For the third time in less than three years Immigration Minister Peter Dutton has, within what appears to be an unseemly short time period, overturned or rendered irrelevant successful court challenges to the exercise of his power to cancel a person’s visa on the grounds of their criminal record.
This time the visa holder is Malta-born 73-year-old Frederick Chetcuti, who arrived in Australia in 1948 at the age of two. By a majority of two to one, the Full Court of the Federal Court this week allowed Chetcuti’s appeal and set aside Dutton’s visa cancellation because it appears Dutton took just 11 minutes to make a decision — despite having a 130-page brief in front of him.
In 2017 Chetcuti’s 24-year jail term for the murder of his wife, Gloria, was coming to an end. On March 28 that year, Dutton cancelled his visa. Chetcuti appealed and, for some reason not revealed, government lawyers agreed to his request to cancel that decision. That decision was made just prior to the hearing of the appeal by Chetcuti on August 14 2017.
What happened next is where Dutton went wrong.
Dutton’s department prepared a brief of around 130 pages which would allow him to consider a new cancellation of Chetcuti’s visa. The brief was placed on the minister’s desk at 9.16am on August 14. At 10.14am Dutton was informed a court had made the decision to cancel his previous decision. He made his decision to cancel the visa only 11 minutes later, at 10.25am.
Once again, Chetcuti appealed.
Chetcuti’s lawyers referred to a previous case where Dutton had acted with seemingly undue haste. Dutton had cancelled the visas of two men, Helder Carrascalao and Tomasi Taulahi, late on December 14 2016. This was the second time he had done so, after being told by the Full Court of the Federal Court earlier that day — at 4.15pm to be precise — that it was overturning that previous attempt to remove the two men from Australia. Carrascalao was born in East Timor; Taulahi in Tonga. They both had criminal records and were alleged to be associated with motorcycle gangs.
After the 4.15pm decision there was a flurry of activity involving the Department of Immigration, Dutton’s office and the lawyers for the two men. At 7.37pm and 7.43pm respectively, about 370 pages relating to Carrascalao and 300 pages concerning Taulahi were sent by the Department of Immigration to Dutton’s office.
Despite the voluminous nature of the material — which, even at a cursory read, would take more than an hour or so — Dutton made his decision to again cancel Taulahi’s visa at 8.18pm and Carrascalao’s visa at 8.25pm.
While the Federal Court could not determine how long Dutton spent on each submission, they forensically analysed just how little time Dutton actually had to read and mull over each of the cases. What was clear, the judges said, was “that, assuming a five-minute delay in providing hard copies of the material to the minister after they were received electronically by his personal staff, the minister had, at most, 30 minutes to consider all the Taulahi material”.
They went on:
Assuming that he was unable to turn his attention to the Carrascalao material (in either its original or revised form) during that period, he had, at most, 13 minutes to consider the relevant material before he decided at 8.25pm to cancel Mr Carrascalao’s visa …
Not surprisingly, the judges said 43 minutes represented “an insufficient time for the minister to have engaged in the active intellectual process which the law required of him in respect of both the cases which were before him”.
Dutton’s statements of reason for signing in relation to both men that December night, the judges said, were “replete with statements to the effect that the minister had noted, found, accepted, had regard to, considered and recognised particular matters. These should not be understood as mere verbal formulae”.
Instead they “should signify that the minister had engaged intellectually with each particular matter and had positively formed the state of mind which each conveys. It is reasonable to suppose that the formation of these multiple states of mind would occupy a minister for some considerable time”.
“On the timelines outlined earlier, that does not seem to have been possible in the present case,” the judges concluded.
Peter Dutton’s office has been contacted for comment.
Immense power in action
One would have thought Dutton would have learned his lesson. But Chetcuti’s case seemingly shows otherwise.
As Justices Murphy and Rangiah found on Tuesday:
It is more probable than not that the minister began his consideration of the [Chetcuti] material after 10.14am. In reaching this conclusion we are influenced by the fact that the minister paid so little attention to the material that he erroneously stated that he had given consideration to all the information had been supplied by or on behalf of the appellant in connection with the decision, when there was no such information.
The error in the statement is consistent with the minister having spent no more than 11 minutes considering the material. If he had commenced his consideration in sufficient time to allow an active intellectual process to be directed to the relevant material, it is probable that he would have realised his error and corrected it.
Cancelling a person’s visa is one of the most significant powers vested in a government minister. It has life-changing implications for the person involved — in this case particularly so given Chetcuti had not lived in Malta for 76 years. One wonders if there are other visa revocation cases handled by Dutton where voluminous materials are not deliberated upon, but instead given a cursory glance by him? An audit of ministerial visa revocation files carried out by an independent reviewer would give us the answer.
Dutton’s conduct in this case and the 2017 case seemingly show how little he is interested in according fairness to the visa holder and using his considerable powers in deliberative ways. And this is the minister with more powers than any other in the Morrison government.
Greg Barns is a barrister and author of Rise of the Right: The War on Australia’s Liberal Values.