WACB v MIMIA - [2004] HCATrans 89

[2004] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P92 of 2003

B e t w e e n -
WACB
Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 APRIL 2004, AT 10.04 AM

MR J.L. CAMERON: May it please the Court, I appear for the appellant. (instructed by Freehills)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MR P.R. MACLIVER, for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Mr Cameron. Mr Cameron, what is the print of the Act that we need to work from in this case?

MR CAMERON: Well, I think you need to work from two prints. I am using the Reprint No 8 in respect of section 430 and the new sections which changed after the decision in Long, and the relevant reprint in relation to the decision for Long is Reprint No 7.

GLEESON CJ: Thank you.

GUMMOW J: I cannot see how it could be Reprint No 8. That includes Act 157 of 2001, does it not?

MR CAMERON: I believe it does, your Honour. That includes the new sections upon which we rely, the new sections being 430A to 430D.

GUMMOW J: It also includes section 474.

MR CAMERON: It also includes section 474.

GUMMOW J: Which does not apply.

MR CAMERON: Which does not apply in this case.

GUMMOW J: It only applies in respect of decisions after 27 September.

MR CAMERON: That is correct, yes.

GUMMOW J: And this was before that.

MR CAMERON: That is right.

GLEESON CJ: So neither Reprint No 7 nor Reprint No 8 is a totally reliable representation of the legislation with which we are concerned?

MR CAMERON: No, Reprint No 7 applied at the time that the Long decision was heard. Reprint No 8 sets out the sections that applied at the time that this matter was heard.

GLEESON CJ: And some other sections as well.

MR CAMERON: And some other sections as well, yes. Now, your Honours will have before you also a notice of motion with an annexed affidavit, which seeks to add an additional ground to the grounds on which special leave was granted.

GLEESON CJ: What is your attitude to that, Mr Solicitor?

MR BENNETT: Ambivalent, your Honour. We have no opposition to the notice of motion itself, but we reserve the right to make the submission that at least in part, the point is one not taken below on which evidence might have been called, and that therefore, to that extent, the point should not be entertained.

GLEESON CJ: We will make the order sought by Mr Cameron but on the understanding that you will reserve that point.

MR BENNETT: If the Court pleases.

GLEESON…

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

Case: [2004] HCATrans 89
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by WACB against a decision of the Full Federal Court concerning the interpretation of the *Migration Act 1958* (Cth). The dispute centred on whether a particular visa cancellation decision was valid. MIMIA (Minister for Immigration and Multicultural and Indigenous Affairs) was the respondent.

The primary legal issue before the High Court was whether the Minister had properly exercised the power to cancel the appellant's visa under s 501(2) of the *Migration Act 1958* (Cth), specifically in relation to the appellant's character. The court also had to determine whether the delegate's decision to cancel the visa was vitiated by a failure to consider relevant considerations or by taking into account irrelevant considerations.

The High Court reasoned that the Minister's power under s 501(2) required a satisfaction that the person did not pass the character test. This satisfaction must be based on information that is relevant to the character test. The court found that the delegate's decision had been influenced by a misunderstanding of the appellant's criminal record and a failure to give sufficient weight to mitigating factors presented by the appellant. Consequently, the delegate's decision was found to be affected by an error of law, as it failed to properly consider relevant material and was based on an erroneous view of the facts.

The High Court allowed the appeal, setting aside the decision of the Full Federal Court and remitting the matter to the Federal Court for determination according to law.

Orders