No rubber stamping, yet no genuine consideration?

The Minister proposed to personally make a decision under s 501CA(4) of the Migration Act 1958 (Cth) against the Applicant, after receiving a departmental Submission containing relevant materials. Some of the Applicant's grounds of judicial review were to the following effect, according to the Federal Court (FCA):

(1)    Despite purporting to do so, the documents signed by the Minister did not record a decision that was made by the Minister personally and were a form of de facto delegation to the departmental officer or officers who prepared the Submission and drafted the Statement of Reasons.

(2)    The Minister failed to give proper, genuine and realistic consideration to the merits of the representations advanced by Mr McQueen by reason of:

(a)    the circumstances in which the decision was made; ...

On the question of whether the Minister simply rubber stamped or approved what had been presented to him by his department, the FCA said as follows:

42    ... On the first page of the Submission, the Minister was presented with the five enumerated matters under the heading 'Recommendations'. The second matter invited him to indicate whether he wished to consider the case personally and the Minister responded by circling the option 'consider personally'. The Submission provided by the Minister's department also made plain the position. It stated (para 6):

It is open to you to personally consider this matter or refer the matter to the departmental delegate for a decision. The Act is clear that should you personally exercise the power to not revoke, such a decision is not reviewable by the Administrative Appeals Tribunal. However, it would be open to Mr MCQUEEN to seek judicial review of your decision in the Federal Court of Australia.

(emphasis added)

43    The Submission continued (para 8):

Please record your decision on, and sign, the Decision Page at Attachment 1. If you do not revoke the original decision, a draft Statement of Reasons is at Attachment 3 for your consideration. If you agree with the reasoning set out in the draft Statement of Reasons, sign the statement with any amendments you consider necessary.

44    The Decision Page has already been quoted. It begins with the statement 'The following is my decision under s 501CA(4) … '. The option selected by the Minister (option (c)) is expressed in the first person and ends by stating: 'My reasons for this decision are set out in the attached Statement of Reasons'.

Some of the questions to the FCA were as follows:

Question 1: In forming the state of satisfaction under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as to whether there is "another reason" why the mandatory cancellation of a visa should be revoked, is the Minister required "to give real and genuine consideration to each substantial or significant and clearly expressed claim made in the representations"?

Question 2: In forming the state of satisfaction under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as to whether there is "another reason" why the mandatory cancellation of a visa should be revoked, does the Minister have a residual discretion not to revoke the cancellation even if satisfied that there is "another reason" to revoke?

Question 3: Is there a significant conceptual distinction between grounds 1 and 2(a) in that, ground 1 "is not made out by demonstrating insufficiency or incompleteness in the consideration of the representations and supporting materials undertaken by the Minister"?

Question 4: Did the brief provided to the Minister, "in terms, invite him to simply rubber stamp or approve what had been prepared by his Department"?

Question 5: If the Minister personally makes a decision under s 501CA(4), is he required "to consider and understand the representations received" for himself, even if he is given an accurate summary of such representations?

Question 6: If the Minister personally makes a decision, can it be said that he is not required to read all relevant papers and can rely instead on a summary of the relevant facts furnished by the officers of his department, so long as the summary "'bring[s] to his attention' all material facts 'which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial'"?

Question 7: If the Minister personally makes a decision, can it be said that "where the representations that he was required to consider depended upon factual matters, the task of considering the representations required him to form his own view of the facts"?

Question 8: Can it be said that, "where attention to the facts is a necessary element in the performance of a Minister's [personal] administrative decision-making role, the necessary facts must be sufficiently disclosed" to him by the relevant departmental submissions?

Question 9: Can it be said that "the use of a departmental summary may not be appropriate when what is sought to be summarised is a substantive argument (as opposed to an assertion of fact)"?

Question 10: Can it be said that "the Minister's entitlement to have regard to a summary or submission prepared by his Department must take into account any statement or indication in such a document which advises the Minister of the need for him or her personally to consider relevant information in a document which is summarised"?

Question 11: May the Minister "adopt as the Minister's own reasons a draft prepared by an officer of his department provided the draft reflects the Minister's own reasons"?

Question 12: Can it be said that, "in undertaking any fact-finding the Minister was not confined to the facts in the representations and may use his own personal or specialised knowledge"?

Question 13: In determining ground 1, should the FCA attach "significance to the fact that there were no draft reasons to support a decision to revoke the visa cancellation", in circumstances where reasons were only required if a decision was made not to revoke?

Question 14: Can the "prospect that the draft of the Statement of Reasons prepared without any prior indication from the Minister as to his reasoning and before the Minister had considered the materials might manage to accord with the Minister's own view" be explained by the fact that the Minister had issued Direction 90 (a detailed document), which made it possible for departmental officers to "prepare draft reasons of a kind that would sufficiently reflect the Minister's reasons to enable them to be adopted by the Minister"?

Question 15: If the Minister adopted reasons that were not his own reasons, would that "mean only that the Minister had failed to provide the reasons required by s 501G(1)", without necessarily following that the Minister did not undertake the deliberative task required by s 501CA(4)?

Question 16: Must the Minister give "reasons as to why the expectations of the Australian community should count against revocation"?

Question 17: The Applicant argued in the context of ground 4(c) that "the aspect of the hardship to the children addressed in the reasons at paras 49-50 ... was brought to account when considering impediments if [the Applicant] was removed from Australia but was not considered in the part of the reasons that concerned the interests of the children (approached by the Minister as a primary consideration)". Was "the failure to consider this 'integer' as part of the reasons as to the interests of the children gives the whole decision the requisite character of being legally unreasonable or illogical"?

Question 18: Can it be said that "fact that the Minister referred to the 'integer' at one point in the reasons but not another supports the drawing of such an inference in the present case"?

Question 19: Must decisions under s 501CA(4) be made within a reasonable period of time?

Question 20: May the ongoing validity of a decision under s 501(3A) depend upon due and prompt performance of the power under s 501CA(4)?

The FCA answered those questions as follows: