Australian Immigration Daily News

Under what circumstances can the Administrative Appeals Tribunal refuse to consider information that comes out during cross-examination of a witness at a hearing involving the cancellation of a visa on character grounds?

This was the question that the High Court had to decide in the recent case of Uelese v Minister for Immigration and Border Protection (2015) HCA 2015 (6 May 2015).  In this case, the Court was called upon to determine how section 500(6H) of the Migration Act should be applied.  By its plain language, this section provides that the AAT “must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing”.

The wording of this section of the Act may appear to be clear enough, but what if there is a “wrinkle”, or unexpected legal complexity?  For example, if the information in question is brought forward during the cross-examination of a witness that is being conducted by a representative of the Minister, or by the Tribunal itself, is the Tribunal still prevented from considering the information when deciding whether to uphold the cancellation of the visa?

These issues may sound like intricate legal technicalities, but as RMAs will understand all too well, such technicalities can wind up having genuine “real-world” impacts on a person’s visa entitlements, and consequently upon the trajectory of their future life.  So it proved to be in the Uelese case, where the High Court’s decision had the effect of postponing, at least temporarily, the visa holder’s deportation from Australia.

The underlying circumstances of the case were that the visa holder was a citizen of New Zealand who had been born in Samoa, and who had lived in Australia since the age of 14. He had numerous relatives in Australia, Including his parents, his partner, several children and other extended family members. He also had a history of criminal offences. In December 20111 he was sentenced to a term of imprisonment of 36 months for “recklessly causing grievous bodily injury in company”. Shortly before this prison term ended (in September 2012), the Department cancelled his visa and he was placed in immigration detention.

(Although the issue is not discussed in the High Court’s judgment, it can be presumed that the visa holder was still being held in immigration detention when the judgment was handed down (in May 2015). While not directly related to the subject of this article, this apparent circumstance raises an issue which I suggest is worthy of consideration and debate: Should people who are the subject of visa cancellation decisions be held in immigration detention throughout the period that legal proceedings involving an appeal from a visa cancellation decision are pending?

It would appear that it is very possible for a person to be held in immigration detention for a period of time that may be even greater than their original prison sentence. Obviously, a person who is in immigration detention has had their liberty deprived as effectively as if they were in an actual “prison” – so being in immigration detention could be seen as effectively having one’s term of imprisonment extended “extra-judicially” and perhaps “indefinitely” (given that legal proceedings involving a challenge to a visa cancellation can extend over a period of months or years).

Of course, if a visa cancellation decision is overturned, the period of freedom that the person has lost while being held in immigration detention can never be restored.

So I suggest that there is a real question for the Australian community to consider about whether people should really be held in immigration detention while these cases are awaiting decision before the courts.

What are your thoughts about this??

Returning to the substance of the case:  the question before the High Court was whether the AAT had committed jurisdictional error by refusing to consider certain evidence that was brought out at the AAT hearing during the cross-examination of a woman with whom the visa holder had been involved. 

As the High Court noted in its judgment, one of the issues that the AAT is required to consider in deciding whether to uphold a visa cancellation is the impact of the cancellation (and consequential deportation of the visa holder) on the “best interests” of the visa holder’s children). (This is a matter that must be taken into account pursuant to “Direction No. 55 – Visa refusal and cancellation).

The visa holder had been in an “on and off” relationship with his partner over a period of 12 years. During a period of separation from his partner, he had two additional children with another woman. The evidence that was prepared on behalf of the applicant in advance of the AAT hearing did not make reference to the interests of these children as a basis for overturning the visa cancellation, and did not even disclose the existence of these children.  It was only when this woman was being questioned on cross examination that the fact that the visa holder had these children emerged.

Since evidence concerning these two additional children had not been provided in writing to the Minister two days in advance of the hearing by the visa holder, the AAT concluded that it was prohibited by section 500(6H) from taking the “best interests” of these children into account when deciding whether to uphold the visa cancellation decision. Both the Federal Court and the Full Court of the Federal Court concurred with this interpretation of section 500(6H).

However, on appeal, the High Court came to a different conclusion.

The High Court found that evidence that was elicited by the Tribunal or during cross-examination by a legal representative of the Minister could not properly be characterized as being “information presented orally in support of the (visa holder’s) case”.  Consequently, the High Court concluded that the AAT had committed jurisdictional error by finding that it could not give any consideration at all to the situation of the children whose existence had been revealed in the course of the hearing (in other words that it could not have regard to the “best interests” of these children). 

It was the High Court’s opinion that the Act made the assessment of the impact of the visa cancellation on the best interests of the children a “primary consideration”. Thus, the High Court ruled that by failing to have regard to a relevant consideration, the AAT had fallen into jurisdictional error. 

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837