Mr Mukiza was an African born Canadian citizen with serious mental health issues (as well as a criminal record which resulted in the cancellation of his visa). The controversy in this case was around what was referred to as “ the Rehabilitation Finding” (viz the AAT found that the standard of support for rehabilitation services in Canada was similar to Australia).
At first instance Mukiza succeeded in convincing the court that there was no evidence to support the Rehabilitation Finding even though he did not contest the correctness of the finding. About a week after the primary judge’s decision, the High Court handed down Viane v Minister for Immigration [2021] HCA 41. The Minister appealed and the application of Viane to the facts became the central issue. See Mukiza v Minister for Immigration [2021] FCA 1503
Viane makes it clear that in reaching the standard of satisfaction necessary to find there is another reason to revoke the cancellation decision, it wasn’t always necessary for administrative decision makers to engage in fact finding. The High Court noted:
- There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant; and
- If the Minister makes a finding of fact in the exercise the power conferred by s 501CA(4), the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material. By “no evidence” this has traditionally meant “not a skerrick of evidence”.
The Full Court found that the Rehabilitation Finding wasn’t one that required evidence. In allowing the Minister’s appeal, it noted at [61] [citations removed]: “The onus on Mr Mukiza, assuming he first succeeded in establishing that the finding was one which required evidence but was one in respect of which there was not a skerrick of evidence, is to show that, if the error had not occurred, there is a possibility that the outcome may have been different: …. If that onus is not discharged, the error will not have been shown to be jurisdictional. The discharge of this onus does not necessarily require proof that the impugned finding was wrong. It might, for example, be shown that the outcome might have been different simply because the impugned finding would not have been made.”
Creative commons acknowledgment for the photograph.
