appellant. The material
consisted of about 130 pages in total. The Minister accepted, as we understand it, that he was
required to read at least the bulk of the documents accompanying the submission. That
concession seems to have been made because, like in Carrascalao, the statement of reasons is
replete with statements or indications that the Minister had read those documents.

62 The evidence before the primary judge clearly established the timing of three relevant events
on 14 August 2017:

At 9.16 am, the Departmental submission, a draft decision record, a draft statement of
reasons and the accompanying documents were placed on the Minister’s desk.

At 10.14 am, the Minister’s office was notified that the Court had quashed the
Minister’s previous decision of 28 March 2017 to cancel the appellant’s visa.

At 10.25 am the Minister made the decision under review cancelling the appellant’s
visa.

63 The appellant’s primary contention is that the evidence leads to an inference that the Minister
commenced his consideration of the decision and the material before him from 10.14 am on
14 August 2017. As the primary judge found, and the Minister accepts, if the Minister had
only commenced such consideration at 10.14 am, the active intellectual process required
before the Minister made his decision could not have taken place. The Minister could not
have read the relevant material in the eleven minutes between 10.14 am and 10.25 am.

64 However, there is no direct evidence as to when the Minister commenced his consideration of
his decision. The primary judge found that the Minister could have commenced his
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consideration at any time from 9.16 am, and his Honour was not prepared to draw an
inference that the Minister commenced his consideration only from 10.14 am. His Honour
held that the appellant had not proved that the Minister considered the relevant material for a
time that was insufficient to allow him to give active intellectual consideration to the merits
of the decision.

65 At the heart of the appeal is a distinction between the making of the dec ision under review
and the intellectual process engaged in anterior to the making of the decision. The decision
made by the Minister was to cancel the appellant’s visa. However, the making of that
decision necessarily involved an anterior intellectual process. The law requires that a
decision- maker must give proper, genuine and realistic consideration to the merits of the
case, including by the application of an active intellectual process. That anterior intellectual
process will necessarily take time – how much time will vary according to the nature of the
decision, the statutory regime and the extent of the material the decision- maker is required to
consider. In the absence of some statutory requirement to the contrary, there is no restriction
upon when the decision-maker may commence his or her consideration of the material
relevant to the making of a decision.

66 The question is whether the primary judge erred by failing to draw an inference that the
Minister only commenced his consideration of his decision from 10.14 am on 14 August
2017. There are two competing inferences available on the evidence. One is the inference
for which the appellant contends, that the Minister commenced his consideration from
10.14 am. The other is that the Minister commenced his consideration at some point in the
vicinity of 9.16 am. The appellant bears the onus of adducing evidence sufficient to justify
the drawing of an inference that it is more likely than not that the Minister only commenced
his consideration of his decision from 10.14 am.

67 It is convenient to begin by examining the evidence that the Minister submits demonstrates
that his consideration of the decision and the relevant material could have commenced from
9.16 am on 14 August 2017.

68 First, the Minister relies upon the email sent by Ms McGill to Ms Harris at 9.16 am saying,
“The submission is on the Minister’s desk for consideration”. It can be accepted that by that
time, the Department’s submission and attachments had been placed on the Minister’s desk
for the Minister to consider. However, the email does not indicate whether the Minister was
at his desk at that time, nor when the Minister commenced his consideration of the material.
- 15 -

The Minister contends that the natural meaning of the words “is on the Minister’s desk for
consideration” is that he had already commenced considering the material, or would do so
shortly. The first of these interpretations cannot be accepted—the words used suggest that
the material was left for the Minister to consider when the Minister was available, not that he
had already commenced considering it. The second interpretation—that the Minister would
commence considering the material shortly—cannot be accepted because the words used give
no indication of whether the Minister would, for example, begin his consideration within a
few minutes or in an hour.

69 Second, the Minister relies upon an entry in the Parliamentary Document Management
System (the PDMS entry) created by a Ms Johanna Drake at 9.30 am on 14 August 2017
which indicates that the submission received by email on 11 August 2017 had been printed at
the Minister’s office and was, “For consideration early Monday, while awaiting notification
from DIBP that decision is required”. The PDMS entry suggests that Ms Drake expected or
intended that the Minister would consider the material while awaiting notification that the
Court had quashed the Minister’s decision. It does not indicate that the Minister in fact began
considering the material while awaiting notification of the Court’s order. Although,
Ms Drake’s role is not apparent from the evidence, the PDMS entry may distinguish the facts
of this case from those of Burgess where the evidence was uniform that the Ministers’
advisors intended that he should only consider the material after the Court’s order quashing
the earlier decision had been made.

70 Third, the Minister relies upon his signed statement of reasons which referred to the Minister
having “given full consideration to all the information before me in this case”. If in fact the
Minister gave full consideration to all the information, he must have begun that consideration
prior to 10.14 am. In Carrascalao, it was accepted at [131] that a statement of such a kind by
the Minister does provide some evidence of its truth. In Minister for Immigration and Border
Protection v Sabharwal [2018] FCAFC 160, it was held at [76] that “[t]he written reasons of
the Minister may, and generally will, be taken to be a statement of those matters considered
and taken into account”. However, statements of a formulaic kind, or sweeping statements
that matters have been considered, will not shield from scrutiny whether in fact they have
been considered: Hands v Minister for Immigration and Border Protection [2018] FCAFC
225 at [38]. A broad self-serving statement unsupported by other evidence may readily be
displaced by evidence to the contrary.
- 16 -

71 The Minister’s signed decision record provides evidence to the contrary. In the decision
record, the Minister stated that he had, “considered all the information before me provided
by, or on behalf of [the appellant] in connection with the possible cancellation of his
Absorbed Person Visa.” The reference to “the possible cancellation” was to the decision of
14 August 2017. However, no material had been provided by or on behalf of the appellant in
connection with that decision. The Minister expressly chose to make the decision under s
501(3) of the Act, so the rules of natural justice did not apply. The Departmental submission
stated that if the Minister proceeded under s 501(3), “[t]he person is not given notice of the
cancellation consideration and is therefore not afforded any opportunity to provide the
Department with information pertaining to their circumstances or respond to a ny adverse
information, before a decision is made.” As the appellant was not notified that the decision
was being considered, no information could be provided by him or on his behalf in
connection with the decision. While some material concerning the appellant, such as reports
referring to his behaviour in prison and his health, had been obtained by the Department from
third parties and placed before the Minister, that information cannot sensibly be described as
having been provided “on behalf of” the appellant.

72 The Minister’s statement was plainly wrong. It demonstrates that he had not paid sufficient
attention to the Department’s submission and the accompanying material to realise that no
material had been provided by or on behalf of the appellant in connection with the decision.
That contradicts his assertion in his statement of reasons that he had “given full consideration
to all the information before me in this case”. That assertion cannot be accepted.

73 Fourth, the broader circumstances of the case provide some support for an inference that the
Minister commenced considering the material prior to 10.14 am. The arrangements put in
place between the Minister’s office and the Department demonstrate an intention by the
Minister to make a new decision shortly after the making of an order quashing the March
2017 decision. The Minister knew that the decision would be quashed, given his consent to
that course. It would be a practical method of proceeding for the Minister to commence his
consideration of the material relevant to the new decision while awaiting notification that the
quashing order had been made.

74 It is necessary to next examine the evidence that the appellant contends demonstrates that the
Minister did not commence consideration of the relevant material until 10.14 am.

75 First, the appellant relies upon the email from Ms Harris of 11 August 2014 which stated that:
- 17 -

The hearing set for Monday has been vacated by the court. Our legal colleagues will
keep us updated with the timing of the withdrawal. Please note, we do not have
control of the timeframe and the Minister cannot make a decision on this case until
the withdrawal is finalised.

76 Ms Harris’ statement that the Minister could not make a decision until after the Court had
quashed the March 2017 decision was obviously correct. Until that decision was quashed,
there was no visa in force for the Minister to cancel under s 501(3) of the Act. However, Ms
Harris’ statement said nothing about when the Minister could begin to consider the material
relevant to making of a fresh decision.

77 Second, the appellant relies upon the email from Ms Kijirah sent at 10.14 am on 14 August
2014 advising that the Court had made orders setting aside the March 2017 decision, and
stating “[t]he Minister is now able to consider the submission”. The appellant submits that
this statement demonstrates that the Minister is unlikely to have commenced considering his
decision until after he was notified that the Court had made its order quashing the March
2017 decision. He submits that this statement suggests that, “it was normal practice for the
Minister to defer re-consideration of a matter until after any prior decision had in fact been
quashed”.

78 Ms Kijirah was a legal officer providing advice to the Minister’s office as to the timing she
considered appropriate. Ms Kijirah’s statement reflects her advice that the Minister could
now begin his consideration. It is not, however, evidence of a practice that the Minister
would not begin his consideration of a submission until notified that an earlier decision had
been quashed.

79 Third, the appellant relies upon the heading to the Department’s submission, which stated:

Timing: following the confirmation of withdrawal from Federal Court of Australia


proceedings, please consider by Monday, 14 August 2017, as agreed by your Office.

80 The Department’s submission indicates that someone in the Minister’s office had agreed that
the Minister would “consider” the submission “following” notification of the “withdrawal” of
the existing proceeding. The language used in the Department’s submission was somewhat
loose and imprecise. There was not, for example, any “withdrawal” of the proceeding—there
was an order quashing the March 2017 decision. However, the submission does provide
support for the appellant’s case.

81 Fourth, the Minister’s erroneous statement that he had “considered all the information before
me provided by, or on behalf of” the appellant supports the appellant’s submission that the
- 18 -

Minister failed to apply an active intellectual process to the relevant material. The erroneous
statement indicates that the Minister did not pay sufficient attention to the material to realise
that no information had been provided by or on behalf of the appellant. That is consistent
with the appellant’s case that the Minister spent only up to 11 minutes considering the
material from 10.14 am, and not up to 1 hour, 9 minutes from 9.16 am.

The Jones v Dunkel argument


82 The appellant submits that the primary judge erred in failing to apply the rule in Jones v
Dunkel. The appellant relies upon Carrascalao, where the Full Court at [130] applied that
rule, stating, “the inferences which we have drawn...in concluding that the Minister did not
engage in the requisite active intellectual process, [are] reinforced by the fact that neither he
nor his Chief of Staff gave evidence”. The rule was also applied in Burgess. In the present
case, neither the Minister nor any member of his staff gave evidence as to when he began his
consideration of the decision.

83 The Minister submits that no adverse inference should be drawn from his failure to give
evidence. He submits that the rule in Jones v Dunkel applies where there is an unexplained
failure by a party to call a witness, but that where the uncalled witness is a Minister of State,
there is a ready explanation for why he or she has not given evidence personally. The
Minister relies upon several judgments, including that of Pincus J in Lebanese Moslem
Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548, which
have recognised that the performance of ministerial duties would be impractical if a Minister
were to spend substantial time in courts being cross-examined about his or her decisions. The
Minister has not, however, addressed the issue of whether the rule in Jones v Dunkel should
be applied to his failure to call members of his staff to give evidence.

84 As Carrascalao demonstrates, an adverse inference may be drawn against a Minister where


he or she does not give evidence. However, there are authorities that have warned against
drawing such an inference too readily. In Minister for Immigration v Jia Legang (2001) 205
CLR 507, Kirby J said:

[143] Similarly, I would not attach a great deal of significance to (or draw adverse
inferences in these cases from) the failure of the Minister to give oral
evidence or to submit himself to cross-examination. Although Ministers,
whilst holding office, are not immune in this country from giving evidence
before courts, a court would not ordinarily hasten to draw an inference that
the Minister had deliberately refrained from giving oral evidence because of
a concern that the impugned decision would be revealed as affected by bias
- 19 -

or that the Minister would be forced to make concessions damaging to the


Minister’s case. Ministers have to perform highly complex and onerous
functions. They carry heavy burdens that severely limit the time available for
them to give evidence in individual cases.
(Footnotes omitted.)

85 In the same case, Callinan J added:

[284] …Adverse inferences may not be so readily drawn against a Minister in this
type of litigation as might be drawn against a party who avoids the witness
box in other proceedings.

[317] It is unnecessary to decide in this case whether the rule should have
application to a Minister in modern times. But on any view it cannot be
applied in any unqualified way to a modern Minister of State…
(Footnotes omitted.)

86 In Haneef v Minister for Immigration (2007) 161 FCR 40, Spender J held:

[324] Given the rule in Jones v Dunkel is one of “common sense reasoning” and
one which allows parties to satisfactorily explain their failure to call a
witness (Ghazal v Government Insurance Office of New South Wales (1992)
29 NSWLR 336 at 342 ), there can be no per se rule that a Jones v Dunkel
inference is not available where a minister does not testify.
[325] However, in most, if not all, cases, because of the factors expressed by
Pincus J, and also Kirby J and Callinan J in the passages set out above, the
absence of a minister giving evidence in the for the witness box will be easily
understood.

87 The words “in most, if not all, cases” used in Haneef should perhaps be replaced by “many
cases” since a Jones v Dunkel inference has been drawn in a number of cases in this Court
where a Minister has failed to give evidence, including Carrascalao, Burgess, Lebanese
Moslem Association, Minister for Aboriginal and Torres Strait Islander Affairs v Western
Australia (1996) 67 FCR 40 and Citibank Ltd v Federal Commissioner of Taxation (1988) 83
ALR 144.

88 In the circumstances of this case, it is unnecessary to decide whether a Jones v Dunkel


inference should be drawn because of the Minister’s failure to give evidence. We would
draw such an inference from the Minister’s failure to call Ms McGill to give evidence. It
seems probable that Ms McGill, as the officer liaising between the Minister’s office and the
Department, could have given evidence as to whether the Minister was present when the
submission was placed on his desk at 9.30 am on 14 August 2014 and when it was that the
Minister began his consideration of the material.
- 20 -

89 The rule in Jones v Dunkel has been described as an application of the principle in Blatch v
Archer (1774) 1 Cowp 63 at 65 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”. It was entirely within the knowledge of the Minister and his advisors as to
when he began his consideration of the material, and it was within his power to produce
direct evidence as to that matter.

90 In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the plurality
explained at [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…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.)

91 The rule in Jones v Dunkel has its limits. One is that, although the rule allows the Court to
draw with greater confidence an inference unfavourable to the party that failed to call the
witness, it cannot be used to fill evidentiary gaps or convert conjecture into inference:
Commonwealth v Fernando (2012) 200 FCR 1 at [115]–[117].

What inference should have been drawn?


92 The appellant argues that the primary judge ought to have applied the rule in Jones v Dunkel,
and should have drawn an inference that the Minister did not commence his consideration of
the decision until 10.14 am on 14 August 2017.

93 In G v H (1994) 181 CLR 387, Brennan and McHugh JJ observed at 390:

An inference is a tentative or final assent to the existence of a fact which the drawer
of the inference bases on the existence of some other fact or facts. The drawing of an
inference is an exercise of the ordinary powers of human reason in the light of human
experience; it is not affected directly by any rule of law.

94 In Henderson v Queensland (2014) 255 CLR 1, Gageler J said at [89]:

Generally speaking, and subject always to statutory modification, a party who bears
the legal burden of proving the happening of an event or the existence of a state of
affairs on the balance of probabilities can discharge that burden by adducing
evidence of some fact the existence of which, in the absence of further evidence, is
- 21 -

sufficient to justify the drawing of an inference that it is more likely than not that the
event occurred or that the state of affairs exists. The threshold requirement for the
party bearing the burden of proof to adduce evidence at least to establish some fact
which provides the basis for such a further inference was explained by Kitto J in
Jones v Dunkel:
One does not pass from the realm of conjecture into the realm of inference
until some fact is found which positively suggests, that is to say provides a
reason, special to the particular case under consideration, for thinking it
likely that in that actual case a specific event happened or a specific state of
affairs existed.

95 Further, 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: Jones v Dunkel at 304; Girlock (Sales) Pty Ltd v Hurrell (1982)
149 CLR 155 at 161–162; Trustees of the Property of Cummins (A Bankrupt) v Cummins
(2006) 227 CLR 278 at [34].

96 The appellant bears the onus of proving that the Minister failed to give active intellectual
attention to the merits of the decision. The appellant has proved the time at which the
Minister concluded his consideration by making his decision, but, in circumstances where the
appellant’s allegation is that the Minister spent a maximum of 11 minutes considering the
relevant material, it was also necessary to adduce evidence demonstrating when the Minister
is likely to have commenced his consideration.

97 There is evidence from which an inference is capable of being drawn that the Minister only
commenced his consideration of the decision from 10.14 am. That evidence includes the
advice of one of the Minister’s legal advisors, Ms Kirijah that the Minister could begin his
consideration after the previous decision was quashed. There is the apparent agreement of
the Minister’s office, recorded in the Departmental submission, that the Minister would
consider the submission following confirmation of the March 2019 being quashed. There is
also the erroneous statement in the Minister’s decision record which indicates that the
Minister paid too little attention to the material to realise his error.

98 Ms McGill’s email indicates that the Minister could have started his consideration of the
decision and the relevant material at about 9.16 am after it was placed on his desk. However,
the Minister adduced no direct evidence that he was at his desk at 9.16 am, or as to when he
commenced his consideration of the material. There is evidence that Ms Drake intended that
the Minister start considering the material prior to the decision being quashed, although there
is no evidence of her position in the Minister’s office. The circumstances made it logical for
- 22 -

the Minister to begin his consideration prior to 10.14 am, but there is no direct evidence that
he did so.

99 In our opinion, having regard to the matters set out in the immediately preceding paragraphs,
it is more probable than not that the Minister began his consideration of the material after
10.14 `am. In reaching this conclusion we are influenced by the fact that the Minister paid so
little attention to the material that he erroneously stated that he had given consideration to all
the information had been supplied by or on behalf of the appellant in connection with the
decision, when there was no such information. The error in the statement is consistent with
the Minister having spent no more than 11 minutes considering the material. If he had
commenced his consideration in sufficient time to allow an active intellectual process to be
directed to the relevant material, it is probable that he would have realised his error and
corrected it. The rule in Jones v Dunkel allows the inference that the Minister began his
consideration after 10.14 am to be drawn with greater confidence.

100 In this respect, we respectfully depart from the conclusion of the primary judge. In fairness to
the primary judge, it should be mentioned that the appellant was self-represented at first
instance, so his Honour lacked the advantage of assistance from counsel and, in addition, his
Honour was not taken to the reasoning in Burgess, which we have found helpful.

101 As we have said, the Minister accepted that if the Court were to find that his consideration
commenced from 10.14 am on 14 August 2017, he could not have engaged in the active
intellectual process in respect of the material that was necessary to discharge his statutory
function. Accordingly, the appellant has established error in the judgment of the primary
judge and jurisdictional error in the decision of the Minister. That conclusion makes it is
unnecessary to deal with the appellant’s alterna tive contention upon the first ground—that
even if the Minister commenced his consideration of the material at about 9.16 am on
14 August 2017, that did not allow him sufficient time to engage in the necessary active
intellectual process.

The second ground of appeal


102 The appellant’s second ground of appeal alleges that the primary judge failed to accord
procedural fairness to the appellant as a self-represented litigant. The ground asserts that the
appellant should have been told that he could: seek further discovery from the Minister
concerning how or when the decision was made; ask the Court to draw inferences from the
- 23 -

Minister’s failure to put on evidence about what the Minister did to consider the decision; and
ask the Court to issue subpoenas to the Minister and/or others to give evidence.

103 The obligations of a court towards a self-represented litigant were considered in Hamod v
New South Wales [2011] NSWCA 375:

[309] Courts have an overriding duty to ensure that a trial is fair : Dietrich v R 177
CLR 292; [1992] HCA 57 . This entails ensuring that the trial is conducted
fairly and in accordance with law: MacPherson v R 147 CLR 512; [1981]
HCA 46 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the
individual judicial officer hearing a case. In the context of an unrepresented
litigant, the duty requires that a person does not suffer a disadvantage from
exercising the recognised right of a litigant to be self-represented. . In
MacPherson , Mason J, at [31] 534, noted that:
“A trial in which a judge allows an accused to remain in ignorance of
a fundamental procedure which, if invoked, may prove to be
advantageous to him, can hardly be labelled as ‘fair’.”
[310] However, the court’s duty is not solely to the unrepresented lit igant. The
obligation is to ensure a fair trial for all parties. For this reason, the duty is
usually stated in terms that require that the impartial function of the judge is
preserved, whilst also requiring the judge to intervene where necessary to
ensure the trial is fair and just.
[311] Insofar as the duty relates specifically to an unrepresented party, it has been
said that a trial judge has an obligation to take appropriate steps to ensure that
the unrepresented litigant has sufficient information about the practice and
procedure of the court, so far as is reasonably practicable for the purpose of
ensuring a fair trial. The application of that principle will vary depending
upon the circumstances of the case.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in
active terms, it does not extend to advising the accused as to how his or her
rights should be exercised . Rather, the judge has to put the unrepresented
litigant in the position of being able to make an effective choice, a duty
which applies notwithstanding the adversarial character of a criminal trial.
The duty is the same in a civil proceeding, with such modifications as are
called for to take account of civil procedures. However, it is not the function
of the court to give judicial advice to, or conduct the case on behalf of, the
unrepresented litigant .
[313] The touchstone at all times remains that of fairness…
...
[315] There may be a fine tension in striking the balance between providing
assistance to an unrepresented litigant and ensuring a fair trial for all parties.
However, it is the task of the judge to strike that balance. In Minogue v
Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at
[29] the Full Federal Court dealt with the tension between the duty of the trial
judge to ensure a fair trial and the requirement of impartiality:
“[29] A trial judge often faces something of a dilemma. While he or
she may be bound to provide some advice and assistance to an
- 24 -

unrepresented litigant, the authorities make it clear that the Judge


should not intervene to such an extent that he or she cannot maintain
a position of neutrality in the litigation. However, the boundaries of
legitimate intervention are flexible and will be influenced by the
need for intervention to ensure a fair and just trial.”
[316] The position can be stated no more clearly than reiterating that the judge
must remain at all times the impartial adjudicator of the matter, measured
against the touchstone of fairness.
(Some citations omitted.)

104 In SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [37],
these passages from Hamod were cited with approval. In that case, a self-represented litigant
claimed that his migration agent had engaged in fraudulent conduct. The trial judge held that
the appellant’s account could not be considered because it was given from the bar table.
Each member of the Full Court held that fairness required that the trial judge inform the self-
represented litigant that if he wanted the court to rely on his statements, it was necessary for
the appellant to go into the witness box and make those statements formally. Justice
Robertson considered at [37], [39] that this was part of the trial judge’s obligation to inform
the litigant of the relevant procedures of the Court. Chief Justice Allsop and Mortimer J
agreed, but went further. The Chief Justice held at [53] that the litigant should have been told
of the fundamentally important issues required to make out a case of fraud, and of the
possibility of obtaining the presence of the migration agent to give evide nce. Justice
Mortimer stated at [58]–[59] that the appellant needed sufficient information about the
evidence required to make out the allegations of fraud he proposed, but was not informed,
even in outline, about what kinds of issues he needed to address. Accordingly, their Honours
considered that procedural fairness may require a trial judge to go beyond providing
information merely about matters of procedure.

105 In SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15, the Full
Court said at [36]–[38]:

…His Honour was required to give the applicant a reasonable opportunity to present
evidence and to make submissions in support of his applications…In this case, the
fact that the applicant was unrepresented exacerbates the procedural unfairness that
he encountered. The fact that a litigant is not represented may require a court to take
steps to explain its processes and procedures to the litigant to ensure procedural
fairness…
In the hearing on 15 September 2015, the primary judge made no effort to explain to
the unrepresented applicant how he might properly make an application for an
injunction under the Federal Circuit Court’s rules. Nor did the primary judge explain
the other procedures that the applicant might have chosen to utilise. His Honour
- 25 -

might, for example, have drawn the applicant’s attention to the provision for notices
to produce. Bearing in mind that the applicant was unrepresented and that his own
uncontested affidavit showed that the subject matter of his claim for injunctive relief
was important to him, we consider that the judge’s failure to explain the Court’s
processes and procedures was unfair to the applicant and involved an unreasonable
exercise of power.

106 These cases demonstrate that a judge’s obligation to ensure that a trial is fair requires the
judge to give a self-represented litigant a reasonable opportunity to present evidence and
make submissions in support of his or her case. That obligation may require that a self-
represented litigant be informed of fundamental procedures and processes of the Court (at
least to the extent that the litigant has not already received that information from some other
source). In some cases, the obligation may extend to informing a self- represented litigant, at
least in broad terms, of what must be proven. However, a judge is not required to give legal
or tactical advice to a self-represented litigant that would compromise the judge’s impartiality
and be unfair to the opposing party. The obligation of the judge is not to place a self-
represented litigant in the same position as if he or she were legally represented, but to
provide sufficient information, so far as is reasonably practicable, in order to allow a trial to
be conducted fairly and in accordance with the law. The nature and content of the judge’s
obligation is informed by the particular circumstances of the case and the necessity to provide
a fair hearing for each party while maintaining a position of neutrality.

107 The assessment of an allegation that a trial judge failed to provide adequate information to a
self-represented litigant will depend heavily upon the legal and factual context in which it is
asserted that the information should have been provided. A party alleging jurisdictional error
has the onus of adducing sufficient evidence to prove that allegation: see Minister for
Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]; Plaintiff M64/2015 v
Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24]. A difficulty
for the appellant is that he has not sought to demonstrate the circumstances that required that
he be provided with the information he claims should have been provided. He has not, for
example, produced the transcript of the hearing to demonstrate that the obligation of fairness
in the particular situation confronting the primary judge required provision of that
information.

108 The appellant had issued a notice to produce to the Minister, resulting in the production of a
number of documents. It seems likely that he had the benefit of some legal assistance and
advice in doing so. There is no indication that the Minister has other documents directly
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relevant the issues that were not produced. Therefore, it is not apparent why the appellant
asserts that the primary judge should have informed him that he could seek further discovery.

109 In the absence of a transcript, the appellant has not demonstrated that the circumstances
required the primary judge to advise him that he could subpoena the Minister or
Departmental officers to give evidence. There is some support from the judgment of Allsop
CJ in SZUR for a proposition that in some circumstances such advice should be provided.
However, the absence of evidence of the context in which it is said the information should
have been provided, it cannot be determined which side of the boundary between procedural
advice and tactical advice the information would have fallen on.

110 The provision of information about the rule in Jones v Dunkel would have involved advice
about a legal issue, namely the evidentiary significance of the Minister’s failure to give
evidence or call a witness. It has not been demonstrated that the requirements of procedural
fairness required provision of such advice in the circumstances of the case.

111 There is, in addition, a fundamental difficulty posed by the absence of a transcript of the
hearing before the primary judge. There is an absence of evidence demonstrating that his
Honour did not give the appellant information of the type it is asserted was not given. The
appellant’s second ground of appeal cannot succeed.

Conclusion
112 The appeal should be allowed on the basis of the first ground of the notice of appeal. The
Minister’s decision to cancel the appellant’s visa should be quashed.

I certify that the preceding one


hundred and twelve (112) numbered
paragraphs are a true copy of the
Reasons for Judgment herein of the
Honourable Justices Murphy and
Rangiah.

Associate:

Dated: 2 July 2019


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REASONS FOR JUDGMENT

O’CALLAGHAN J:

113 I am unable, with respect, to agree with the reasoning of the majority’s decision to allow the
appeal on the basis of the first ground of the notice of appeal. I would dismiss the appeal. In
the circumstances, it is sufficient that I only briefly explain the source of my disagreement.

114 In my view, the primary judge correctly found that the appellant had not proved that the
Minister failed to give actual intellectual attention to the merits o f the decision to cancel the
appellant’s visa, for the reasons the primary judge gave, and which are summarised in [32]
and [33] of the reasons of the majority.

115 It is, in my view, sufficiently clear from the matters set out at [21]-[24] of the reasons of the
majority that the Minister intended to make a new decision shortly after the making of the
consent order quashing the Minister’s March 2017 decision. Because the Minister had
consented to an order quashing that decision, he can be assumed to have believed that the
decision would indeed be quashed. In those circumstances, it seems to me, it is likely that the
Minister commenced his consideration of the relevant materials relevant to the new decision
while awaiting notification that the order had been made, and that he gave “full consideration
to all information before [him] in this case”, as he said he did in his signed statement of
reasons.

116 I am unpersuaded by the factor which the majority regards as decisive (at [99]), namely the
significance that they attribute to the words at the top of the first page of the Minister’s
decision that he had “considered all information before me provided by, or on behalf of [the
appellant]”. The majority’s proposition, it seems to me, amounts to saying that those words
should have been deleted, because they were inapplicable in the context of the Minister’s new
decision, and that the only reason the words were not deleted was that they must have gone
unnoticed by the Minister because he did not devote sufficient time to considering the
information before him. In my respectful view, the failure to delete the formulaic words from
the Minister’s reasons does not bear one way or the other upon the issue of how much time
the Minister spent considering all of the information.

117 In those circumstances, the appellant has not, in my view, proved that the Minister failed to
give active intellectual attention to the merits of the decision to cancel the appellant’s
Absorbed Person visa.
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118 On the view that I take, no occasion therefore arises to consider the rule in Jones v Dunkel.

119 I would accordingly dismiss the appeal, with costs.

I certify that the preceding seven (7)


numbered paragraphs are a true copy
of the Reasons for Judgment herein
of the Honourable Justice
O’Callaghan.

Associate:

Dated: 2 July 2019