Uelese v Minister for Immigration and Border Protection [2016] FCA 348
File number:
NSD 1305 of 2015
Judges:
ROBERTSON J
Date of judgment:
12 April 2016
Catchwords:
ADMINISTRATIVE LAW – application for judicial review of decision of the Administrative Appeals Tribunal – migration – cancellation of visa on character grounds – whether Direction no. 65 made by the Minister under s 499 of the Migration Act 1958 (Cth) is a legislative instrument within the Legislation Act 2003 (Cth) – whether the Administrative Appeals Tribunal made a jurisdictional error in making certain findings where “no evidence”
MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal – cancellation of visa on character grounds – whether Direction no. 65 made by the Minister under s 499 of the Migration Act 1958 (Cth) is a legislative instrument within the Legislation Act 2003 (Cth) – whether the Administrative Appeals Tribunal made a jurisdictional error in making certain findings where “no evidence”
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
71
Counsel for the Applicant:
Mr N Owens with Ms A Rose
Solicitor for the Applicant:
Marque Lawyers
Counsel for the First Respondent:
Mr PM Knowles
Solicitor for the First Respondent:
Australian Government Solicitor
Counsel for the Second Respondent:
The Second Respondent submitted save as to costs
ORDERS
NSD 1305 of 2015
BETWEEN:
PETER UELESE
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 Uelese v Minister for Immigration and Border Protection
Sign in free to access the full text
Details
AGLC
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Case
[2016] FCA 348
Decision Date
CaseChat Overview and Summary
The applicant, Mr Uelese, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the decision of the Minister for Immigration and Border Protection to cancel his visa on character grounds. The matter was remitted to the AAT by the High Court following an initial appeal by Mr Uelese, Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 319 ALR 181. The primary legal issues before the AAT were whether Direction No. 65, made by the Minister under s 499 of the Migration Act 1958 (Cth), is a legislative instrument within the meaning of the Legislation Act 2003 (Cth) and whether the AAT made a jurisdictional error in making certain findings where there was no evidence.
The AAT found that it was open to it to make certain findings based on matters of general knowledge, even in the absence of evidence. It concluded that the AAT's decision was not vitiated by jurisdictional error, even if the evidence was lacking. The AAT found that the Minister was entitled to make Direction No. 65 and that the AAT was bound to comply with it. The AAT also found that the lack of evidence in relation to the availability of welfare benefits in New Zealand did not result in a jurisdictional error, as the availability of benefits was not critical to the decision.
The AAT concluded that there was no jurisdictional error in its decision and dismissed the application for judicial review. The Federal Court followed the AAT's reasoning and dismissed the application, with costs. The Court found that the AAT did not make a jurisdictional error in making certain findings in the absence of evidence and that Direction No. 65 was a valid legislative instrument.
Orders
Orders of the court
1. The application be dismissed, with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Paragraph 9.1.2 has as its heading “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. In considering the risk to the Australian community, paragraph 9.1.2(2) states decision-makers must have regard to, cumulatively: (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).The Tribunal’s reasons for decision The Tribunal first set out the background. It found that Mr Uelese was born in Samoa in 1984. Mr Uelese is a citizen of that country. When he was three years old he moved to New Zealand with his family. In addition to his Samoan citizenship he is a citizen of New Zealand. He lived in New Zealand until he moved to Australia with his family in 1998 when he was 14 years old. He is the eldest of seven siblings. Mr Uelese attended school in New Zealand and Australia. He left school after completing year 10 and commenced employment. From that time until he was sentenced to imprisonment in October 2010 he worked in several trades. Since his arrival in Australia, Mr Uelese has resided continuously in Australia. Until 3 September 2012 he held a Class TY Subclass 444 Special Category (Temporary) visa. Mr Uelese has committed a number of criminal offences. His first offence was in October 1999 and his last in December 2011. His first conviction was in October 2003. Two convictions resulted in his serving terms of imprisonment. He was released from the second term in September 2012 and immediately taken into immigration detention. He has been in detention ever since. In September 2012, the Minister cancelled Mr Uelese’s visa as he suspected that he did not pass the character test set out in s 501 of the Migration Act, and as Mr Uelese did not satisfy him that he did pass the character test. Mr Uelese applied to the Tribunal to review the Minister’s decision. His application was initially heard in 2012 and the Minister’s decision was affirmed. Following the hearing of an appeal, Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 319 ALR 181, the High Court of Australia remitted the matter to the Tribunal to be re-heard. This took place on 2 and 3 September 2015. The Tribunal found that the following offences had been committed by Mr Uelese. Relevant to ground 1, at [15] the Tribunal said: The power of the Tribunal to review the decision to cancel Mr Uelese’s visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014.
Ratio Decidendi
Legal Principle Established
In relation to the support available in New Zealand, the Minister submitted that the Tribunal was entitled to inform itself by reference to matters of general knowledge even in circumstances where a Court would not be entitled to take the matters on judicial notice. Given the cultural, historical and political similarities between the two countries, it was open to the Tribunal to find that the system of government benefits in New Zealand is similar to that in Australia. In any event, the submission went, even if there was no evidence to support the Tribunal’s finding, no jurisdictional error would be established. The Tribunal’s jurisdiction did not depend on making a finding in respect of the availability of benefits in New Zealand. The “no evidence” ground of review, therefore, was not available as it applied only to factual findings that were a pre-condition to the exercise of jurisdiction: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [39]. In addition, the Minister submitted, the Tribunal’s factual finding in this case was not critical to its decision. The applicant conceded that the availability of welfare benefits formed no part of its case to the Tribunal. The Tribunal also recognised the possibility that the applicant may live in Samoa rather than New Zealand. An error arising because there was no evidence to support a factual finding that was not critical to the decision-maker’s conclusion was not, the Minister submitted, an error that went to jurisdiction.ConsiderationGround 1 In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; 131 FCR 300 at [592]-[593], in considering whether a particular decision was of an administrative or of a legislative character, Tamberlin J said:In RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185, the Full Court pointed out that there is no simple rule for determining whether a decision is of an administrative or legislative character. The court proceeded to consider some of the matters discussed in the authorities and had regard to those considerations. The court considered the characterisation question taking a cumulative approach to various considerations. The particular matters which the court took into account included the following:•Whether the decisions determined rules of general application or whether there was an application of rules to particular cases.•Whether there was Parliamentary control of the decision.•Whether there was public notification of the making of the regulation.•Whether there has been public consultation and the extent of any such consultation.•Whether there were broad policy considerations imposed.•Whether the regulations could be varied.•Whether there was power of executive variation or control.•Whether provision exists for merits review.•Binding effect.The court considered that it was necessary to take into account all of these considerations and no single one was determinative. Their Honours came to the conclusion in the context of that case, the determination of a licence area plan under the Broadcasting Services Act 1992 (Cth) was a decision of a legislative and not of an administrative character.