The immigration minister is not required to personally read submissions for intervention on visa decisions, the high court has ruled, in a decision breaking Labor’s losing streak on sensitive migration cases.
On Wednesday, the high court unanimously ruled in favour of Andrew Giles in a long-running case featuring a “bizarre” photo of a signed ministerial brief next to a steering wheel.
On 14 April 2021, the then immigration minister, Alex Hawke, decided not to reinstate the visa of Joseph Leon McQueen, a father-of-seven and grandfather-of-three – who had spent 22 years in Australia – due to his drug convictions.
The federal court overturned Hawke’s decision the following year, finding the minister was directed to “sign here” by stickers on his brief without sufficient personal consideration of the case.
That finding was supported by a photo showing a signed page in a two-ring binder marked with the stickers sitting in an unidentified person’s lap by a steering wheel, in what three judges of the full federal court labelled “an unusual and somewhat bizarre factual situation”.
The full federal court upheld the original decision, prompting an appeal by the Albanese government which feared a precedent had been set that would “consign the minister to a legal obligation to read every word on every page of every document”.
In the high court, the chief justice, Stephen Gageler, and justices Michelle Gordon, James Edelman, Simon Steward and Jacqueline Gleeson found that Hawke “did not read or otherwise consider any of the actual representations made by the respondent, or on his behalf”.
In a majority judgment, they rejected “the statement made in the draft reasons that the minister had considered the documents the respondent had submitted”.
Nevertheless, the court held that the minister was not required to read the submissions received in every case, but can rely on departmental briefs which accurately summarise 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,” they said.
In separate written reasons, justices Jayne Jagot and Robert Beech-Jones noted the “grave consequences” of visa cancellation, but also allowed the appeal.
They said it was up to the person challenging the validity of the decision to “identify the matter in, or the particular aspect of the form of, the representations” that required the personal attention of the minister.
In a separate case decided on Wednesday, the court ruled in favour of LPDT, a Vietnamese national, who argued that the Administrative Appeals Tribunal had made a material error by finding his criminal offending, which included trafficking a drug of dependence, had been of “a very serious nature”.
The full federal court found this was an error but dismissed the appeal on the basis it was not material. The high court disagreed, finding that the tribunal’s decision could have been different had there been no error.
On 17 April the high court will hear the case of ASF17, an Iranian man detained for more than a decade who refuses to meet Iranian authorities because he fears for his life if he is removed to Iran because he is bisexual.
The case will test whether people in immigration detention must be released if their refusal to cooperate has prevented them being deported.
