Jones v Dunkel applicable to Minister personally?

The relevant sequences of events is as follows:

1. 1. A previous Minister personally cancelled the Applicant's visa under s 501(3) of the Migration Act 1958 (Cth) in 2019.
   2. The Applicant applied to the FCA for judicial review of that decision.
   3. From about 3.30 pm on 26 May 2020 to 28 May 2020, the Minister was in possession of materials relating to the Applicant's case in anticipation of the FCA quashing by consent orders the Minister's decision of 2019.
   4. The FCA quashed the Minister's orders by consent on 28 May 2020.
   5. The Minister cancelled the Applicant's visa again later on 28 May 2020.
   6. Presumable because the Applicant failed the character test and therefore failed to satisfy s 501C(4), the Applicant applied to the FCA for judicial review of the Minister's decision of 28 May 2020, instead of seeking revocation of the cancellation under s 501C.

The Applicant claimed before the FCA that the Minister had not engaged in an “active intellectual process” in assessing the merits of the case. Relevantly, the FCA said as follows:

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Was the Minister allowed to begin his consideration of the matter prior to the consent orders being finalised?

Answer: Yes.

Question 2: "The applicant added that, within the time left over in between his various commitments and the onerous burden of the Minister’s portfolio, it was inherently unlikely that the Minister would consider the matter until he was actually called upon to make a decision. The applicant drew attention to the fact that in that part of the Department’s submission relating to timing, the Minister was invited to review the material at his earliest convenience, but was not expressly told that he should commence consideration of the materials immediately". Was it "significant that no direction was given to the Minister by the Department regarding the timing of his decision and his consideration of the materials"?

Answer: No.

Question 3: Can it be reasonably inferred from the fact that the Minister initialed each and every page of the 35-page statement of reasons that he had read each of those pages?

Answer: Yes.

Question 4: Does the absence of the Minister’s initials on each and every page of the detailed Attachments to the statement of reasons of itself give rise to "an inference that the Minister did not properly engage with that material and/or with the summary of that material provided to him in the Department’s brief"?

Answer: No.

Question 5: If the Minister spent only approximately 20 minutes on 28 May 2021 reviewing the Department’s revised submission and draft statement of reasons, would this "ground an inference that these materials were being read by him for the first time"?

Answer: No.

Question 6: Bearing in mind that the FCA held the discretion to refuse to accept minutes of consent orders, was it "inherently unlikely" that the Minister would consider the matter until called on to make a decision, as this would be inefficient for a busy Minister?

Answer: No, based on the evidence.

Question 7: Was it implausible that "the Minister does not remember how long he spent considering the matter, or whether he read the draft statement of reasons before he made the decision"?

Answer: No.

Question 8: Does the fact that the Minister "does not now remember the specific details of the decision-making process in the applicant’s case" provide a basis for inferring that the Minister did not read the materials at all?

Answer: No.

Question 9: If it is accepted that the applicant’s case had unusual aspects, does it follow that "an adverse inference arises merely because the Minister was unable to recall the amount of time he spent reviewing the Department’s submission and the draft statement of reasons"?

Answer: No.

Question 10: Could three previous judgments of the FCA (namely Carrascalao, Burgess and Chetcuti), be admitted into evidence "for the purpose of demonstrating a purported tendency of the Minister not to give proper, genuine and realistic consideration to the merits of the case"?

Answer: No.

Question 11: According to the FCA: "The rule in Jones v Dunkel is an application of the more general principle in Blatch v Archer 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”. The rule permits the Court to draw with greater confidence an inference which is otherwise available on the evidence and which is unfavourable to the party that failed to call the witness, where that failure is unexplained". Can it be said that, "in many cases, the absence of a Minister from the witness box will be explicable, having regard to the complex and onerous functions of a Minister which constrains the time available for them to give evidence in individual cases"?

Answer: Yes.

Question 12: Does the fact that the Applicant has had the opportunity to administer interrogatories to the Minister and to cross-examine other 2 of the Minister's advisers militate against drawing a Jones v Dunkel inference against the Minister?

Answer: Yes.

Question 13: Can it be said that, "in circumstances where the Minister had the relevant materials for nearly two days, and in the absence of persuasive evidence which demonstrates that he had only very limited time within that period to consider those materials, [the inference that he has not read those materials] cannot be drawn?

Answer: Yes, arguably in obiter.

The FCA answered those questions as follows: