Federal Court (Full Court). Was the appellant Minister, who elected to make a personal decision under s 501CA(4) of the Migration Act 1958 (Cth), required to personally consider the respondent's representations? Or could he merely rely on a Departmental summary of such representations? If he could not rely on a summary, did he consider those representations? Which party bore the onus, on appeal, on the question of whether the Minister considered those representations?
The respondent’s visa was mandatorily cancelled by a delegate of the appellant Minister under s 501(3A) of the Migration Act 1958 (Cth). Then, on 22 November 2019, the respondent made representations to the Minister seeking to persuade him that there was “another reason”, pursuant to s 501CA(4)(b)(ii) of the Act, why the cancellation should be revoked, as it was not in dispute that the respondent did not pass the character test and thus that s 501CA(4)(b)(i) was not met. On 11 December 2020, a senior advisor from the Minister’s officer indicated that a decision should be prepared for the Minister to personally consider it. On 22 March 2021, a Departmental brief to the Minister was cleared. On 14 April 2021, about 30 hours after the Minister had received the Departmental brief, the Minister personally refused to revoke the cancellation under s 501CA(4) of the Act.
The Departmental brief attached 4 documents: Decision Page, Index of Relevant Material, Statement of Reasons and Relevant material. The first page of the brief was headed ‘Recommendations’ and set out five numbered paragraphs with options to be circled, such as whether or not to revoke the visa cancellation. The Decision Page had options (a)-(c). The Minister circled option (c), which indicated non-revocation, and signed and dated the Decision Page at the bottom, where a big, yellow “sign here" sticker with an arrow was located.
The respondent then successfully applied to the Federal Court for judicial review of the Tribunal’s decision. Evidence was adduced of a photo of a ring binder resting on the lap of a person who was sitting beneath the steering wheel of a car. The binder was open at the Decision Page, with option (c) circled and with a signature and date.
The Minister then appealed to the Full Court, arguing as follows:
- (a) The primary judge erred in finding that the Minister had not read the respondent’s representations and thus did not perform the task required under s 501CA(4). The Minister also argued that, as the Full Court was in as good a position as the primary judge to determine matters of fact relevant to the Minister’s appeal, the respondent bore the onus on appeal of demonstrating that the Minister had not read for himself the respondent’s representations.
- (b) The primary judge erred in concluding that a lawful performance of that task required more than merely considering a summary prepared by his Department of the respondent’s submissions.
The respondent filed a notice of contention on the appeal, arguing that the evidence disclosed a practice of de factodelegation of the Minister’s powers to Departmental officers, thereby ousting merits review.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Was it the Minister, as the appellant, who bore the onus of persuading the appellate Court that the orders made by the primary judge were erroneous?
Question 2: Does the evidence adduced before the primary judge support an inference that the Minister did not read the respondent's representations?
Question 3: Where the Minister elected to personally make a decision under s 501CA(4), was he required to personally consider the respondent's representations, instead of relying on a Departmental summary of them?
The FCAFC answered those questions as follows: