Chetcuti v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 02 July 2019
• Neutral Citation: [2019] FCAFC 112
• Date: 02 July 2019

FEDERAL COURT OF AUSTRALIA

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112

Appeal from:	Chetcuti v Minister for Immigration and Border Protection [2018] FCA 477
File number:	NSD 1114 of 2018
Judges:	MURPHY, RANGIAH AND O'CALLAGHAN JJ
Date of judgment:	2 July 2019
Catchwords:	MIGRATION – appeal from a decision of a single judge of this Court - decision of the Minister, made personally, to cancel a visa on character grounds– whether the Minister gave proper, genuine and realistic consideration to the materials provided by the Department - whether the appellant established on the balance of probabilities that the Minister’s consideration of the materials took only eleven minutes – whether the primary judge should have drawn a Jones v Dunkel from the failure of the Minister or a member of his staff to give evidence as to when the Minister’s consideration of the materials commenced - whether the primary judge failed to accord procedural fairness to the appellant, a self-represented litigant, by not informing him that he could seek further discovery from the Minister concerning how or when the decision was made; ask the Court to draw inferences from the Minister’s failure to put on evidence about what the Minister did to consider the decision; and ask the Court to issue subpoenas to the Minister and/or others to give evidence
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Blatch v Archer (1774) 1 Cowp 63 Burgess v Minister for Immigration and Border Protection [2018] FCA 69 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 Commonwealth v Fernando (2012) 200 FCR 1 G v H (1994) 181 CLR 387 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Hamod v New South Wales [2011] NSWCA 375 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Haneef v Minister for Immigration (2007) 161 FCR 40 Henderson v Queensland (2014) 255 CLR 1 Jeray v Blue Mountain City Council (No 2) [2010] NSWCA 367 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration v Jia Legang (2001) 205 CLR 507 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15 Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278
Date of hearing:	20 February 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	119
Counsel for the Appellant:	Ms G Costello with Mr A Aleksov
Solicitor for the Appellant:	Mr L Bayly
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Mills Oakley Lawyers

Table of Corrections
15 May 2020	In paragraphs 27, 31, 75, 77 and 88, “2014” has been replaced with “2017”.
	In paragraph 97, “Kirijah” has been replaced with “Kijirah”.
	In paragraph 97, “2019” has been replaced with “2017 decision”.

ORDERS

		NSD 1114 of 2018
BETWEEN:	FREDERICK CHETCUTI Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGES:	MURPHY, RANGIAH AND O'CALLAGHAN JJ
DATE OF ORDER:	2 july 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the primary judge on 11 April 2018 be set aside, and in lieu thereof the Court makes the following orders:

1. an order to quash the decision of the Respondent dated 14 August 2017 to cancel the visa of the Appellant;

2. the Respondent pay the Appellant’s costs of the proceeding before the primary judge; and

3. the Respondent pay the Appellant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY AND RANGIAH JJ:

1. On 14 August 2017, the respondent (the Minister) made a decision under s 501(3) of the Migration Act 1958 (Cth) (the Act) to cancel the appellant’s Absorbed Person visa. The appellant’s application for judicial review of that decision was dismissed by a single judge of this Court on 11 April 2018. The appellant appeals against that judgment.

The grounds of appeal

2. The appellant relies upon the following grounds of appeal:

1. The judgment of the Court that the Minister gave proper genuine and realistic consideration to the decision under review is wrong and contrary to compelling inferences, and glaringly improbable, on the documentary evidence before the Court in light of the principal in Jones v Dunkel [1959] HCA 8; 101 CLR 298, which his Honour ought to have applied in the absence of the Minister and/or others giving evidence.

2. The Court below failed to apply procedural fairness to the Appellant by not explaining to a self-represented litigant in the appellant’s circumstances of long term closed detention that he could seek: further discovery from the Minister about how or when the decision was made; ask the Court to draw inferences from the Minister’s failure to put on evidence about what the Minister did to consider the decision; or ask the Court to issue subpoenas to the Minister and/or others to give evidence about how and when the Minister considered the decision.

3. The bulk of the argument focussed upon the first ground. The issue concerns whether the Minister considered the material before him for a time too short to allow an active intellectual process to be applied to the merits of the decision.

4. The appellant’s primary contention is that the Minister spent no more than 11 minutes considering the material before making his decision. The Minister contends that the evidence demonstrates that he could have taken up to 1 hour, 9 minutes. The issue devolves largely to a factual dispute as to the time at which the Minister commenced his consideration of the material. It requires that careful attention be given to the chronology of relevant events.

Background

5. The appellant is 73 years of age. He was born in Malta and arrived in Australia in 1948 at the age of two. He held an Absorbed Person visa.

6. On 25 June 1993, the appellant was convicted of the...