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[2021] HCA 41
appellant. Appeal allowed. Orders 4 and 5 of the Full Court of the Federal Court made on 24 August 2020 set aside and, in their place, order that order 2 of the Federal Court made on 20 February 2020 be set...
The High Court has ruled that the Immigration Minister does not need concrete evidence for every comment made when refusing to revoke a visa cancellation. Mr Viane, who came to Australia as a teenager, lost his visa after assaulting his partner. He told the Minister that returning to American Samoa with his young daughter would mean homelessness, no jobs, poor schooling because of language problems and no welfare or healthcare. He gave no proof for any of this. The Minister accepted the move would cause real hardship for the child but decided the danger Mr Viane posed to the Australian community was too great. In his reasons the Minister noted that English is widely spoken in American Samoa and Samoa and that basic services exist even if they are not as good as in Australia. There was no document in the file proving these points. The Full Federal Court said this was a legal mistake because the Minister needed 'some probative material'. The High Court disagreed. All five judges held that a Minister who has spent years dealing with people from Pacific countries builds up personal knowledge that can be used without fresh evidence, especially when the person claiming hardship has offered nothing to back it up. The Court emphasised that Mr Viane never said the Minister's notes about English and services were actually wrong. Because the observations supported rather than undercut the finding of hardship, they could not have harmed Mr Viane's case. The Court also held there was no breach of procedural fairness in not showing the notes to Mr Viane for further comment; he had already been invited to provide evidence and had chosen not to. The appeal was allowed, the Minister's decision restored, and the principle confirmed that the revocation power is broad, that 'another reason' is for the Minister to assess, and that bare assertions can be met with the Minister's accumulated knowledge.
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2,684 words · generated 24/04/2026
The respondent, Alex Viane, was born in American Samoa, spent much of his childhood in the Independent State of Samoa, and holds New Zealand citizenship. He arrived in Australia at the age of 14. In 2007 he was granted a Class TY Subclass 444 Special Category (Temporary) visa. Following convictions that included the serious assault of his domestic partner, the visa was cancelled mandatorily under s 501(3A) of the Migration Act 1958 (Cth). The cancellation was not discretionary once the statutory preconditions were met.
Mr Viane was invited to make representations under s 501CA(3)(b) as to why the cancellation should be revoked. His representations included the assertion that, unless revocation occurred, he, his partner and their young child faced a “real prospect” of removal to American Samoa where they would encounter “substantial impediments”. Specific claims were that the partner and child were unfamiliar with the culture and society, the child had limited understanding of her father’s native language which would impair schooling and life prospects, and that as a family unit they would likely be homeless with no job, no social ties, no welfare and no healthcare. These claims were later softened to assertions that prospects of life would be “limited” with little employment, denial of first-class education, problematic healthcare and no social welfare. Critically, none of these statements was supported by evidence of any kind.
The Minister, having considered the representations, the cancellation decision and the information given under s 501CA(3)(a), was not satisfied that Mr Viane passed the character test and was not satisfied that “another reason” existed under s 501CA(4)(b)(ii) to revoke the cancellation. In the statement of reasons required by s 501G, the Minister addressed the best interests of the child and accepted that relocation to American Samoa or Samoa would significantly impact the child. The Minister observed that the whole family “may, at least initially, experience problems relating to employment, income, housing and lack of family or social support” and that this would negatively affect the child. Two qualifying observations then appeared: first, that “English, however, is widely spoken in American Samoa and Samoa and healthcare, education and some welfare support are available in either location”; second, that services available “may not be of the same standard as those available in Australia, and/or may be more expensive to access, and there may be differences in services between American Samoa and Samoa”, yet the family would have “equal access to welfare, healthcare and educational services as do American Samoans and Samoans in a similar position”.
It was common ground before the courts that no objective evidentiary material capable of supporting those two observations had been before the Minister. The Minister also made unchallenged findings about conditions in New Zealand that were more favourable. Despite the asserted inferiority of services in American Samoa, Mr Viane indicated he would choose that destination if deported. The Minister weighed the accepted hardship and the best interests of the child against the risk of harm to the Australian community if Mr Viane remained. The community risk was assessed as unacceptable and outweighing the factors favouring revocation. No challenge was directed at the weighing exercise itself.
Judicial review in the Federal Court was dismissed at first instance. On appeal the Full Court (Kerr and Charlesworth JJ, Besanko J dissenting) held that the two observations were made without evidentiary support, that they were critical to the reasoning, that the Minister’s state of satisfaction had to be formed on findings open on the evidentiary materials, and that jurisdictional error had occurred. The High Court granted special leave and heard the appeal on 9 September 2021. On 8 December 2021 the Court unanimously allowed the appeal, restored the Minister’s decision (subject only to costs adjustments), and held that no jurisdictional error had been committed.
The joint judgment rests on a close reading of the statutory scheme in ss 501, 501CA and 501G. Once the conditions in s 501(3A) are satisfied, cancellation is mandatory. By contrast, the revocation power in s 501CA(4) is broad and conditioned only on the Minister being satisfied that the person passes the character test or that “another reason” exists for revocation. Parliament has prescribed no mandatory relevant considerations for the “another reason” limb beyond the obligation to consider and understand the representations received. The Minister is not required to make discrete findings of fact on every claim advanced. Where representations are bare assertions lacking substance, the Minister may simply remain unpersuaded without resolving each factual contention.
When reasons are given under s 501G, s 25D of the Acts Interpretation Act 1901 (Cth) requires findings on material questions of fact and reference to the evidence or other material on which they are based. However, the obligation is to state the “essential ground or grounds” of the conclusion. A failure to comply with s 501G does not invalidate the underlying decision. The joint judgment holds that if the Minister chooses to make an express finding of fact, that finding cannot be made on “no evidence” in the traditional sense of “not a skerrick of evidence”. Yet an exception is expressly recognised: the finding may rest on the Minister’s personal or specialised knowledge or on matters that are commonly known. Nothing in the text, context or purpose of s 501CA(4) prohibits the Minister from drawing on such knowledge. The Minister may also draw on the accumulated knowledge of the Department and may adopt draft reasons prepared by officers provided they reflect the Minister’s own reasoning.
In this case the two observations about the widespread use of English and the availability of services were not shown to be incorrect. The respondent disavowed any suggestion that the Minister had simply invented them. The obvious inference was that they derived from the Minister’s personal or specialised knowledge built up over years of administering the migration portfolio and dealing with individuals from Pacific nations. Because the observations were not adverse to the respondent—they in fact fed into the ultimate finding of “significant adjustments and hardship” that favoured revocation—they could not have infected the weighing process. The Full Court majority’s conclusion that the Minister’s satisfaction had to be formed only on findings open on the evidentiary materials before him was therefore not entirely correct. That proposition overlooked both the entitlement to use personal knowledge and the ability to reject bare assertions without making counter-findings at all.
On procedural fairness, the Court applied Kioa v West and the line of authority that an applicant must be given an opportunity to address adverse material that is not obvious and cannot reasonably be known to the applicant. Here the respondent himself raised the conditions in American Samoa. He was invited to support his claims with evidence but elected to rely on assertion only. The Minister’s reasons did no more than respond to the case actually advanced. There is no statutory equivalent to ss 424AA or 424A of the Act that would require advance notice of the Minister’s provisional views on the topic. Requiring disclosure of every piece of personal knowledge in such circumstances would transform the revocation process into an iterative debate unsupported by the statute.
Besanko J’s dissenting analysis in the Full Court was preferred: the matters were within the Minister’s personal knowledge, the impugned finding about English had not even been the subject of a specific claim by the respondent, and the observations supported rather than undermined the finding of hardship. The appeal was therefore allowed.
Prior to Viane the law on the “no evidence” ground in the migration revocation context was unsettled. Decisions such as Hands v Minister for Immigration and Border Protection and Assistant Minister for Immigration and Border Protection v Splendido had illustrated that in extreme cases a Minister could not make positive findings about future danger or personal hardship wholly unsupported by any material. The Full Court majority in Viane had relied on an implied statutory condition, drawn from Gummow J’s reasons in Eshetu, that the Minister’s satisfaction must rest on factual findings open on the evidentiary materials. That reading appeared to preclude any reliance on the Minister’s own accumulated knowledge.
After Viane the position is clear. The High Court has authoritatively stated that the statute contains no limitation on the sources of information the Minister may use. Personal or specialised knowledge is a permissible basis for factual observations provided the knowledge is genuinely held and the finding is not “made up”. The “no evidence” ground is confined to situations in which the decision-maker has no material at all, including personal knowledge. The obligation to give reasons under s 501G and s 25D does not convert every factual statement into a finding that must be independently corroborated by documentary evidence.
The decision also narrows the procedural fairness obligation in revocation cases. An applicant who advances unsubstantiated assertions about conditions in a prospective country of removal cannot expect the Minister to disclose every piece of departmental or personal knowledge on the topic and reopen the representations. This is consistent with the earlier authorities (Kioa, Alphaone, SZBEL, Muin) but applies them in a manner that respects the practical realities of high-volume decision-making under s 501CA.
The breadth of the “another reason” discretion is emphasised. No fixed list of mandatory considerations exists unless a representation squarely raises non-refoulement or another topic that the statute or circumstances make mandatory. The power must still be exercised reasonably and in good faith, but the present case illustrates that reasonableness review will not lightly infer that a Minister’s recourse to personal knowledge is irrational.
Paragraph 18 of the joint reasons contains the succinct definition: “By ‘no evidence’ this has traditionally meant ‘not a skerrick of evidence’.” In plain English, the Court is reminding practitioners that the no-evidence ground is a high bar; it is not triggered merely because a particular piece of information is not recorded in the departmental file. If the Minister knows something from long experience, that knowledge counts.
At paragraph 19 the Court states: “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 in determining whether the Minister is satisfied that there is ‘another reason’ for revocation.” Translation: Parliament did not write a rule saying the Minister can only read the papers in front of him. The Minister is allowed to bring to the decision everything he or she has learnt from doing the job.
Paragraph 28 addresses procedural fairness: “It was the respondent who made claims about how he and his family would be exposed to adverse conditions … He was given the opportunity to make submissions about such issues and to support his claims with evidence. In the end, he relied only upon bare assertions … He was under no obligation to disclose his disagreement and give the respondent yet another opportunity …” Plain English: If you assert something without proof, the Minister can say “I don’t fully accept that” based on his own background knowledge without sending you a draft and inviting a second round of submissions. The process is not an endless ping-pong match.
The Court’s acceptance at paragraph 3 that the Minister “largely accepted the respondent’s assertions” but added two qualifying observations is also important. It demonstrates that the observations were not adverse findings but were, on balance, consistent with the ultimate conclusion that significant hardship would be suffered. This factual nuance prevented any argument that the observations skewed the weighing exercise against the respondent.
Viane will be engaged whenever an applicant for revocation under s 501CA(4) advances claims about conditions in a prospective country of removal that are expressed as bare assertions unsupported by country information, expert reports, witness statements or other corroborative material. The paradigm case is a generalised claim of “hardship”, “lack of services”, “cultural unfamiliarity” or “language barriers” without evidence. In such circumstances the Minister may respond in reasons by drawing on personal or specialised knowledge—acquired through repeated exposure to similar cases or through the accumulated knowledge of the Department—without first placing that knowledge before the applicant for comment.
The precedent is also triggered when a judicial review applicant argues that every factual statement in the Minister’s reasons must be traceable to a discrete piece of evidence in the file. Viane makes clear that such an argument must fail if the statement can reasonably be attributed to the Minister’s personal knowledge. The case is equally relevant where the impugned observation is not shown to be factually wrong; the respondent’s forensic choice not to contest the accuracy of the English-language and services observations was fatal to the “no evidence” ground.
Conversely, the decision flags that different considerations arise if the finding is both material and demonstrably incorrect, or if it concerns a matter so specific to the individual applicant that it could not possibly form part of any pre-existing personal or specialised knowledge. The joint judgment expressly leaves open that category of “extreme and rare cases” illustrated by Hands and Splendido.
Although the judgment is recent, its reasoning has already been applied by the High Court itself in rejecting the Full Court’s broader reading of Eshetu. The joint judgment distinguished Eshetu on the basis that the statutory context of s 501CA(4) differs from the Tribunal’s task under the Migration Act as it stood in 1999. Lower courts are now bound to treat the Minister’s entitlement to use personal knowledge as an answer to a no-evidence ground in revocation cases. The decision has reinforced the authority of Palme on the limited content of the obligation under s 501G and has narrowed the procedural fairness obligation in line with the existing authorities in Kioa, Alphaone and SZBEL. Because the Court emphasised that the Minister’s observations in this case supported rather than undermined the finding of hardship, later courts can be expected to examine the overall tenor of the reasons before concluding that an unsupported observation is material and adverse. The unanimous nature of the judgment and the explicit approval of Besanko J’s dissent in the Full Court further strengthens its precedential force.
The joint judgment expressly leaves open what follows “if the finding in question was material to the process of reasoning and was incorrect”. That reservation will require future litigation where an applicant can prove that the Minister’s personal-knowledge observation was factually wrong and that the error affected the outcome. The Court has not defined the precise boundaries of “personal or specialised knowledge”. Is it limited to knowledge acquired in the ministerial role, or does it extend to private reading or life experience? The judgment assumes the Minister’s knowledge was genuinely held; a future case may test how a court is to review an assertion that the knowledge was in truth absent.
Another open question is the interaction with Direction 90 or any successor ministerial direction made under s 499. The present case did not involve a direction, but the entitlement to use personal knowledge may be qualified if a direction expressly requires decisions to be based on “information before the decision-maker”. The Court also left untouched the position where the applicant does provide evidence and the Minister wishes to contradict it with personal knowledge; the present reasons emphasise the “bare assertions” character of Mr Viane’s claims.
Finally, the procedural fairness analysis assumes the applicant has been given a genuine opportunity to put evidence before the Minister. In a future case where the invitation to make representations is said to have been procedurally flawed, or where the Minister relies on highly specific country information that could not reasonably have been anticipated, the outer limits of the “no obligation to disclose” principle may require further elucidation. These residual uncertainties ensure that Viane, while decisive on the facts before the Court, will not be the last word on the interaction between personal knowledge and the revocation power.
(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
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.
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.
Words and phrases - "another reason", "bare assertions", "commonly accepted knowledge", "conditions in American Samoa or Samoa", "hardship", "Minister's personal or specialised knowledge", "no evidence", "personal knowledge", "reasons for decision", "removal to American Samoa", "representations about revocation", "specialised knowledge", "visa cancellation".
"I find that the whole family, may, at least initially, experience problems relating to employment, income, housing and lack of family or social support and this would negatively impact on [the respondent's child]. English, however, is widely spoken in American Samoa and Samoa and healthcare, education and some welfare support are available in either location."
"I accept that the services available in American Samoa and Samoa may not be of the same standard as those available in Australia, and/or may be more expensive to access, and there may be differences in services between American Samoa and Samoa."
"In relation to New Zealand, I find that [the respondent] and his family will have access to similar social services and healthcare support to those enjoyed by citizens of New Zealand. I find that these services are of a similar level to those available in Australia and that New Zealand is culturally and linguistically similar to Australia."
Other than the draft reasons for decision which the Minister's Department had prepared. ↑
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 at 403 [61] per Kerr and Charlesworth JJ. ↑
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 657 [145], [147] per Gummow J. ↑
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 347 [44] per Kiefel CJ, Bell, Keane and Edelman JJ. ↑
Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 902 [36] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 201. ↑
Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 at 902 [33] per Nettle, Gordon and Edelman JJ; 383 ALR 194 at 200. ↑
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 per Latham CJ (Starke J agreeing). See also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [73] per Gleeson CJ and Gummow J; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 35 [33] per Gageler and Keane JJ. ↑
In the case of a delegate of the Minister or the Administrative Appeals Tribunal, any written directions given by the Minister must also be complied with: s 499 of the Migration Act 1958 (Cth). ↑
Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 1010 [262] per Hayne J; 190 ALR 601 at 661. ↑
Where the decision was made by the Minister's delegate, the notice must also set out the applicant's rights of review: s 501G(1)(f) of the Migration Act 1958 (Cth). ↑
(2003) 216 CLR 212 at 224 [40] per Gleeson CJ, Gummow and Heydon JJ. ↑
Migration Act 1958 (Cth), s 501G(4). See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 225 [45] per Gleeson CJ, Gummow and Heydon JJ. ↑
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 [575] per Weinberg J, quoting Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 239. ↑
Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 at 446 [39] per Branson J (Goldberg and Allsop JJ agreeing); C Incorporated v Australian Crime Commission (2010) 113 ALD 226 at 241-242 [59] per Black CJ, Mansfield and Bennett JJ; Folau v Minister for Immigration and Border Protection (2017) 256 FCR 455 at 474 [78], 475 [84], 477 [90] per Murphy and Burley JJ. ↑
cf Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365 at 368-369, 373 per Stephen J. ↑
See, eg, Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595. ↑
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 at 399‑400 [42]‑[46] per Kerr and Charlesworth JJ. ↑
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 at 400 [47] per Kerr and Charlesworth JJ. ↑
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 at 401 [48], [52], 403 [61] per Kerr and Charlesworth JJ. ↑
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 at 393 [13]. ↑
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 at 393-394 [14]. ↑
Kioa v West (1985) 159 CLR 550 at 587 per Mason J (Deane J agreeing); Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 1010-1011 [265] per Hayne J; 190 ALR 601 at 661-662. ↑
See, eg, Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591‑592 per Northrop, Miles and French JJ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164‑165 [41]‑[44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. ↑
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; 235 ALR 609 at 616. See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 166 [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. ↑
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Viane
(2020) 278 FCR 386
(1999) 197 CLR 611
(2018) 262 CLR 333
(2020) 94 ALJR 897
(1944) 69 CLR 407
(2001) 205 CLR 507
(2015) 257 CLR 22
(2002) 76 ALJR 966
(2003) 216 CLR 212
(2005) 148 FCR 446
(2002) 125 FCR 433
(2017) 256 FCR 455
(1972) 129 CLR 365
(2018) 267 FCR 628
(2019) 271 FCR 595
(1985) 159 CLR 550
(1994) 49 FCR 576
(2006) 228 CLR 152
(2007) 81 ALJR 1190
Appeal allowed. Orders 4 and 5 of the Full Court of the Federal Court made on 24 August 2020 set aside and, in their place, order that order 2 of the Federal Court made on 20 February 2020 be set aside with an order that the respondent pay the applicant's costs as agreed or taxed and that the appeal to the Full Court otherwise be dismissed. The appellant is to pay the respondent's reasonable costs in the High Court.