Tag Archives: unreasonableness

The obligation to ‘have regard to’ an applicant’s wish to obtain further evidence

Section 426 of the Migration Act requires the Tribunal to ‘have regard to’ an applicant’s request to obtain further evidence from, or call, a particular witness. The Tribunal is not required to in fact do so.

However, the authorities are clear that the question of whether the Tribunal should is a discretion that must (therefore) be exercised reasonably.

In addition, the Tribunal cannot ‘merely go through the motions’–there must be a genuine consideration of whether to exercise the discretion: CBZH v Minister for Immigration and Border Protection [2014] FCA 1023.

Also, in BOL15 v Minister for Immigration and Border Protection [2016] FCCA 1994, Lucev J said:

Whether or not calling the Applicant’s Proposed Witness may have resulted in evidence being given which did not assist the applicant is not to the point, rather, the Court cannot preclude the possibility that such evidence might have assisted the applicant to establish his claims

Requirements for ‘no evidence’

In the context of migration decisions (but necessarily applicable to decision-making generally), a successful no-evidence submission requires:

  • demonstration that there was no evidence at all; and
  • the impugned fact being a jurisdictional fact.

Perry J referred to this in Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54]:

It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: ibid. … Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]). As Madgwick J held in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (SZAPC) at [57] in summarising the effect of the High Court authorities: “[a] “no evidence” attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact” (quoting Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [36]).

There must literally be no evidence at all.  ‘Flimsy’ evidence is sufficient for the finding to survive: Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54].

The need for the finding (alleged to be supported by no evidence) to be a jurisdictional fact was discussed by Bromberg J in Buchwald v Minister for Immigration and Border Protection [2016] FCA 101, [32]-[40].  In particular, his Honour referred at [40] to French CJ’s observations in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]:

The term “jurisdictional fact“ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements“. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

The no-evidence ground often also factually overlaps with the illogicality ground: see SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 [55]-[70].  There may also be overlap with unreasonableness: see eg ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 , [101].