HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJMINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS APPLICANT
AND
JOSEPH LEON McQUEEN RESPONDENT
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen
[2024] HCA 11
Date of Hearing: 14 December 2023
Date of Judgment: 10 April 2024P2/2023
ORDER
1.Special leave to appeal is granted.
2.Appeal allowed.
3.Set aside order 1 of the orders made by the Full Court of the Federal Court of Australia on 13 December 2022 and in its place order that:
(a)the appeal be allowed; and
(b)orders 1, 2 and 3 made by the Federal Court of Australia on 23 March 2022 be set aside and in their place order that the proceeding be dismissed.
4.The appellant pay the respondent's costs in this Court.
On appeal from the Federal Court of Australia
Representation
P D Herzfeld SC with N A Wootton for the applicant (instructed by Australian Government Solicitor)
L G De Ferrari SC with J D Donnelly for the respondent (instructed by Zarifi Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen
Immigration – Visas – Cancellation of visa – Revocation of cancellation decision – Where respondent's visa mandatorily cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where respondent made representations seeking revocation of cancellation decision under s 501CA(4) – Where Minister provided by Department of Home Affairs with submission summarising respondent's representations, draft statement of reasons, copies of respondent's representations and other relevant material – Where Minister decided to personally exercise power under s 501CA(4) to revoke cancellation decision – Where Minister decided not to revoke cancellation decision – Where Minister read only departmental submission and draft statement of reasons – Where s 501CA(4) obliges Minister to "read, identify, understand and evaluate" representations – Whether Minister required to personally read some or all of respondent's representations to form state of satisfaction whether "another reason" existed to revoke cancellation of respondent's visa – Whether Minister entitled to rely upon summary of representations contained in departmental submission – Whether summary provided adequate and accurate.
Words and phrases – "another reason", "cancellation decision", "directly consider", "duty of consideration", "jurisdictional error", "personally examine", "personally exercise", "read, identify, understand and evaluate", "representation", "revocation", "submission", "summary", "visa".
Migration Act 1958 (Cth), ss 501(3A), 501(6), 501CA(4).
GAGELER CJ, GORDON, EDELMAN, STEWARD AND GLEESON JJ. The respondent is a citizen of the United States of America whose visa was mandatorily cancelled ("the cancellation decision") in 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) ("the Act") because the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Minister") was satisfied that the respondent did not pass the "character test" as defined in s 501(6) of the Act. Consequentially, the respondent made representations to the Minister seeking revocation of the cancellation decision pursuant to…
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- AGLC
- Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11
- Case
- [2024] HCA 11
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the Minister, when personally exercising the power under section 501CA(4) to revoke a visa cancellation, was obliged to personally read, identify, understand, and evaluate the respondent's representations. Specifically, the Court had to consider whether the Minister was required to personally examine some or all of the respondent's representations to form the requisite state of satisfaction that "another reason" existed to revoke the cancellation, or if the Minister was entitled to rely on a summary of those representations contained within a departmental submission.
The High Court held that the obligation imposed by section 501CA(4) to "read, identify, understand and evaluate" the representations meant that the Minister was required to personally engage with the substance of those representations. Relying solely on a departmental submission, even if accurate and adequate, did not satisfy this statutory obligation. The Court reasoned that the purpose of requiring the Minister to personally consider the representations was to ensure a proper and individualised assessment of whether "another reason" existed to revoke the cancellation. The Minister's failure to personally read and evaluate the representations constituted a jurisdictional error.
Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court, and ordered that the proceeding be dismissed.
Orders
Orders of the court
1. Special leave to appeal is granted.
2. Appeal allowed.
3. Set aside order 1 of the orders made by the Full Court of the Federal Court of Australia on 13 December 2022 and in its place order that:
(a) the appeal be allowed; and
(b) orders 1, 2 and 3 made by the Federal Court of Australia on 23 March 2022 be set aside and in their place order that the proceeding be dismissed.
4. The appellant pay the respondent's costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GAGELER CJ, GORDON, EDELMAN, STEWARD AND GLEESON JJ, JAGOT AND BEECH-JONES JJ
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