Federal Court (Full Court): Q1 to the FCAFC: did Minister personally spend about an hour or only 11 minutes considering whether to cancel a visa? Q2: should the Court could draw a Jones v Dunkel inference that the Minister spent only 11 minutes? Q3: if the Court finds that Minister spent only 11 minutes, was that sufficient for the Minister to give proper, genuine and realistic consideration to the materials provided by the Department?
Summary and discussion
The Minister purported to cancel the Appellant's visa (first cancellation) under s 501(2) of the Migration Act 1958. The Appellant applied for judicial review of the Minister's decision to the the Federal Court (FCA) and the Minister consented to the first cancellation being quashed, which meant he would need to make the decision again.
Before the FCA ordered the first cancellation to be quashed, the Department placed on the Minister's desk a "written submission attaching a draft decision, a draft statement of reasons and a bundle of documents relevant to the decision". That consisted of about 130 pages.
That material was placed on the Minister's desk at about 9.16AM on 14 August 2017. At 10.14am on the same day, a Departmental legal officer sent an email to a Departmental liaison officer in the Minister's office informing her that the FCA had quashed the first cancellation, as expected. 11 minutes later, that is at 10.25am, the Minister made a fresh decision to cancel the Appellant's visa (second cancellation).
The Appellant applied to the FCA for judicial review of the second cancellation. A single judge dismissed that application and the Appellant eventually appealed to the Full Court of the FCA (FCAFC).
One of the grounds of appeal was that the Minister had not given proper, genuine and realistic consideration to the materials provided by the Department. The basis for that ground was the assertion that the Minister had spent only 11 minutes considering the matter. The Minister (through his lawyers) argued that he had spent from about 9.16am until 10.25am considering the matter, that is more than one hour.
Three questions were put to the FCAFC:
Question 1: did the Minister start considering the materials at about 9.16am or only at 10.14am?
Question 2: in answering Question 1, should the Court draw a Jones v Dunkel inference that the Minister started considering the materials only at 10.14am? In other words, should an inference be drawn against the Minister from his failure to call a member of his staff as a witness to give evidence as to when the Minister started his consideration?
Question 3: if the FCAFC finds that the Minister only spent 11 minutes considering the materials, was that sufficient time for the Minister to give proper, genuine and realistic consideration to those materials?
The FCAFC answered those questions by a 2:1 majority as follows:
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