Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane
[2021] HCA 41
Date of Hearing: 9 September 2021
Date of Judgment: 8 December 2021
S34/2021
ORDER
1.Appeal allowed.
2.Set aside orders 4 and 5 of the orders made by the Full Court of the Federal Court of Australia on 24 August 2020 and, in their place, order that:
(a)order 2 of the orders made by the Federal Court of Australia on 20 February 2020 be set aside and, in its place, order that the respondent pay the applicant's costs of the proceeding as agreed or taxed; and
(b)the appeal be otherwise dismissed.
3.The appellant pay the reasonable costs of the respondent in this Court.
On appeal from the Federal Court of Australia
Representation
G R Kennett SC with R S Francois for the appellant (instructed by Sparke Helmore Lawyers)
C L Lenehan SC with J D Donnelly and K P Tang for the respondent (instructed by Scott Calnan Lawyer)
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, Migrant Services and Multicultural Affairs v Viane
Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where respondent's temporary visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where respondent made representations seeking revocation of cancellation decision under s 501CA(4) – Where representations included bare assertions about conditions in American Samoa – Where Minister decided there was not "another reason" to revoke cancellation decision under s 501CA(4)(b)(ii) – Where Minister made findings about conditions in American Samoa and Samoa – Where it was common ground no evidentiary material to support Minister's findings – Whether Minister always obliged to make findings of fact in response to representations received – Whether Minister's findings relating to hardship respondent's family would face if visa cancellation decision not revoked were open – Whether Minister entitled to rely on personal or specialised knowledge, or commonly accepted knowledge, in making findings about conditions in American Samoa and Samoa – Whether as matter of procedural fairness Minister required to disclose personal or specialised knowledge and invite submissions from applicant about that knowledge before making findings.
Words and phrases – "another reason", "bare assertions", "commonly accepted knowledge", "conditions in American Samoa or Samoa", "hardship", "Minister's personal or specialised knowledge", "no evidence", "personal knowledge", "reasons for decision", "removal to American Samoa", "representations about revocation", "specialised knowledge", "visa cancellation".
KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ. The respondent was born in American Samoa, was largely raised in the Independent State of Samoa ("Samoa"), and is a citizen of New Zealand. At the age of 14 he arrived in Australia. In 2007, he was granted a Class TY Subclass 444 Special Category…
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.
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Details
AGLC
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Case
[2021] HCA 41
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs against a decision of the Federal Court of Australia concerning the cancellation of a temporary visa under section 501(3A) of the *Migration Act 1958* (Cth). The respondent had sought a revocation of this cancellation under section 501CA(4) of the Act, making representations that included assertions about conditions in American Samoa. The Minister had decided there was not "another reason" to revoke the cancellation, making findings about conditions in American Samoa and Samoa, which it was common ground lacked evidentiary support.
The central legal issues before the High Court were whether the Minister was always obliged to make findings of fact in response to representations, whether the Minister's findings regarding the hardship the respondent's family would face if the visa cancellation were not revoked were legally permissible, and whether the Minister was entitled to rely on personal or specialised knowledge, or commonly accepted knowledge, in making these findings. Crucially, the Court also considered whether, as a matter of procedural fairness, the Minister was required to disclose any such personal or specialised knowledge and invite submissions from the applicant before making findings based upon it.
The High Court allowed the appeal, setting aside the orders of the Federal Court. The Court reasoned that while an applicant's prospects of persuading the Minister to revoke a cancellation decision are enhanced by adducing evidence to support their claims, the Minister's decision-making process must be based on factual findings that are open to be made on the evidentiary materials before them. The Court noted that the majority in the Full Federal Court had found that the Minister's findings regarding conditions in American Samoa and Samoa were critical to the decision and had not been supported by evidence, leading to a jurisdictional error. However, the High Court ultimately determined that the appeal should be dismissed in part, with the appellant to pay the reasonable costs of the respondent in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 4 and 5 of the orders made by the Full Court of the Federal Court of Australia on 24 August 2020 and, in their place, order that:
(a) order 2 of the orders made by the Federal Court of Australia on 20 February 2020 be set aside and, in its place, order that the respondent pay the applicant's costs of the proceeding as agreed or taxed; and
(b) the appeal be otherwise dismissed.
3. The appellant pay the reasonable costs of the respondent in this Court.
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
KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected. The decision of the Full Court Because it was common ground that there was no evidence before the Minister concerning the speaking of English or the availability of health and welfare support in American Samoa or Samoa, the basis upon which the Minister had reached his conclusions on those matters assumed importance below. The majority decided that the evidence did not support a finding that the Minister used his own personal knowledge. That was so for four expressed reasons[22]. First, the Minister's own reasons did not expressly state that he was relying on his personal knowledge. Secondly, the matters were said not to be commonly known, which supported an inference that the basis for the two findings could not have been drawn from personal knowledge. Thirdly, it could not be inferred that the Minister had the required personal knowledge on the basis that he was the Minister charged with the responsibility of administering the Act. Fourthly, there was no evidence that the author of the Department's draft reasons had "any appreciation" of the Minister's prior knowledge. [22]Viane v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs (2020) 278 FCR 386 at 399‑400 [42]‑[46] per Kerr and Charlesworth JJ. As the majority concluded that it was an implied condition for the exercise of the power conferred by s 501CA(4) of the Act that the Minister's state of satisfaction "be formed on the basis of factual findings that are open to be made on the evidentiary materials"[23], it was said that this condition had not been complied with. This principle was said by senior counsel for the respondent to be supported by the reasons of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu[24]. In the result, the majority determined that the impugned findings were "critical"[25] to the Minister's reasoning process, and so it followed that the Minister had made a jurisdictional error.[23]Viane v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs (2020) 278 FCR 386 at 400 [47] per Kerr and Charlesworth JJ.[24](1999) 197 CLR 611 at 657 [145], [147].[25]Viane v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs (2020) 278 FCR 386 at 401 [48], [52], 403 [61] per Kerr and Charlesworth JJ. In contrast, Besanko J found that both matters were within the Minister's personal knowledge. His Honour also found that the respondent had made no relevant claim about the extent to which English is spoken in American Samoa and Samoa, and that this impugned finding had not, in any event, been shown to be "wrong"[26]. Moreover, and critically, both matters were said to support the ultimate finding, namely that "removal to Samoa or American Samoa [would] 'involve significant adjustments and hardship for the [respondent] and his family'"[27], a matter which favoured the respondent. It followed that the Minister had not erred.[26]Viane v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs (2020) 278 FCR 386 at 393 [13].[27]Viane v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs (2020) 278 FCR 386 at 393-394 [14].The Minister's personal knowledge
Ratio Decidendi
Legal Principle Established
Established by:
KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ