Minister personally interrogated yet again?

The Minister personally made a decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the applicant's visa.

The Federal Court (FCA) said as follows:

2. An amendment to the application to add a fourth ground of review has been foreshadowed by the applicant. It is proposed to be expressed in the following terms (which refer to the Minister as M): 

4. The decision was only purportedly made by the M. 

Particulars 

(a) The record of the M's purported decision, which prior to signing and dating was page 1 of the Department's document titled 'Submission - For decision' cleared by an Assistant Secretary on 22 March 2021 (the Departmental Submission), is a 'circle the option' document. 

(b) The hardcopy brief to the M, which was prepared for the M by his Department (the Brief), has 'sign here' stickers, including on the first page of the Departmental Submission, which became the record of the M's purported decision. 

(c) The photographic document, produced by the M by inclusion in the Court Book, will, absent any contrary evidence sought to be led by the M, support the inference that the M did follow the Department's instruction to 'sign here' whilst he was in a car, sitting behind the steering wheel. 

(d) Consistently with the circumstances of the purported making of the decision being that the M was sitting behind the steering wheel of a car, the second page of the Departmental Submission has no comments by the M, in the box titled 'Minister's Comments'.

(e) The purported decision is made on the basis of the Brief including one set, and one set only, of lengthy reasons pre-drafted by the Department. 

(f) Although page one of the Departmental Submission, at point 2, indicated that the M could refer the case to a delegate, the M chose not to refer it. 

(g) The pre-drafted set of reasons would have been wasted, given they are predicated on the M making the decision personally. 

(h) The Departmental Submission, at paragraph 6, makes it clear - if the M did not already know - that the choice to make the decision personally would deprive the Applicant of merits review in the Administrative Appeals Tribunal. 

(i) Although page one of the Departmental Submission, at point 4, indicated that the M could make any amendments to the lengthy pre-drafted reasons, not a single amendment was made by the M. 

(j) Although page one of the Departmental Submission, at points 4 and 5, indicated that the M could seek to discuss with the Department, no such discussion occurred. 

(k) The pre-drafted reasons, included the Brief, deal principally with matters directed to a subjective jurisdictional fact. 

(l) The subjective jurisdictional fact is supposedly reached by the M after he considered (but note: without making any amendments to what was pre-drafted, or making any marks on the materials, identified to him has relevant by his own Department, whilst he was supposedly reading them), by engaging in an active intellectual process with the care and thoroughness appropriate to a decision of such gravity. 

(m) The volume of personal decisions, purportedly made by the M under Part 9 of the Act whilst he has had Ministerial responsibilities under the Act, each of which decision, it should be inferred, would require the M, if he truly made the decision, to read and engage with, by an active intellectual process, substantial 'relevant materials' and lengthy pre-drafted reasons, just like in this case. 

(n) Supposedly, the M would spent all this time of all of these personal decisions under Part 9 of the Act, whilst also discharging all of his other Ministerial responsibilities, as well as his responsibilities to his constituency. 

(o) It is to be inferred that a practice has been developed by the M (and/or his Department) which has resulted in de facto delegation of the decision-making power in s 501CA(4) of the Act, in circumstances where, by way of a 'circle here', the M first makes a decision (for which there are no reasons), that the case will not be referred to a delegate. 

(p) Such de facto delegation is unlawful.

3. In the above circumstances, an application is brought by [the applicant] to administer the following interrogatories to be directed to the Minister: 

(a) During your time as Minister, including your time as Acting Minister, how many decisions under Part 9 of the Migration Act 1958 (Cth) did you personally make? 

(b) In respect of the decisions referred to at (a) above, how many of the briefs to you prepared by your Department for the purpose of each of those personal decisions by you did not have 'Sign here' stickers (or similar stickers), directing you to the pages of documents included in that brief that may have required your signature? 

(c) On what date, and at what time and place, did you receive the brief prepared by your Department for the purpose of a possible personal decision by you pursuant to s 501CA(4) in respect of the applicant? 

(d) At what time and place, on 14 April 2021, did you make the decision pursuant to s 501CA(4) in respect of the applicant? 

(original emphasis)

11. As presently articulated, the case for [the applicant] relies upon a combination of the form and content of the documents described above, a claim that the briefing to the Minister as to the facts takes the form of a draft set of reasons as to why the visa cancellation should not be revoked, the lack of any record to indicate the extent of deliberation by the Minister (particularly the absence of any alteration to the reasons or any note indicating actual consideration of the draft reasons), the fact that the decision record provided is in the form of a photograph that appears to be taken of the page in a file on the lap of a person in the driver's seat of a motor vehicle and that the number of similar decisions made by the Minister personally and the extent of other responsibilities of the Minister limits the time available to the Minister to consider the relevant representations. Those matters are also put in the context of the nature of the decision to be made by the Minister. In that regard, it is now well established that the exercise of the power to revoke the cancellation of a visa which arises when an affected party makes representations in support of revocation requires a real and genuine consideration of each substantial and clearly expressed claim: see the summary in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27] (Burley, Colvin and Jackson JJ). Also, the character and quality of the deliberation required must be approached by considering the human consequences involved and mechanical formulaic expression and pre-digested shorthand may hide a lack of the necessary reflection on the consequences that must attend the exercise of the power: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Allsop CJ, Markovic and Steward JJ agreeing). 

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

Question 1: Can it be said the proposed additional ground of review amounted to "an allegation of fraud on the part of the Minister and was to the effect that the reasons of the Minister were a sham and were not in fact the reasons of the Minister at all"?

Question 2: As to item (a) of the proposed interrogatory, can it be said that "it would be unduly oppressive for the Minister to identify how many such decisions have been made"?

Question 3: As to item (b) of the proposed interrogatory, is "the only inference that might be drawn from the use of 'sign here' stickers is that there is, as was submitted, some form of 'industrial scale personal decision-making by the Minister'"?

Question 4: Should items (c) and (d) of the interrogatory be administered?

The FCA answered those questions as follows: