Uelese v Minister for Immigration and Border Protection

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.