Uelese v Minister for Immigration and Border Protection

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.