Alex Hawke’s decision to deport a former US marine has been overturned because he was directed to “sign here” by stickers on his brief without sufficient personal consideration of the case.
Joseph Leon McQueen successfully challenged the immigration minister’s refusal to revoke his visa cancellation in a federal court judgment handed down on Wednesday. Guardian Australia understands that Hawke will appeal the decision.
McQueen, a father of seven and grandfather of three who had spent 22 years in Australia, used a bizarre photo of Hawke’s signed decision to argue it had been rushed.
The photo included in the court book by the minister depicted his signed decision of 14 April in a binder containing two “sign here” stickers, which Justice Craig Colvin found was sitting on an unidentified person’s lap and also showed the steering wheel of a car.
The judge noted that Hawke provided “no explanation” for the circumstances in which the photo was taken and why his decision was produced to the court in that way.
The judge made no finding the decision was made in the front seat of a car, but inferred “a degree of urgency” in its making.
McQueen is a US citizen granted permanent residency in Australia in 1995 before 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.
McQueen’s visa was automatically cancelled in late 2019 when he was sentenced to 21 months in prison for selling methamphetamine, offending he attributes in part to post-traumatic stress disorder and financial hardship from a back injury.
McQueen’s lawyers accused Hawke of engaging in a process of “industrial-scale personal decision-making” on visa cancellations.
Hawke told the court he received the brief on McQueen’s case on 13 April at 10am in Canberra and signed it around 4:20pm the next day at his house in north-west Sydney, a window of 30 hours and 20 minutes to consider it.
Justice Colvin rejected the submission there had been a “de facto delegation” of the decision to Hawke’s department – but agreed he“failed to give proper, genuine, and realistic consideration to the merits” of the decision.
Justice Colvin found it would only have taken “less than an hour” to give personal consideration to the 230 pages of material included in the brief which was “not technical” and “not voluminous”.
Justice Colvin noted the department gave Hawke a 12-page submission that attached all of McQueen’s representations in the case, but “at no point” did it indicate he was required to consider all of the material.
On the contrary, the brief indicated that personal consideration was “not required” for reasons including that:
Five recommendations could be adopted by circling responses;
There were two “sign here” stickers attached to the decision page and the draft set of reasons and;
The presence of a summary indicating it was “appropriate” to rely on that rather than the primary material.
“Having regard to the way in which the minister was briefed and the absence of any evidence from the minister or any member of his department … I find that the minister followed the instruction he was given.”
Justice Colvin said his view that Hawke had acted on the summary information was reinforced by the “limited time” available to him to make a decision and the “urgency with which he was asked to approach, and did approach, the task”.
Justice Colvin found it was “entirely appropriate” for the department to brief the minister, but the “deliberative task” had to be personally performed by the minister.
That was of “particular significance” because in visa cancellations a delegate’s decision can be reviewed on its merits but the minister’s “personal exercise of the power” cannot, he said.
Justice Colvin ordered the decision not to revoke the visa cancellation be set aside and the matter be sent back to the minister to determine “according to law”, with Hawke to pay McQueen’s costs.
McQueen’s lawyer, Ziya Zarifi, said his client, “his partner and Australian citizen children are all relieved by the judgment”.
“They all hope that he will be given another chance to remain in Australia so he can once again make a practical, financial and emotional contribution to their lives,” Zarifi told Guardian Australia.
Zarifi argued the American government would want “genuine and realistic consideration” of his case, given his work “alongside Australians and US military personnel to fight for democracy [and] freedom”.
“It would therefore be in the national interest for Mr McQueen, who is a reformed and rehabilitated person, to be allowed to remain with his family in Australia.”
Guardian Australia contacted Hawke for comment.
