MIGRATION – s 501(3) of the Migration Act 1958 (Cth) – where the Minister determined to exercise his discretion to cancel the appellant’s visa – where the primary judge dismissed the application for judicial review of the Minister’s decision – whether the Minister failed to consider whether to consider unsolicited material provided by the appellant – whether the Minister had acted unreasonably or illogically in making the decision where he was in possession of new information and without considering whether to consider or alternatively without considering that new information – whether the primary judge erred in finding that certain of the Minister’s findings and conclusions were open or understood on the evidence
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130
Case
[2023] FCAFC 130
Decision Date
CaseChat Overview and Summary
In the case of EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs, the appellant, EUF20, sought to challenge the decision of the Minister to cancel his visa under section 501(3) of the Migration Act 1958 (Cth). The Federal Court of Australia was tasked with reviewing the decision of the primary judge, who dismissed the appellant’s application for judicial review. The central issue before the court was whether the Minister had failed to consider whether to consider unsolicited material provided by the appellant, and whether the Minister acted unreasonably or illogically by making the decision without considering this new information.
The court found that the appellant’s arguments were not well-founded. The Minister’s discretion under section 501(3) of the Migration Act allows for the cancellation of a visa if the Minister reasonably suspects that the person does not meet the character test and is satisfied that the cancellation is in the national interest. Section 501(5) of the Act explicitly states that the rules of natural justice do not apply to such decisions, meaning the Minister is not required to provide an opportunity for the affected person to be heard. The court held that the appellant’s contention that the Minister must consider unsolicited information before making a decision was contrary to the statutory scheme, which allows for decisions to be made with less than a complete picture of the relevant facts.
The reasoning of the court was that the statutory framework permits the Minister to make decisions without the obligation to consider all unsolicited information, and that the appellant’s submissions were misdirected. The court found that the primary judge had correctly understood the evidence and the Minister’s findings and conclusions. Consequently, the appeal was dismissed, with the court ordering that the appellant pay the costs of the respondent to be agreed or assessed.
The final orders of the court were that the appeal be dismissed and that the appellant pay the costs of the respondent to be agreed or assessed, as per Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the costs of the respondent to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
For the reasons given in respect of ground 1, ground 3 is not established.Conclusion The appellant has not established the grounds of appeal. Accordingly, the appeal is dismissed, with costs.
Ratio Decidendi
Legal Principle Established
The appellant made the submission that it is not to the point that s 501(5) of the Migration Act gives the Minister the option of proceeding without affording natural justice. It was contended that it is one thing for a decision-maker to determine in advance of a decision not to provide an affected person with an opportunity to be heard, but it is quite another for the decision-maker to determine not to consider information which the affected person provided prior to the decision being made. Though the Minister was at least aware of the new material, the Minister admitted that he had not even considered the covering email which outlined the nature and relevance of the new material, which in the appellant’s submission, indicated that the Minister could not have made any rational decision not to consider the new material. Furthermore, s 501(5) does not, it was submitted, oblige or permit the Minister to proceed by paying no regard to information already in his possession. The appellant further submitted that s 501(5) does not relieve the Minister of the implied obligation to act reasonably when forming a state of satisfaction or exercising a discretion.Consideration The appellant’s submissions cannot be accepted. It is appropriate at the outset to make some observations about the statutory scheme. The Minister made a decision under s 501(3) of the Migration Act. Relevantly, that section empowers the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test, and is satisfied that the cancellation is in the national interest. As a starting point, the Migration Act expressly states that the rules of natural justice do not apply to the making of such a decision: s 501(5). Natural justice involves an entitlement on the part of the person affected by the exercise of the power (to be given a reasonable opportunity to be heard, to have adverse information relevant to the exercise of the power drawn to her or his attention, to be fairly apprised of the matters which might lead a decision-maker to exercise the power adversely to the person, and so on), and involves a corresponding legal obligation or duty imposed on the decision-maker: Chamoun v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 (Chamoun) at [78]. That being so, as the Minister submitted, s 501(5) contemplates or envisages that the power under s 501(3) may be exercised where the Minister has less than a full picture because the person who is in a position to most directly inform the Minister of relevant factual information about the circumstances in which the power is to be exercised is not required to be given an opportunity to be heard. It follows, as a matter of logic, that s 501(5) contemplates or envisages that the Minister may proceed on the basis of information which is not up to date. That is not to suggest that the Minister does not have the power to obtain further information before exercising the power: Chamoun at [79].