The role of evidence, and providing evidence in support of submissions, is crucial in migration-related processes, including visa applications and cancellations.
In this case, the Minister refused to revoke the mandatory cancellation of the Appellant’s visa under s 501CA of the Migration Act. One of the central bases on which the Appellant had sought revocation was because he would not have adequate access to treatment for his serious and complex health conditions in his country of citizenship.
However, the Minister was not satisfied that the Appellant would lack sufficient financial support (whether from family or accrued superannuation) which would enable the Appellant to access adequate health care. The Full Court of the Federal Court of Australia found that, having asserted that he would not have access to adequate health care in his country of citizenship, it was for the Appellant to produce evidence capable of satisfying the Minister of the truth of that assertion. In the absence of evidence supporting the Appellant’s submission it was open to the Minister not to be satisfied that the Appellant would not have access to adequate healthcare.
The Appellant was a non-citizen who had ordinarily resided in Australia since 1987. In 2015 the Appellant was convicted of an extremely serious criminal offence and sentenced to a significant term of imprisonment. In 2019, the Appellant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act on the basis that the Appellant had been sentenced to a term of imprisonment of 12 months or more and was currently imprisoned. See our article here, about the “character test”.
The Appellant sought that the cancellation of his visa be revoked under s 501CA(4)(b)(ii) of the Migration Act on the basis that there was ‘another reason’ why his visa should be reinstated. One prominent basis on which the Appellant argued that there was ‘another reason’ for revocation was because he had been diagnosed with serious and complex health issues and would not have access to adequate healthcare for those conditions. Specifically, the Appellant submitted, ‘[his] health needs would not be adequately addressed in Fiji because he would not have the financial means to access Fiji’s limited diabetic and kidney disease treatments.’
The Minister determined not to revoke the cancellation of the Appellant’s visa. When dealing with the Appellant’s submissions regarding his access to health care in his country of citizenship, the Minister stated that it was not clear why the Appellant’s family in Australia could not provide him with at least some financial assistance or why the Appellant could not access his accrued superannuation entitlement to help pay for treatment.
Ground of Review and Appeal
The Appellant sought judicial review of the Minister’s non-revocation decision. A central ground of review was that the Minister had denied the Appellant procedural fairness by failing to give the Appellant the opportunity to respond to the suggestion that the Appellant’s family might be able to provide financial assistance or that he might be able to draw on his superannuation balance.
A single Justice of the Federal Court of Australia dismissed the Appellant’s judicial review application. He then appealed to the Full Court of the Federal Court of Australia.
Full Court’s Decision
The Full Court of the Federal Court of Australia dismissed the Appellant’s appeal. In doing so, the Full Court cited the observation of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 that, ‘although it is not useful to speak in terms of onus proof in administrative decision-making, it is for the applicant… to establish the claims that are made.’
The Full Court then noted that it was the Appellant who had contended that he would be unable to pay for medical treatment in his country of citizenship and that it was for the Appellant to provide sufficient material to allow the Minister to be satisfied that he could not in fact afford medical treatment. The Minister’s finding was not that the Appellant and/or his family could pay for medical treatment, but that he was not satisfied that the Appellant and/or his family could not pay as alleged by the Appellant.
The consequence of this is that procedural fairness does not require a decision-maker to give notice to a non-citizen that they have provided insufficient evidence to support a factual contention they have advanced in submissions.
What does this case illustrate?
The Full Court’s decision in Tikomaimaleya reaffirms the need for non-citizens and their representatives to be mindful of the way they advance written submissions and for factual contentions advanced in those submissions to be supported by adequate evidentiary material. Put shortly, if you advance a factual contention in support of a visa application or against visa cancellation, a decision-maker is free to be unpersuaded of the truth of that contention unless sufficient evidentiary material supporting the contention is provided.
Further, if a decision-maker is unpersuaded of a factual assertion made by a non-citizen they are not required to provide notice of their lack of persuasion before making a decision. This means that non-citizens and their representatives should take care to ensure that any factual assertion, particularly in relation to any issue that could be determinative, is supported by sufficient evidence.
Hannan Tew – About Us
At Hannan Tew Lawyers we have a dedicated judicial review team that is experienced in making sure decisions made and actions taken by the Minister for Immigration, an immigration officer or the Administrative Appeals Tribunal are valid and lawful.
We offer a free, 20 minute judicial review consultation with our Special Counsel Joel McComber, who has extensive experience acting in judicial review applications of migration decisions before the Circuit Court, Federal Court and even High Court of Australia. At this consultation Joel will provide you with advice about the limitation period applying to your case, the Court that has the power to hear and determine your case, and the process of applying for judicial review.
Unfortunately we cannot provide you with advice regarding potential grounds of review or your prospects of success at a free initial consultation, but we do offer an assessment of judicial review prospects for a fixed fee of $2,000 (GST exclusive).