When forming state of satisfaction whether "another reason" existed to revoke cancellation of respondent's visa, is the Minister required to personally read some or all of respondent's representations?

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 (10 April 2024)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

The respondent is a citizen of the United States of America whose visa was mandatorily cancelled ("the cancellation decision") in 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) ("the Act") because the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Minister") was satisfied that the respondent did not pass the "character test" as defined in s 501(6) of the Act.

Consequentially, the respondent made representations to the Minister seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Act. For that purpose, the Minister was supplied by the Department of Home Affairs ("the Department") with a 13‑page "Submission" which summarised those representations; a 15‑page draft statement of reasons in support of a decision not to revoke the cancellation decision; and copies of all of the actual representations made by the respondent, and on his behalf, as well as other relevant material.

The representations and other material comprised 213 pages. They included the respondent's handwritten request for revocation of the cancellation decision, letters and emails of support from his Australian partner, his children under his care and other individuals, letters and emails relating to the respondent's time in prison, certificates confirming the completion of certain courses, medical information and other correspondence. The material also included a record of the decision of the Prisoners Review Board of Western Australia providing for the respondent's conditional release on parole on the basis that the Board found that he "would not present an unacceptable risk to the safety of the community".

In making his decision, it is now accepted that the Minister only read the Submission and the draft reasons. He did not read or otherwise consider any of the actual representations made by the respondent, or on his behalf, or the other material described above.

The decisions below

The primary judge

The primary judge emphasised that the Minister had made an election personally to exercise the power conferred by s 501CA(4). This, it was said by the primary judge, had consequences. It obliged the Minister to give the "necessary personal proper, genuine and realistic consideration to the merits of the representations". That could only be achieved by the Minister "personally considering and understanding the representations made" and that required him to read "the attachments" to the Submission.[18] The summary of those materials in the Submission was no adequate substitute for the Minister's "deliberative task of forming a personal state of satisfaction"

The Full Court

The Full Court agreed with the primary judge. Their Honours emphasised that the choice to exercise the power personally obliged the Minister to "personally and directly consider the representations made in support of revocation". That was especially so, it was said, because the representations to which s 501CA(4) are directed comprise "an exercise in persuasion, when the odds are already stacked against the individual affected".

Issue:-

Is the Minister required to personally read some or all of respondent's representations to form state of satisfaction or can he rely upon summary of representations contained in departmental submission?

Consideration:-

Exercising ministerial power personally

Not all statutory powers conferred upon a Minister of the Crown need be exercised personally. Depending upon Parliament's intention, some powers may be able to be delegated to an officer of a department to be exercised by that person and in his or her name.[34] Other powers may be capable of being exercised by a departmental officer, but on behalf of a Minister.[35] Whether a power is delegable or exercisable by an agent is ultimately a question of statutory construction.

When, as here, a Minister exercises a power personally, the law recognises that he or she does not work alone but makes decisions with the assistance of his or her department. The law treats the collective knowledge and experience of the department as the Minister's own knowledge and experience. As Lord Diplock said in Bushell v Environment Secretary:

"Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise."

The foregoing permits a Minister to rely on his or her department to sift and organise material received, to prepare summaries of information, and to prioritise correspondence. Generally, there is no obligation on a Minister to read each and every relevant document in order to exercise a power personally. These principles were described by Brennan J in Peko-Wallsend as follows:

"The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.

Section 501CA4)

Section 501CA(4), by necessary implication, obliges the decision-maker to consider the representations received in reaching the state of satisfaction. That obligation conditions the formation of the relevant state of satisfaction. The question is what that obligation requires. Does the obligation oblige the Minister personally to read all of the submissions and material received pursuant to s 501CA(3) and (4), or at least some of them? Certainly, there is no express requirement to do so. As mentioned above, s 501CA(4) is silent as to how, or by what method, the Minister is to form the state of satisfaction required by s 501CA(4), save that by reason of s 496 he or she may delegate that task to an officer of the Department.

Nor does s 501CA(4) impliedly mandate personal interrogation of the materials received. Such a conclusion conflicts with this Court's observation against the formulation of any "absolute rules" about how the power conferred by s 501CA must be exercised.

It is a matter for the Minister to determine how to be satisfied as to whether "another reason" exists to justify revocation of a cancellation decision. Naturally, that can include personally reading and understanding all of the submissions. But that is not the only way the Minister's function may be discharged. There is no barrier to the Minister reading and understanding the representations made by an applicant by other methods including the method of relying only upon a departmental summary of them, so long as that summary is accurate and contains a full account of the essential content.
...

It is not a condition of the valid exercise of the power conferred by s 501CA(4) for the Minister, when personally exercising that power, personally to read and examine the submissions, representations and other material received in every case. The Minister may rely instead upon departmental briefs and submissions which accurately summarise and order that material.

...

So long as the representations are appropriate to be summarised and that process of distillation is accurate and provides a full account of the essential content, it will be lawful for the Minister to read the summary and nothing more.

Conclusion:-

Appeal allowed.