Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane

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.