It is a principle of administrative law, that decision makers must give ‘proper, genuine and realistic consideration to the merits of the case’ before making their decision. If they fail to do so, the decision will be “infected” with jurisdictional error and be liable to be set aside by the court.

Mr Chetcuti (a 73 year old Maltese man who arrived in Australia at the age of two) was a convicted murderer serving a sentence of 24 years imprisonment. Shortly before the expiry of his sentence, the Minister cancelled his visa on the basis that Mr Chetcuti did not meet the character test. Mr Chetcuti sought judicial review of this decision. The Minister consented to the first decision being quashed. The Department then put in train a process which would allow the the Minister to make a fresh cancellation decision. The following events occurred on the morning of 14 August 2017:

  • At 9:16 am, 130 pages of documents relating to the decision were placed on the Minister’s desk
  • At 10:14am, the Minister is notified that the first cancellation decision has been quashed by the Court
  • At 10:25am, the Minister makes a fresh cancellation decision pursuant to sections 501(6)(a) and 501(2)(c) of the Migration Act

Mr Chetcuti then sought judicial review of this second decision on the basis that the Minister did not provide ‘proper, genuine and realistic consideration to the merits of the case’. He was unsuccessful at first instance but on appeal, the Full Court ( Chetcuti v Minister [2019] FCAFC 112) accepted the argument that the Minister had spent no more than 11 minutes considering the material before making a decision, which was an insufficient time to allow an ‘active intellectual process’ to be applied. Accordingly the second decision was quashed. 

The case is also interesting in that it considers how “Jones v Dunkel inferences” can be drawn when there is no evidence from the Minister or his staff as to what actually happened in the office on that morning. I am unsure what will happen to Mr Chetcuti next, but it may be a case of “3 strikes and he’s out”. 

Creative commons acknowledgment for the photograph.

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