High court may hear ‘bizarre’ immigration case involving Alex Hawke, a former marine and a steering wheel photo

A "bizarre" immigration case that featured a photo of a signed ministerial brief next to a steering wheel could be on its way to the high court.

The photograph contributed to a finding that the then immigration minister, Alex Hawke, rushed a visa cancellation decision.

In March the federal court overturned Hawke's decision not to restore the visa of former US marine and civilian contractor Joseph Leon McQueen, finding the minister was directed to "sign here" by stickers on his brief without sufficient personal consideration of the case.

After the federal government lost a full court appeal last week, the new immigration minister, Andrew Giles, granted McQueen a 12-month bridging visa on Wednesday, resulting in his release after 921 days in detention.

Although McQueen's lawyers say he is "ecstatic" to be reuniting with his family in time for Christmas, his case has taken a further twist.

The Albanese government has indicated it intends to seek leave to appeal in the high court, apparently concerned the case may set a precedent against the use of summaries to assist ministers exercising personal powers in the home affairs portfolio and across government.

McQueen's visa was automatically cancelled in late 2019 when he was sentenced to 21 months in prison for selling methylamphetamine - offending he attributed in part to post-traumatic stress disorder and financial hardship from a back injury.

At 10am on 13 April 2021, Hawke says he was handed a brief about whether to restore McQueen's visa at Parliament House in Canberra, before deciding to affirm its cancellation a little over 30 hours later at about 4.20pm the following day. Hawke says he did so inside his house in north-west Sydney.

McQueen, a father of seven and grandfather who had spent 22 years in Australia, used a photo of Hawke's signed decision to argue it had been rushed.

The photo included in the court book by Hawke 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 three justices in the full federal court appeal rejected the minister's request there be a presumption that he read McQueen's representations and not just a departmental summary. "This is an unusual and somewhat bizarre factual situation," the judges said.

Despite the fact there was "no objective urgency or pressing expedition", Hawke had given himself "not much more than a 24-hour period in which to make a decision with profound effects for Mr McQueen's life".

The judges said Hawke "appeared to have been sufficiently pressed for time to have a photo of his decision taken in a car and sent as proof he made a decision, instead of handing the folder to his staff or communicating the outcome in a regularised way".

"In these circumstances, we find it unlikely in the extreme that the minister devoted any time, let alone a further hour on top of reading the departmental brief, to considering the representations himself."

Attachments to the brief totalled 230 pages, with documents including representations from McQueen, his partner, a handwritten letter to the parole board and two letters from his children.

The full federal court justices said these handwritten pleas were "more direct, more personal" and could have persuaded the minister but their expression was "not captured at all in the departmental summary" used by Hawke. They upheld the federal court decision.

McQueen's solicitor, Ziya Zarifi, said his client was "thankful to the current minister" for granting him a bridging visa, which was "a great present for the family" before Christmas.

But Zarifi said he remained "concerned" that a bridging visa "doesn't resolve my client's status".

"He considers himself an Australian - his family are all here, his children and grandchildren are all Australian-born," Zarifi said. "He needs closure of this chapter of his life."

Jason Donnelly, McQueen's barrister, rejected concerns the case could have broader implications for ministerial decision-making.

"This was not merely a case of relying on departmental summaries, it's the circumstances the decision was made," Donnelly said. "It is very unusual."

The case is scheduled to return in February to the federal court where McQueen is arguing for an order to compel a fresh decision on restoring his visa.

A government spokesperson said: "The [immigration] minister cannot comment on individual cases due to privacy obligations. The government is also unable to comment on ongoing court matters."