Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41

HIGH COURT OF AUSTRALIA

KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

MINISTER FOR IMMIGRATION, CITIZENSHIP,

MIGRANT SERVICES AND MULTICULTURAL

AFFAIRS APPELLANT

AND

ALEX VIANE RESPONDENT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane

[2021] HCA 41

Date of Hearing: 9 September 2021

Date of Judgment: 8 December 2021

S34/2021

ORDER

1. Appeal allowed.

2. Set aside orders 4 and 5 of the orders made by the Full Court of the Federal Court of Australia on 24 August 2020 and, in their place, order that:

(a) order 2 of the orders made by the Federal Court of Australia on 20 February 2020 be set aside and, in its place, order that the respondent pay the applicant's costs of the proceeding as agreed or taxed; and

(b) the appeal be otherwise dismissed.

3. The appellant pay the reasonable costs of the respondent in this Court.

On appeal from the Federal Court of Australia

Representation

G R Kennett SC with R S Francois for the appellant (instructed by Sparke Helmore Lawyers)

C L Lenehan SC with J D Donnelly and K P Tang for the respondent (instructed by Scott Calnan Lawyer)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane

Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where respondent's temporary visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where respondent made representations seeking revocation of cancellation decision under s 501CA(4) – Where representations included bare assertions about conditions in American Samoa – Where Minister decided there was not "another reason" to revoke cancellation decision under s 501CA(4)(b)(ii) – Where Minister made findings about conditions in American Samoa and Samoa – Where it was common ground no evidentiary material to support Minister's findings – Whether Minister always obliged to make findings of fact in response to representations received – Whether Minister's findings relating to hardship respondent's family would face if visa cancellation decision not revoked were open – Whether Minister entitled to rely on personal or specialised knowledge, or commonly accepted knowledge, in making findings about conditions in American Samoa and Samoa – Whether as matter of procedural fairness Minister required to disclose personal or specialised knowledge and invite submissions from applicant about that knowledge before making findings.