How long did it take the immigration minister, Alex Hawke, to decide to allow the deportation of a man who had spent 22 years in Australia, a father of seven and grandfather of three?
That’s the question the federal court has allowed lawyers for Joseph Leon McQueen to put to the minister, after they seized on a bizarre uncropped photo produced to the court, which appears to show Hawke’s written decision in McQueen’s case propped next to the steering wheel of a car.
McQueen had been challenging the minister’s decision on the basis thatHawke allegedly didn’t give “genuine consideration of the human consequences” of the visa cancellation. However, the photo included in the court book as part of the “decision-record” by the minister armed the former US marine with a new argument.
The photo depicts a document signed by Hawke on 14 April in a binder containing two “sign here” stickers, which appears to sit on an unidentified person’s lap and includes what appears to be the steering wheel of a car.
The court has made no findings about the photo and has not yet heard any evidence as to who is depicted in it. Guardian Australia does not suggest it is Hawke. Nevertheless, the evidence helped McQueen win orders giving Hawke until 19 November to say when and how he received the departmental brief and decided to deny the visa, and how many visa decisions he has made personally.
Although the minister has the power to delegate visa decisions to departmental staff, doing so gives the former visa-holder a further avenue of appeal to the administrative appeals tribunal for a merits review. The minister’s personal decisions do not attract merits review.
McQueen’s lawyers hope to prove Hawke has engaged in “industrial scale personal decision-making”, although Justice Craig Colvin has said he is not persuaded that is the “only inference that might be drawn” from the use of “sign here” stickers and there is “no claim the minister did not read the materials at all”.
McQueen is a US citizen who married an Australian he met on a visit to Australia while he was serving in Japan in the US navy.
McQueen was granted permanent residency of Australia in 1995 before returning to the US between 2006 and 2011, when he worked as a civilian contractor installing electronics for the Australian and US militaries in fly-in fly-out stints in the Afghanistan and Iraq wars. He returned to Australia in 2011, where he now has seven children and three grandchildren.
McQueen’s visa was automatically cancelled in late 2019 when he was sentenced to 21 months in prison for selling methylamphetamine, offending he attributes in part to post-traumatic stress disorder and financial hardship from a back injury.
McQueen appealed the cancellation to the minister, who upheld the decision because he did not believe McQueen passed the character test. He has been in immigration detention since June 2020.
In court documents, seen by Guardian Australia, McQueen’s lawyers argue Hawke “failed to give proper, genuine, and realistic consideration to the merits” of his case, denied him procedural fairness, and had engaged in a “de facto delegation” of the decision to his department.
Hawke circled options on the departmental submission and the record of decision, signing and dating those two documents and the final page of a 107 paragraph statement of reasons, adopted without alteration.
But McQueen’s lawyers argue the photo – absent other evidence – could support an inference that the minister followed “the department’s instruction to ‘sign here’ while he was in a car, sitting behind the steering wheel”. They say such an inference would support their case that the decision was not properly considered by the minister.
In seeking the total number of decisions Hawke has made, they seek to argue he would have had to have spent “all his time” on visa decisions, while also being responsible for other ministerial duties and constituent work.
“Given the significant human consequences involved in this case (ie permanent exclusion from Australia and serious adverse impact on various Australian citizens), the [minister] could not have given genuine consideration of the human consequences related to the [applicant’s] case given the apparent circumstances in which the decision was purportedly made,” McQueen’s lawyer, Ziaullah Zarifi, submitted.
Hawke’s lawyers have rejected claims they say amount “to an allegation of fraud on the part of the minister” to the effect that reasons for his decision were “a sham and were not in fact the reasons of the minister at all”.
Justice Colvin disagreed with that characterisation, noting McQueen’s lawyers accept Hawke “was presented with reasons why the visa cancellation should not be revoked, circled an option to exercise a personal power and then adopted the reasons without discussion” but argue that is “insufficient” to consider the merits of the case.
Hawke’s lawyers resisted McQueen’s application to force him to answer questions about his visa decisions and to amend his claim to add the “de facto delegation” argument.
Colvin sided with McQueen on both points, deciding that “it could not be concluded that the claims made are unarguable”. The matter returns for a hearing on 14 December.
Guardian Australia contacted Hawke for comment. A spokesperson for the home affairs department said it was aware of the case but “as the matter is currently before the court, it would not be appropriate to comment further”.
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Dr Jason Donnelly appears as the barrister for Former US marine Joseph Leon McQueen.