EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866

EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866

The applicant did not prove that the Minister failed to give proper, genuine and realistic consideration to the visa cancellation. The Minister had the relevant materials for nearly two days before making the decision, was advised that he could and should review them before the anticipated consent orders, and the final changes were minor. The evidence did not support the inference that the Minister only considered the materials for about 20 minutes or failed to engage in an active intellectual process. No adverse Jones v Dunkel inference arose from the Minister not giving affidavit evidence, and the proposed tendency evidence was inadmissible.

Jurisdiction
Australia
Judgment Date
29 July 2021
Procedural Posture
Judicial Review of Visa Cancellation Decision Under S 501(3)(b) of the Migration Act 1958 (cth) / Final Judgment on Amended Originating Application
Outcome
Application dismissed with costs.
Legal Topics
['visa Cancellation on Character Grounds' 'proper, Genuine and Realistic Consideration' 'active Intellectual Process' 'jones V Dunkel Inference' 'tendency Evidence']
['migration Law' 'administrative Law'] ['visa Cancellation on Character Grounds' 'proper, Genuine and Realistic Consideration' 'active Intellectual Process' 'jones V Dunkel Inference' 'tendency Evidence']

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Procedural Posture

Judicial Review of Visa Cancellation Decision Under S 501(3)(b) of the Migration Act 1958 (cth) / Final Judgment on Amended Originating Application

Legal Issues

  1. 1 ["Whether the Minister failed to give proper, genuine and realistic consideration to the merits of the applicant's case before cancelling the visa under s 501(3)(b) of the Migration Act 1958 (Cth)." 'Whether the time available to the Minister to consider the materials was insufficient for the required active intellectual process.' 'Whether an adverse inference should be drawn from the Minister not giving evidence apart from answering interrogatories.' 'Whether proposed tendency evidence based on previous judgments was admissible under s 97 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The applicant did not prove that the Minister failed to give proper, genuine and realistic consideration to the visa cancellation. The Minister had the relevant materials for nearly two days before making the decision, was advised that he could and should review them before the anticipated consent orders, and the final changes were minor. The evidence did not support the inference that the Minister only considered the materials for about 20 minutes or failed to engage in an active intellectual process. No adverse Jones v Dunkel inference arose from the Minister not giving affidavit evidence, and the proposed tendency evidence was inadmissible.

Court Disposition

Application dismissed with costs.

Orders

  • ['The amended originating application filed on 8 September 2020 be dismissed.' "The applicant pay the respondent's costs, as agreed or taxed."]