MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS
Uelese v Minister for Immigration and Border Protection
[2015] HCA 15
6 May 2015
S277/2014
ORDER
1.Appeal allowed.
2.Set aside paragraphs 2 and 3 of the order of the Full Court of the Federal Court of Australia made on 8 August 2013 and, in their place, order that:
(a)the appeal is allowed;
(b)the order of Buchanan J made on 18 April 2013 is set aside and, in its place, it is ordered that:
(i) a writ of certiorari issue directed to the second respondent, quashing its decision made on 14 November 2012;
(ii)a writ of prohibition issue directed to the first respondent, prohibiting him from giving effect to the decision of the second respondent made on 14 November 2012;
(iii)a writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for review according to law; and
(iv)the first respondent pay the applicant's costs; and
(c)the first respondent pay the appellant's costs of the appeal.
3.The first respondent is to pay the appellant's costs of the appeal to this Court.
On appeal from the Federal Court of Australia
Representation
N J Owens with D P Hume for the appellant (instructed by Marque Lawyers)
G T Johnson SC with P M Knowles for the first respondent (instructed by Australian Government Solicitor)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Uelese v Minister for Immigration and Border Protection
Migration and citizenship – Visa cancellation – Character test – Administrative Appeals Tribunal – Migration Act1958 (Cth), s 500(6H) precludes Tribunal from having regard to information presented orally in support of a person's case unless provided in written statement to Minister two days before Tribunal holds a hearing – Information arose regarding children during cross‑examination of witness called on behalf of appellant – Tribunal required to consider best interests of minor children in Australia – Whether Tribunal erred in its application of s 500(6H) by not considering that information – Relevance of whether information could reasonably have been anticipated by appellant.
Migration and citizenship – Visa cancellation – Character test – Administrative Appeals Tribunal – Whether Migration Act1958 (Cth), s 500(6H) precludes Tribunal from adjourning hearing so that notice requirements may be met – Whether day on which Tribunal "holds a hearing" includes day on which hearing resumes.
Words and phrases – "holds a hearing", "information presented orally in support of the person's case".
FRENCH CJ, KIEFEL, BELL AND KEANE JJ. A delegate of the Minister for Immigration and Border Protection ("the Minister") cancelled the appellant's visa on character grounds under s 501(2) of…
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
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Case
[2015] HCA 15
Decision Date
CaseChat Overview and Summary
The appeal concerned the interpretation and application of section 500(6H) of the *Migration Act 1958* (Cth) by the Administrative Appeals Tribunal (AAT). The appellant, Mr Uelese, sought to have his visa cancellation decision reviewed. The dispute centred on whether the AAT erred by refusing to consider information regarding the appellant's two youngest children, which arose during the cross-examination of a witness called on his behalf. The High Court of Australia was required to determine the scope of section 500(6H), which generally precludes the Tribunal from considering information presented orally in support of a person's case unless it was provided in writing to the Minister at least two business days before the hearing.
The legal issues before the High Court were twofold. Firstly, whether "information presented orally in support of the person's case" encompassed responsive answers given by a witness under cross-examination by counsel for the Minister or questioning from the AAT. Secondly, the Court had to determine whether the phrase "holds a hearing" in section 500(6H) referred only to the initial day of a hearing or included a day on which a hearing resumed after an adjournment. These questions were critical to whether the AAT was entitled to disregard the oral evidence concerning the appellant's children, which was relevant to the best interests of minor children in Australia, a factor the AAT was required to consider.
The High Court allowed the appeal, finding that the AAT had erred in its application of section 500(6H). The Court reasoned that information elicited during cross-examination, even if responsive, did not fall within the prohibition of section 500(6H) as it was not information the appellant was seeking to adduce in chief. Furthermore, the Court held that the term "holds a hearing" could include a day on which a hearing resumes after an adjournment, meaning the notice requirements of section 500(6H) could potentially be met by providing written information at least two business days before a resumed hearing. The Court concluded that the AAT's refusal to consider the oral evidence concerning the children meant it failed to take into account a relevant consideration, and therefore, its decision was vitiated. The orders of the Federal Court were set aside, and the matter was remitted to the AAT for redetermination according to law.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside paragraphs 2 and 3 of the order of the Full Court of the Federal Court of Australia made on 8 August 2013 and, in their place, order that:
(a) the appeal is allowed;
(b) the order of Buchanan J made on 18 April 2013 is set aside and, in its place, it is ordered that:
(i) a writ of certiorari issue directed to the second respondent, quashing its decision made on 14 November 2012;
(ii) a writ of prohibition issue directed to the first respondent, prohibiting him from giving effect to the decision of the second respondent made on 14 November 2012;
(iii) a writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for review according to law; and
(iv) the first respondent pay the applicant's costs; and
(c) the first respondent pay the appellant's costs of the appeal.
3. The first respondent is to pay the appellant's costs of the appeal to this Court.
Background
Background to the litigation
The two questions for decision in this appeal are: (a)whether "information presented orally in support of the person's case" includes a responsive answer given by a witness under cross-examination by counsel for the Minister or under questioning from the AAT; and(b)whether "a hearing" is a reference only to the first day of a hearing or includes a day on which a final hearing resumes after being adjourned part-heard.The facts The appellant was born in Samoa in 1984 and moved with his family to New Zealand at the age of three. He is a citizen of New Zealand but at the age of 14 he came to Australia and he has remained here ever since. Although he has not become an Australian citizen, he was granted a Class TY Subclass 444 Special Category (Temporary) visa which entitled him to stay in Australia so long as he remained a New Zealand citizen. Beginning at the age of 15, he acquired a history of convictions for criminal offences, including convictions for violent offences for which he was sentenced to imprisonment. The nature of the offences and the terms of imprisonment to which he was sentenced were such that he ceased to satisfy the "character test" set out in s 501(6) of the Migration Act[43]. That gave the first respondent ("the Minister") a discretion to cancel the visa[44]. [43]Section 501(6) of the Migration Act relevantly provides that: "For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7))".In turn, s 501(7) relevantly provides that:"For the purposes of the character test, a person has a substantial criminal record if:...(c)the person has been sentenced to a term of imprisonment of 12 months or more".[44]Migration Act, s 501(2). On 10 May 2012, during his last term of imprisonment, the appellant was informed that the Minister was considering cancelling his visa and, on 6 September 2012, when the term of imprisonment concluded, he was notified that the Minister had cancelled the visa. The delegate of the Minister who made the decision was required to take into account a direction made under s 499 of the Migration Act – "Direction No 55 – Visa refusal and cancellation under s 501" ("Direction 55") – concerning matters relevant to the cancellation of a visa under s 501. Direction 55 includes the following: "6.3 Principles(1)Australia has a sovereign right to determine whether non‑citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non‑citizens in the expectation that they are, and have been, law‑abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community....(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen's visa should be cancelled, or their visa application refused....8.Taking the relevant considerations into account(1)Decision‑makers must take into account the primary and other considerations relevant to the individual case ...(4) Primary considerations should generally be given greater weight than the other considerations....9.Primary considerations – visa holders(1)In deciding whether to cancel a person's visa, the following are primary considerations: (a) Protection of the Australian community from criminal or other serious conduct; (b)The strength, duration and nature of the person's ties to Australia;(c)The best interests of minor children in Australia; (d)Whether Australia has international non-refoulement obligations to the person....9.3Best interests of minor children in Australia affected by the decision(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. (4)In considering the best interests of the child, the following factors must be considered where relevant:(a) The nature and duration of the relationship between the child and the person ... (b)The extent to which the person is likely to play a positive parental role in the future ...(c)The impact of the person's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;(d)The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;(e)Whether there are other persons who already fulfil a parental role in relation to the child;(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);(g)Evidence that the person has abused or neglected the child in any way ...(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct."
Evidence
Evidence Before The Court
So to conclude is not to overlook the 84-day time limit imposed by s 500(6L)(c). As counsel for the appellant submitted, there is no necessary inconsistency between that time limit and the possibility that, after a hearing has been adjourned, an applicant might give notice at least two business days before the day on which the hearing is to resume of material in support of the applicant's case which the applicant proposes to adduce in chief at the resumed hearing. The 84-day time limit is immutable and so may prove a powerful consideration in the AAT's determination whether to adjourn a hearing to enable an applicant to give notice of new or additional material which he or she seeks to adduce in chief in support of his or her case. But, properly understood, it goes no further than that. Consequences of failing to take into account the subject evidence It follows from what has been said that the AAT's refusal to take into account Ms Fatai's evidence concerning the two other children was to exclude a relevant material consideration. The AAT was empowered by s 33(1)(c) of the AAT Act to "inform itself on any matter in such manner as it thinks appropriate". To the extent the AAT considered that the evidence elicited from Ms Fatai was insufficient to make a determination as to the best interests of the two children, s 500(6H), properly construed, presented no barrier to the AAT taking the necessary steps to ascertain sufficient information for it to form a view. Counsel for the Minister contended that it was apparent from the following passage from the AAT's reasons earlier set out[72] that, because of the paucity of evidence, any failure by the AAT to take account of the evidence made no difference:"Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross-examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children."[72]The full passage is excerpted at [90] of these reasons. That submission should be rejected. Read in isolation, the passage of the reasons relied upon is equivocal. Read in context, it appears that what the AAT intended to convey was that, despite the limited written evidence about the children that was before the AAT, in the absence of Ms Fatai's oral evidence concerning the children the AAT was unable to determine whether or not visa cancellation would be in their best interests. So, far from demonstrating that Ms Fatai's evidence could not have made a difference to the AAT's decision, the cited passage read in context implies that her evidence, had it not been excluded, could well have proved critical or, at the least, could have made a difference.Conclusion For these reasons, I agree with the orders proposed in the joint judgment.
Decision
Reasons for decision
FRENCH CJ, KIEFEL, BELL AND KEANE JJ
NETTLE J
It was, and remains, unclear why the appellant did not acknowledge the existence of his two youngest children, or seek to make their relationship with him part of his case. The Tribunal merely noted that the appellant's legal representation had been arranged "at short notice"[8]; but before the Federal Court, at first instance[9] and on appeal[10], it was said that the appellant adopted this course on the basis of legal advice.[8]Re Uelese and Minister for Immigration and Citizenship [2012] AATA 793 at [7].[9]Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 13 at 18 [15].[10]Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534 at 545 [37].The decision of the Tribunal The Tribunal regarded s 500(6H) of the Act as precluding consideration by it of the position of the appellant's two youngest children. In this Court, the Minister sought to argue that the Tribunal did take into account the information concerning those children. Given this contention by the Minister, it is necessary to refer to the detail of the Tribunal's reasons on this point. The Tribunal summarised[11] its view of the effect of s 500(6H) of the Act as follows:"The effect of s 500(6H) of the [Act], which was acknowledged by Mr Uelese's representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements provided to the Minister at least two business days before the hearing." [11]Re Uelese and Minister for Immigration and Citizenship [2012] AATA 793 at [4]. The Tribunal went on to conclude[12]:"As already stated, Mr Uelese has been involved in an on and off relationship with Ms Fatai for approximately 12 years, and they have three children aged eleven, eight and six. No evidence was able to be led regarding a further two children of another woman, aged approximately five and four whose names appeared as visitors in a Department of Corrective Services Inmate Profile Document because there was no information relating to them contained in a written statement provided to the Minister at least two business days before the hearing as required by section 500(6H) of the Act. I cannot take any consideration of their situation into account in coming to a decision in this matter, although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home. Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross‑examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children." (emphasis in original)[12]Re Uelese and Minister for Immigration and Citizenship [2012] AATA 793 at [64]. It can be seen from the Tribunal's reasons that the Tribunal did not take account of the information concerning the appellant's two youngest children. The Minister's contention in this respect is untenable. The Tribunal could not have made its position any clearer than by the explicit statement: "I cannot take any consideration of their situation into account". The Federal Court
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KIEFEL, BELL AND KEANE JJ,
NETTLE J