not enough considerationMinister for Immigration, Citizen v McQueen [2022] FCAFC 199 is not the first case that I have blogged about where the underlying issue is whether the Minister, when exercising his personal powers under section 501CA (4) of the Migration Act had failed to give any proper, genuine, or realistic consideration himself to the Applicant’s representations. In the other case, 11 minutes was insufficient time to properly consider to making a fresh cancellation decision after a judgment was delivered.

In McQueen’s case the primary judge had concluded that the Minister had not personally understood Mr McQueen’s representations because he had only read a summary provided to him in a departmental decision. The Minister appealed, contending that consideration of briefing materials from departmental officers was sufficient.

On Appeal, the Full Court found that the Minister was directed to “sign here” by stickers on the brief and did not exercise sufficient personal consideration in his decision. There is an interesting photograph from the Court book which is extracted in the judgment (at [23]). it appears to show McQueen’s file on the Minister’s lap in a car.  The Full Court held that when a minister chooses to exercise their powers under section 501CA (4) personally, it is the ministers state of mind about the persuasiveness or lack of, of the representations which govern the statutory task. The ‘deliberative persuasiveness’ cannot be delegated.

Following the judgment in December, it has been reported in the media that government intends to seek leave to appeal the High Court. At the time of writing this post, I don’t know the outcome of that application. Watch this space.

Creative commons acknowledgment for the photograph.

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