Failure to give proper, genuine and realistic consideration to the merits of a case : a critique of Carrascalao

In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173, Griffiths, White and Bromwich JJ unanimously found that the Minister for Immigration and Border Protection failed to give proper, genuine and realistic consideration to the merits before deciding to cancel the visas of two non-citizens on national interest grounds under section 501(3) of the Migration Act 1958 (Cth). This article offers a critique of the Carrascalao judgment in two respects. First, despite correctly demonstrating that the Minister did not globally engage in an active intellectual process in cancelling the visas of two non-citizens, the Full Court paradoxically went to some lengths to demonstrate that the Minister had engaged in an active intellectual process in justifying why the other judicial grounds of appeal should be dismissed. Arguably, this led to a judicial decision that is internally inconsistent and illogical in a broad context. Secondly, this article offers a close critique of the reasoning of Griffiths, White and Bromwich JJ in dismissing several of the other grounds of appeal raised in the judicial review applications (concerning procedural fairness and construction of the section 501(3) national interest statutory power).