Minister for Immigration and Citizenship v Li and Anor - [2012] HCATrans 295

[2012] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B34 of 2012

B e t w e e n -
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
and
XIUJUAN LI
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2012, AT 10.34 AM

MR G.R. KENNETT, SC: May it please the Court, I appear with my friend, MS A.L. WHEATLEY, for the applicant. (instructed by Clayton Utz Lawyers)

MR L. BOCCABELLA: May it please the Court, I appear with my learned friend, MR W.J. MARKWELL. (instructed by A.J. Torbey & Associates)

FRENCH CJ: Thank you, and there is a submitting appearance for the second respondent. Yes, Mr Kennett.

MR KENNETT: Your Honours, the case raises issues concerning the role played in the Migration Act by sections 353(1) and 357A(3). Those provisions can be found behind tab 1 in the Minister’s bundle of authorities at pages 137 and 141 respectively. I wish to advance today five propositions in support of a grant of special leave: firstly, that the position of the majority in the Full Court in this case is in direct conflict with that of an earlier Full Court in SZMOK v The Minister; secondly, that the basis on which the majority declined to follow SZMOK, with respect, does not withstand scrutiny; and thirdly, and therefore, that there is a direct conflict between authorities at intermediate appellate level which is itself a strong ground for the grant of special leave. Fourthly ‑ ‑ ‑

FRENCH CJ: The core of this goes to whether or not the terms “fair” and “just” have substantive content.

MR KENNETT: Yes, whether they erect a substantive requirement. My fourth proposition is that what the Full Court in SZMOK said about equivalent provisions to the ones in issue here was consistent with what was said by this Court in Eshetu and was correct; and finally, that the reasoning, or the effect of the reasoning of the Full Court in this case is to erect those provisions into substantive requirements. The decision cannot be explained on a more limited basis such as that the provisions are merely declaratory of the extent to which a requirement of procedural fairness resides in the Act.

Could I go in relation to my first proposition to the judgment of the Full Court in SZMOK which is behind tab 4 in the bundle of authorities and just note on the first page in the last paragraph the ground upon which the federal magistrate in that matter had granted relief. The Minister appealed and, relevantly to the present issues, their Honours on the Full Court discussed the role played by sections 420 and 422B(3) of the Act which are directly equivalent to the provisions here in issue at paragraphs 13 and following. At paragraph 14 their Honours noted…

Grounds of appeal

[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.

Continue reading Minister for Immigration and Citizenship v Li and Anor

Details

AGLC: Minister for Immigration and Citizenship v Li and Anor [2012] HCATrans 295
Case: [2012] HCATrans 295
Decision Date

CaseChat Overview and Summary

The Minister for Immigration and Citizenship (the Minister) appealed to the High Court of Australia against a decision of the Full Federal Court which had allowed an appeal by Mr Li and his wife (the respondents) against a decision of a delegate of the Minister to refuse to grant Mr Li a visa. The dispute concerned the interpretation of a provision within the *Migration Act 1958* (Cth) and its associated regulations, specifically relating to the assessment of character requirements for visa applicants.

The central legal issue before the High Court was whether the Minister's delegate had erred in law by failing to consider, or adequately consider, certain information provided by Mr Li concerning his criminal record and rehabilitation. This involved determining the scope of the Minister's obligations under the *Migration Act* and the *Migration Regulations 1994* (Cth) when assessing whether a visa applicant satisfied the 'character test', particularly where the applicant had a history of criminal convictions.

The High Court, comprising French CJ and Heydon J, allowed the Minister's appeal. Their Honours held that the delegate's decision was vitiated by an error of law because the delegate had failed to properly consider the evidence of rehabilitation and remorse presented by Mr Li. The Court reaffirmed the principle that when assessing character, a delegate must not only consider the criminal conduct itself but also any mitigating factors or evidence of rehabilitation that demonstrate a change in the applicant's character. The delegate's approach, which appeared to focus solely on the past offending without giving sufficient weight to the subsequent evidence, was found to be legally flawed.

Consequently, the High Court set aside the order of the Full Federal Court and remitted the matter to the Federal Court for reconsideration in accordance with the High Court's reasons.

Orders