Chetcuti v Minister for Immigration and Border Protection

In this case, the appellant, Chetcuti, sought judicial review of the Minister's decision to cancel his visa under s 501(2) of the Act on character grounds. The Minister contends that he gave proper, genuine and realistic consideration to the material before him, while Chetcuti argues that the Minister spent only 11 minutes considering the material, which was insufficient. The primary issue before the court was whether the Minister gave proper, genuine and realistic consideration to the materials provided by the Department. The appellant argued that the Minister’s consideration of the decision and the relevant material commenced no earlier than 10.14 am on 14 August 2017 and concluded at 10.25 am, and that was an insufficient time to allow an active intellectual process to be applied to the merits of the decision. The Minister accepted that eleven minutes would have been an insufficient time to engage in the required active intellectual consideration, but submitted that the appellant had failed to prove that his consideration did not begin at about 9.16 am.

The court found that the primary judge correctly found that the appellant had not proved that the Minister failed to give actual intellectual attention to the merits of the decision to cancel the appellant’s visa. The court held that it is likely that the Minister commenced his consideration of the relevant materials relevant to the new decision while awaiting notification that the order had been made, and that he gave "full consideration to all information before [him] in this case", as he said he did in his signed statement of reasons. The court found that the failure to delete the formulaic words from the Minister’s reasons does not bear one way or the other upon the issue of how much time the Minister spent considering all of the information. Therefore, the appellant has not proved that the Minister failed to give active intellectual attention to the merits of the decision to cancel the appellant’s Absorbed Person visa. The court held that no occasion therefore arises to consider the rule in Jones v Dunkel.

The appeal was dismissed, and the orders of the primary judge were set aside. The court quashed the decision of the Respondent dated 14 August 2017 to cancel the visa of the Appellant and ordered the Respondent to pay the Appellant's costs of the proceeding before the primary judge and the appeal.