s 501CA(4): briefs given to Minister

The Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). The Applicant then made detailed written submissions seeking the revocation, pursuant to s 501CA(3). The Minister subsequently made a personal decision under s 501CA(4) not to revoke the visa cancellation, after which the Applicant applied to the Federal Court (FCA) for judicial review of the Minister's decision.

The FCA said as follows:

33    Second, in order for the Minister to undertake the required task personally, the Minister must be briefed with an accurate and sufficient summary of the matters raised by the representations or must undertake the consideration of the representations personally. Counsel for the Minister accepted that the reasons in this matter were prepared before any evaluative consideration was undertaken by the Minister and therefore formed the function of briefing the Minister in the sense that they were provided to the Minister before the decision was made. The Minister then made the decision by reference to the matters captured in the reasons document.

34    The acceptance by counsel of that position was appropriate in the circumstances. The form of the decision as published in the present case identified three possible outcomes, one of which was circled by the Minister. Therefore, in may be inferred that the material was presented to the Minister with a selection to be made between three options with an indication that the Minister should circle the option selected by the Minister. The third option was for a 'Non-revocation outcome'. It referred to the reasons for decision being 'set out in the attached Statement of Reasons'.

Some of the questions to the FCA were as follows:

Question 1: Does s 501(3A) of the Migration Act 1958 (Cth) involve a decision? Or is it merely a statutory requirement to cancel a visa that is triggered if a state of satisfaction is formed?

Question 2: Can it be said that, by reason of s 501CA(7), a "decision not to exercise the power conferred by s 501CA(4) is not amenable to statutory administrative review"?

Question 3: Can it be said that, "where s 501(3A) applies it is only at the stage of deciding whether to revoke the visa cancellation that consideration may be given to particular circumstances that bear upon whether the person should be deported"?

Question 4: Can it be said that "the significance of a particular matter for the outcome of the decision to be made by the Minister is not determined by the manner in which it is expressed in the representations" made pursuant to s 501CA(3)?

Question 5: Can it be said that, "in order for the Minister to undertake the required task [under s 501CA(4)] personally, the Minister must be briefed with an accurate and sufficient summary of the matters raised by the representations or must undertake the consideration of the representations personally"?

Question 6: Should it be "inferred that the reasons document provided to the Minister with those three options became the expression of the Minister's reasons"?

Question 7: Can it be "inferred from the form of the reasons and the absence of any other evidence that [the reasons were] the means by which the Minister was briefed", with the result that "the matters that are known to the Minister are only those matters expressed in the reasons"?

Question 8: If the answer to Question 7 is "yes", does the contrast between the brevity of the Minister's reasons that purported to recite the submissions made by the Applicant and the comprehensiveness of those submissions themselves lead to an inference that the Minister did not give proper, genuine and realistic consideration to those submissions?

The FCA answered those questions as follows: