An Afghan man has challenged Karen Andrews’ decision to cancel his visa in 2021, arguing that Scott Morrison’s multiple ministerial appointments displaced her as home affairs minister and rendered the decision void.
The federal court case, brought by a former employee of the US embassy in Afghanistan who is known as CEU22, indirectly challenges the validity of all visa cancellation decisions made personally by the minister from the date of Morrison’s appointment on 6 May 2021 to the Coalition’s election loss in May 2022.
It could also raise questions about the legality of personal decisions made by the incumbent ministers of all five ministries that Morrison was sworn in to administer: health; finance; Treasury; industry, science, energy and resources; and home affairs.
In August the Albanese government released advice from the solicitor general concluding that Morrison’s additional appointments were legal but “fundamentally undermined” responsible government.
In February the Albanese government agreed to revoke Morrison’s decision to cancel the Pep-11 permit to explore for gas off the New South Wales coast, helping to settle a federal court case brought by Asset Energy that challenged the validity of the appointments.
Andrews cancelled CEU22’s visa on 9 December 2021 on the basis he failed the Migration Act’s “character test” and the cancellation “was in the national interest”, according to an interlocutory decision in November.
CEU22 initially challenged Andrews’s decision by arguing she misunderstood Australia’s obligation not to take people back to danger, citing his fear of persecution by the Taliban, and that she failed to give “genuine or realistic consideration” to the merits of his case.
But on 23 January in an amended application, provided to Guardian Australia by the court, CEU22 added a new ground: that Andrews “did not have the power to make the decision” because on 6 May 2021 the governor general appointed Morrison as minister for home affairs.
CEU22 argued that it is “implied” in the constitution that “the office of minister of the crown … should be occupied by only one incumbent at any point in time”.
“The appointment of Mr Morrison as the minister for home affairs had the automatic and immediate effect of removing Ms Andrews from the office.”
The solicitor general’s advice casts doubt on that argument, by finding the governor general can “appoint an existing minister of state, including the prime minister, to administer an additional department of state … without it being necessary to direct that person to hold a different or additional ‘office’”.
But CEU22 argues that if Morrison and Andrews were “co-ministers for home affairs” then the decision was infected by “legal unreasonableness and/or with a new species of jurisdictional error”.
If Andrews or the home affairs department’s secretary, Michael Pezzullo, had been aware of Morrison’s appointment, they could have referred the decision to him, rendering it “legally unreasonable” to make the decision without being aware of that option.
The minister should be aware of “important structural aspects of the decision-making framework” like a co-minister, the plaintiff’s lawyers argued.
Morrison has apologised to Andrews for having himself sworn in to administer the home affairs portfolio after she called on him to resign over the multiple ministries saga.
In November Morrison was censured in parliament over the appointments. At the time, the former prime minister warned it was “false” to equate his decision to administer colleagues’ departments with appointments as minister.
A spokesperson for Morrison told Guardian Australia: “Mr Morrison was not sworn to hold the office of minister for home affairs, nor did Mr Morrison exercise any authorities to administer the department of home affairs.”
It is unknown how many visa decisions could be affected if CEU22’s argument were accepted.
Home affairs department statistics reveal there were 445 visa cancellations or refusals on character grounds from July to December 2021, but most of these were likely automatic or cancelled by a delegate rather than personally by the minister, and others could have been made by then immigration minister, Alex Hawke.
For example, the infamous cancellation of tennis star Novak Djokovic’s visa in January 2022 was Hawke’s decision.
In support of the other grounds, CEU22 has argued that Andrews failed to “meaningfully read and consider the relevant materials before her”.
Andrews has told the court she does not recall when she received the brief or how long she took to read it, but confirmed she read the entire document. “It was my invariable practice to read the statement of reasons in full before making a decision,” Andrews told the court.
In the court documents, CEU22 refers to “disturbing” evidence from a departmental official that the hard copies of the signed brief were destroyed on or about 9 February 2022, one month after the start of the case.
