The High Court has allowed an appeal against a decision of the Full Federal Court on new information presented to a tribunal. Uelese was born in Samoa, moved to New Zealand when he was three and became a citizen. After moving to Australia in 1998, he was granted a temporary visa entitling him to remain in Australia provided he remained a New Zealand citizen. Following several convictions in Australia, the Minister’s delegate cancelled his visa under s 501 of the Migration Act 1958 (Cth) and he was placed in immigration detention. That section allows the Minister to cancel a visa if the visa holder does not pass the character test, which requires, among other things, that the person does not have a substantial criminal record. The AAT upheld the delegate’s decision, and an appeal to the Federal Court against that ruling was unsuccessful. The FCAFC unanimously dismissed Uelese’s appeal, rejecting his argument that the AAT’s failure to consider the best interests of two of his children was a denial of procedural fairness. Information about the appellant’s two youngest children was not known to the Minister’s delegate, but emerged before the Tribunal during the cross-examination of the appellant’s partner. The FCAFC held that Section 500(6H), which precluded the AAT from considering information presented orally if that information has not been set out in a written statement given to the Minister at least two business days before the hearing, applied here to prevent consideration of the information about the two youngest children.. The FCAFC has interpreted this section in Goldie v Minister for Immigration and Multicultural Affairs  FCA 1318 and most recently in Jagroop v Minister for Immigration and Border Protection  FCAFC 123 (which postdates the FCAFC decision being appealed here).
The High Court unanimously allowed the appeal, holding that s 500(6H) does not prevent the Tribunal from considering information not presented by or on behalf of an applicant, that in this case this led to a failure to consider the best interests of the appellant’s children, and that consequently the Tribunal exceeded its jurisdiction by not conducting its review in accordance with the statutory requirements. The joint judgment (French CJ, Kiefel, Bell and Keane JJ) held that the text, context and legislative purpose of s 500(6H) showed that the Tribunal misunderstood its effect (ff). The text of ‘in support of the appellant’s case’ should not have been read to cover information elicited during cross-examination by the Minister of the appellant’s witness; that construction ‘distinctly … strain[ed]’ the language of the section (at ), and would lead to irrationality or unjustness (at ). The joint judgment also rejected the Minister’s argument that the Court should take a broader view of the section that covered information that might reasonably be expected to support the appellant’s case: that interpretation was not suggested by the text of s 500(6H), was too awkwardly phrased to be implicit in it, and would add uncertainty to the operation of the provision (at , see –). As to context, the joint judgment emphasised that s 500(6H) does not expressly limit the AAT’s powers to conduct a review, particularly the general requirement in s 33 of the Act that requires that it give ‘proper consideration’ to matters before it. Finally, the purpose of the amendment was to expedite the review process and ensure the AAT had access to all relevant information: it is unlikely that responses to questions in cross-examination by the Minister are likely to frustrate this purpose (–). The failure to consider information about all minor children affected by the possible cancellation, as required by s 499 and a direction made under that section, meant the AAT fell into jurisdictional error (see –). Nettle J issued a separate judgment concurring with the orders of the joint judgment.
|High Court Judgment|| HCA 15||6 March 2015|
|High Court Documents||Uelese|
|Full Court Hearing|| HCATrans 48||6 March 2015|
|Special Leave Hearing|| HCATrans 239||17 October 2014|
|Appeal from FCAFC|| FCAFC 86||8 August 2013|
|Appeal to FCA
|| FCA 342||18 April 2013|
|| AATA 793||14 November 2012|