Uelese v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel,Bell,Keane JJ.,Nettle J.
• Judgment Date: 06 May 2015
• Neutral Citation: [2015] HCA 15
• Docket Number: S277/2014
• Court: High Court
• Date: 06 May 2015

[2015] HCA 15

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Bell, Keane and Nettle JJ

S277/2014

Peter Uelese

Appellant

and

Minister for Immigration and Border Protection & Anor

Respondents

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

Migration Act 1958 (Cth), ss 499, 500(6H), 500(6L), 501.

Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 40(1)(c).

Uelese v Minister for Immigration and Border Protection

Migration and citizenship — Visa cancellation — Character test — Administrative Appeals Tribunal — Migration Act 1958 (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 Act 1958 (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’.

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.

1 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 the Migration Act 1958 (Cth) (‘the Act’). The delegate was obliged, by directions given pursuant to s 499 of the Act, to have regard to the best interests of any minor children of the appellant who would be affected by the decision. The delegate exercised his discretion on the understanding that the appellant is the father of three children.

2 During the hearing of the appellant's application for review of the delegate's decision before the Administrative Appeals Tribunal (‘the Tribunal’), it became apparent that the appellant is also the father of two other, younger children in Australia. This information had not previously formed part of the appellant's case; it was adduced in the course of the cross-examination of a witness called on behalf of the appellant.

3 Section 500(6H) of the Act provides that the Tribunal must not have regard to any information presented orally in support of an application for review unless it has been provided in a written statement to the Minister at least two days before the hearing. The Tribunal proceeded to determine the appellant's application on the footing that s 500(6H) of the Act precluded consideration by it of the interests of the appellant's two youngest children.

4 The Tribunal affirmed the delegate's decision. The appellant appealed unsuccessfully to the Federal Court of Australia, and then to the Full Court of the Federal Court of Australia. The appellant appeals to this Court, contending that s 500(6H) did not, on its proper construction, preclude consideration by the Tribunal of the interests of all his children, and that the Tribunal's failure to consider their interests was a jurisdictional error on its part.

5 The appellant's contention should be accepted and his appeal to this Court allowed. Section 500(6H) does not preclude the consideration of information which is not presented by or on behalf of an applicant for review as part of his or her case. In the present case, the Tribunal, acting upon its erroneous understanding of the effect of s 500(6H) of the Act, truncated the review which it was required to undertake. In particular, the Tribunal failed to have regard to whether the interests of the appellant's two youngest children would be best served by cancelling his visa. As a result, the Tribunal did not conduct the review required by the Act, and consequently acted beyond its jurisdiction 1.

The statutory framework

6 The appellant is a citizen of New Zealand. He was born in Samoa and moved to New Zealand with his family when he was three years old. He moved to Australia in 1998 at age 14, but is not an Australian citizen. He was granted a Class TY Subclass 444 Special Category (Temporary) visa, which allows him to remain in Australia indefinitely while he is a citizen of New Zealand. The appellant's parents, partner, children and extended family live in Australia.

7 Section 501 of the Act provides that the Minister has a discretion to refuse or cancel a visa on character grounds. In particular, s 501(2) of the Act provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the ‘character test’ and the person does not satisfy the Minister that he or she passes the character test.

8 The appellant failed to satisfy the Minister that he passed the character test. Pursuant to s 501(6)(a), a person fails to satisfy the character test if he or she has a ‘substantial criminal record’, which is defined in s 501(7)(c) to include a prison sentence of more than 12 months. The appellant has a history of criminal offences. He has served various periods of imprisonment. On 6 December 2011, he was sentenced to 36 months' imprisonment for recklessly causing grievous bodily harm in company. This was the longer of two sentences of over 12 months' duration imposed on the appellant.

9 On 3 September 2012, during the appellant's most recent term of imprisonment, a delegate of the Minister exercised the discretion conferred by s 501(2) to cancel the appellant's visa. On 6 September 2012, when the term of imprisonment ended, the appellant received notice of the cancellation and was placed in immigration detention.

10 Section 500(1)(b) of the Act and s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) together provide that applications may be made to the Tribunal for review of a decision of a delegate of the Minister to cancel a visa under s 501 of the Act. The appellant made an application to the Tribunal for review of the delegate's decision.

11 In the particular circumstances of the present case, a decision-maker under the Act was bound by written directions issued under s 499 of the Act, including Direction No 55 — Visa refusal and cancellation under s 501 (‘Direction 55’), issued on 25 July 2012, when deciding whether a visa should be cancelled under s 501.

12 Direction 55 states by cl 6.3(2) that a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia. Other circumstances are, however, also relevant to a decision in that regard. In particular, cl 6.3(6) states, inter alia, that:

‘the consequences of a visa refusal or cancellation for minor children … in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled’.

13 Clause 7(1)(a) of Direction 55 provides that a decision-maker must take into account the considerations in Pt A or Pt B of Direction 55 ‘where relevant’.

14 Part A of Direction 55 is concerned with the considerations relevant to visa holders. Clause 8(4) provides that ‘primary considerations’ should generally be given greater weight than ‘other considerations’. The first of the primary considerations in Pt A is the protection of the Australian community from criminal or other serious conduct: cl 9(1)(a).

15 Part A also includes cl 9.3(1) and (2), which provide that decision-makers ‘must make a determination about whether cancellation is, or is not, in the best interests of the child’ if the child is under 18 years old at the time of the decision. Clause 9.3(4)(d) makes ‘[t]he likely effect that any separation from the person would have on the child’ a primary consideration.

16 In deciding to cancel the appellant's visa, the Minister's delegate was of the understanding that the appellant had three young children. The delegate accepted that the interests of these children would be best served if the appellant were to remain in Australia, but decided that the appellant's criminal conduct and the need for protection of the Australian community tipped the balance in favour of cancelling the appellant's visa.

17 Of central importance in this matter was s 500(6H) of the Act, which provides that upon an application to the Tribunal for review of a decision made under s 501, the Tribunal:

‘must not have regard to any information presented orally in support of the person's...