EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2023] FCAFC 130


FEDERAL COURT OF AUSTRALIA

EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130

Appeal from: EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1349
File number(s): NSD 1089 of 2022
Judgment of: ABRAHAM, O'SULLIVAN AND RAPER JJ
Date of judgment: 15 August 2023
Catchwords:

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

HELD – appeal dismissed

Legislation: Migration Act 1958 (Cth)
Cases cited: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595
Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Chamoun v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75
Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758
Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; (2021) 288 FCR 657
D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242
EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1349
EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436
Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442
Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Hooton v Minister for Home Affairs [2018] FCAFC 142; (2018) 264 FCR 517
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417

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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].