Federal Court. Was it legally unreasonable for the Assistant Minister to adopt the assessment of a psychologist "on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk"?
The Assistant Minister decided under s 501BA(2) of the Migration Act 1958 (Cth) to set aside a Tribunal decision, and cancel the Applicant's visa.
The Federal Court (FCA) said as follows:
34 The applicant submitted that the Assistant Minister did not spend sufficient time with the materials to have given them proper, genuine and realistic consideration. That was because the materials provided to the Assistant Minister included 42 attachments and over 1,000 pages, whereas the Assistant Minister recorded that they had spent only 55 minutes reading the Submission and attachments, which would not have been sufficient time to undertake active intellectual engagement with the materials.
35 The applicant focused on what the Assistant Minister said they had read. The Decision Page attached to the Submission, which the Assistant Minister signed, stated that the “following is my decision under s 501BA … having read and considered all of the material” and that the “[t]otal time taken in considering submission [sic] and attachments” was 55 minutes. Furthermore, the Statement of Reasons, which the Assistant Minister had also signed, stated that the Assistant Minister “had regard to the documents provided by the Department” and that the “[t]otal time taken in considering submission [sic] and attachments” was 55 minutes.
36 The applicant further submitted that it was open to the Assistant Minister to file evidence about how they spent the 55 minutes and, in the absence of such evidence, and applying the principles in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, the Court should infer that the Assistant Minister did not read the materials they claimed to have read.
Some of the questions to the FCA were as follows:
Question 1: Is the effect of the High Court's decision in McQueen that "the law treats the collective knowledge and experience of the department as the Minister’s own knowledge and experience"?
Question 2: Was the decision of the Full Court of the Federal Court in Carrascalao impliedly overruled by the High Court in McQueen?
Question 3: Can it be said that, even though the "Assistant Minister said they had read and considered all of the material provided by the Department, and signed the Decision Page to indicate that it had taken 55 minutes to consider the Submission and attachments", those statements "should not be read as connoting that the Assistant Minister read every word on every page, but that they had considered the material that they considered necessary in order to exercise their statutory power"?
Question 4: The FCA said: "The applicant submitted that the Assistant Minister failed to consider the most up-to-date material available to him because the Assistant Minister, through the Department, was in possession of a substantial up-to-date submission in the form of a letter sent on behalf of the applicant dated 24 June 2024, which was not referred to in the materials provided to the Assistant Minister". Can it be said that such a failure did not amount to jurisdictional error, as the material not given by the Department to the Assistant Minister was essential to the exercise of the power, or in other words, not a mandatory consideration?
Question 5: Was it logical for the Assistant Minister to treat family violence as extending to an immediate past domestic partner, as "the especial vulnerability of a domestic partner does not necessarily and immediately cease the moment they are not living under the same roof and the end of a relationship is not always clear or clean cut"?
Question 6: If the answer to Question 5 is 'no', is it nevertheless the case that "the impugned finding was an integer of fact finding, which was of intermediate effect leading to the ultimate conclusion", in which case "to establish jurisdictional error the applicant was required to show that the relevant illogical reasoning was material to the ultimate conclusion or end result"?
Question 7: Was it open to the Assistant Minister to reach a different view to that of the sentencing judge or the Tribunal in relation to the Applicant's remorse, without specifically addressing why that different view was reached?
Question 8: Can it be said that, whilst it may be an error for a Minister not to consider under s 501BA(2) the Tribunal’s reasoning at all, "a decision made under s 510BA(2) does not have to respond to, or rebut findings set out in, the underlying tribunal decision"?
Question 9: Was it legally unreasonable for the Assistant Minister to adopt the assessment of a psychologist "on the risk of the applicant reoffending, undertaken nine months previously, in the absence of evidence that the applicant had addressed certain matters to reduce that risk, to make a current assessment on risk"?
The FCA answered those questions as follows: