FEDERAL COURT OF AUSTRALIA

IMMIGRATION  - refusal of grant of permanent entry visas – application to Administrative Appeals Tribunal to review decision – affirmation of decision by Administrative Appeals Tribunal – application for review of Tribunal’s decision under Administrative Decisions (Judicial Review) Act 1977 (Cth) and Migration Act 1958 (Cth) – jurisdiction of the Federal Court – nature of decision made by Administrative Appeals Tribunal – whether decision under Administrative Appeals Tribunal Act 1975 (Cth) or under Migration Act – whether judicially reviewable decision under Migration Act – not judicially reviewable decision under Migration Act – jurisdiction available under Administrative Decisions (Judicial Review) Act  and under Administrative Appeals Tribunal Act – good character – previous criminal conduct and general conduct – nature of good character factors required for assessment of good character – error of law in failing to address question of good character – error of law in weighing seriousness of misconduct against mitigating factors – decision of Tribunal set aside – application remitted to Tribunal for reconsideration according to law.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) ss 65 and 501

Administrative Appeals Tribunal Act  1975 (Cth)

Judiciary Act 1903 (Cth) s 44

Minister for Immigration and Ethnic Affairs v Ah Hin  Teoh (1995) 183 CLR 273, cited

Otter Goldmines Limited v Australian Securities Commission and Others (1997) 25 ASCR 382, cited

Liedig v Federal Commissioner of Taxation (1994) 121 ALR 561, cited

Federal Commissioner of Taxation v Swift (1989) 18 ALD 679, cited

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, cited

Szajntop v Gerber (1992) 28 ALD 187, cited

Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585, discussed

Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107, cited

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, discussed

Minister for Immigration and Ethnic Affairs v Baker (1997) 24 AAR 457, referred to

JOHN DYSON POWELL and MARISA POWELL v ADMINISTRATIVE APPEALS TRIBUNAL AND DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

WAG 96 OF 1998

FRENCH J

PERTH

20 NOVEMBER 1998

THE COURT ORDERS THAT:

1.         The Minister of Immigration and Multicultural Affairs is substituted as Second Respondent.

2.         The decision of the Administrative Appeals Tribunal given 29 June 1998 affirming the decision of the Second Respondent to refuse the grant of Permanent Entry Visas under sub-class 103 to the Applicants be set aside.

3.         The applications be remitted to the Tribunal differently constituted for determination according to law.

4.         The Second Respondent to pay the Applicants’ costs of the application.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

On 29 November 1996 a delegate of the Minister for Immigration and Multicultural Affairs refused the grant of permanent entry visas to John and Marisa Powell who are British citizens living in Australia and whose four year old daughter, Jasmine, is an Australian citizen.  The visas were refused on the basis that the Powells were not persons of good character.  That decision was based upon their involvement in a fraudulent scheme to secure permanent residence for themselves in this country. 

The Powells applied to the Administrative Appeals Tribunal for review of the decisions.  On 29 June 1998,  the Tribunal affirmed the Minister’s decision.  The Powells have sought an order for review of the decisions of the Tribunal under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) and alternatively the Migration Act 1958 (Cth).  The application raises a question as to the jurisdiction of the Federal Court to entertain applications to review decisions of the Tribunal relating to the grant of visas under the Migration Act.  It also raises a question about the way in which delegates of the Minister and the Tribunal approach the assessment whether a person is not of good character as a basis for the refusal of the grant of a visa.  In this case it is said that the Tribunal, while having identified serious misconduct on the part of the Powells, has failed to bring that together with other factors to an assessment of their character for the purposes of s 501 of the Migration Act under which the decisions were made.

This being an application by way of judicial review it is not the function of the Court to decide for itself whether the Powells are or are not persons of good character.  The Court’s consideration must be limited to whether or not the Tribunal has erred in law in the approach that it has taken.

At the outset it should be noted that the second respondent on the papers is shown as the Department of Immigration and Multicultural Affairs.  The decision-maker was a delegate of the Minister of Immigration and Multicultural Affairs and the Minister should be substituted as second respondent.

Factual History

John Dyson Powell and his wife, Marisa, are both British citizens.  Mr Powell came to Australia on a visitor’s visa valid for six months, arriving at Perth Airport on 5 December 1989.  At that time he had been twice married.  His first marriage was on 6 June 1971 to Sheila Powell who died on 21 April 1977.  His second marriage to Yvonne Powell took place on 17 June 1978 and was dissolved on 15 September 1988. 

At the time that Mr Powell came to Australia he had already formed a relationship in England with Marisa, then Marisa Bartlett-Smith, dating back to 1986.  She had been married to Derrick Bartlett-Smith since 30 September 1978.  She had a son, Dean, by him on 15 October 1979.  A second son, Dale, was born on 5 June 1984. 

The marriage became unhappy and violent and Marisa separated from her former husband early in January 1986.  This followed an incident in which she alleges he acted violently towards her and threatened to kill her and discharged a firearm at her car as she drove away from the house.  She engaged lawyers who wrote to him and he left the matrimonial home on or about 11 January.  She then moved back into the house with her children.  The children resided with Marisa after the separation pursuant to a court order made on 2 June 1986.  In November 1986 interim care and control of the children was granted to Bartlett-Smith.  Marisa was granted access, as were her parents.

She met John Powell sometime between January and August of 1986. He was working for British Telecom.  Their relationship was a sexual one from soon after it began.  However, until late in 1987 they did not have an open or continuing relationship as he was still married to, and ostensibly living with, his then wife, Yvonne.  He and Yvonne separated in June 1987 and within a few days Marisa moved into his new house at York. 

During the first half of 1987 Marisa changed her surname from Bartlett-Smith to Dyson.  That was John Powell’s middle name.  In June 1987 she obtained employment at British Telecom.  She was eventually promoted in late 1990 or early 1991 to the position of a Project Manager. 

In February 1989 Marisa Dyson (as she then was) and John Powell came to Australia for a four week holiday.  They travelled on visitors visas.  At this time they met Marjatta Saastamoinen who was a neighbour of people with whom they stayed during their visit.  They liked the lifestyle and climate and returned to Australia in December 1989.  At this time they made an arrangement with Ms Saastamoinen that John Powell would marry her in order to obtain permanent resident status in Australia.  The plan was that he would then divorce her and marry Marisa so that she could then apply for permanent residency in this country. 

On 13 January 1990 Marisa returned to the United Kingdom and on 24 February 1990 Mr Powell married Ms Saastamoinen.  He maintained continuing communication by telephone and letter with Marisa.  He paid $7,500 into Ms Saastamoinen’s bank account and gave her household furniture which had been purchased to create the impression that they were setting up a matrimonial home.  On 26 February 1990 he applied for permanent resident status in Australia on the basis of his marriage to Ms Saastamoinen who was then known as Mrs Marjatta Powell. 

On 3 April 1990 Mr Powell returned to the United Kingdom and on 10 April applied for migration to Australia under the category of preferential family migration based on his marriage to Ms Saastamoinen.  He did not disclose his then de facto relationship with Marisa Dyson.  Ms Saastamoinen visited Mr Powell in England in June 1990 and stayed with him for a week. 

On 1 November 1990 Mr Powell’s application for permanent resident status in Australia was approved.  He was granted a Transitional (Permanent) Visa.  He subsequently divorced Ms Saastamoinen.   In October 1991 he returned to England and lived at the house at York with Marisa.  In February 1992 the house was sold.  In March 1992 Mr Powell and Marisa  travelled to Australia.  She returned to England on 31 May 1992 but came back to Australia on 16 July.  Since that time they have remained living together in Australia. 

On 23 December 1992, Marisa made an application to remain permanently in Australia on the basis of her de facto marriage with Mr Powell.  On 8 May 1993 Mr Powell and Marisa married and she then took the name of  Marisa Powell.

The Department of Immigration became aware that the marriage to Ms Saastamoinen may have been a sham.  Officers of the Department interviewed the Powells in July 1993.  They had told lies in their application form and they told lies at the interview with a view to concealing the length and nature of their long term relationship.  Mrs Powell attempted to burn correspondence which disclosed her knowledge of the sham marriage arrangements while she was in the United Kingdom.  They both maintained the genuineness of the sham marriage and lied about their own previous relationship. 

In the event, it was decided by Departmental Officers that there was evidence of the commission of criminal offences by Mr and Mrs Powell and a brief of evidence was forwarded to the Director of Public Prosecutions (DPP) on 24 December 1993.  On 9 June 1994 the DPP advised that there were reasonable prospects of obtaining convictions against the Powells and Ms Saastamoinen.  On 12 July 1994 all three appeared in the Perth Court of Petty Sessions on charges of criminal offences relating to the sham marriage and associated applications and the attempted destruction of the correspondence.  On 22 August 1994, following advice from the DPP that all charges had been adjourned to an election date, it was decided that the Department should pursue administrative action as an alternative to what was perceived as an expensive and lengthy prosecution before a jury.

On 12 October 1994 Mrs Powell gave birth to a daughter, Jasmine, who became an Australian citizen at birth because her father was at the time of her birth a permanent resident under a Transitional (Permanent) Visa. 

The criminal charges were dismissed on 27 October 1994 after the DPP presented no evidence.

On 8 June 1995 the Department issued a Notice of Intention to Cancel the Transitional (Permanent) Visa held by Mr Powell on the basis that he had incorrectly answered questions on his Application for Migration to Australia by failing to disclose that at the date of the application and prior to his marriage to Ms Saastamoinen he had been living in a de facto relationship with Mrs Powell.  Mr Powell’s migration agent made a detailed submission on 23 June 1995 rejecting the allegations.  On 7 July 1995 Mr and Mrs Powell’s migration agent submitted an Application for Migration to Australia (Sub-class 103 Parent Visa) by both Mr and Mrs Powell based on sponsorship by the Perth City Mission and the citizenship of their daughter Jasmine under Migration Regulation 103.212(2)(b). 

On 27 June 1996 the Transitional (Permanent) Visa held by Mr Powell was cancelled under s 109 of the Migration Act.  On 11 July 1996 Mrs Powell’s application made in December 1992 for permanent residence on the ground of her then de facto marriage to Mr Powell was refused.  No review was sought of that decision.  The cancellation of the Transitional (Permanent) Visa was the subject of an application for review by the Immigration Review Tribunal.  However, the Tribunal has taken no action in relation to that application pending the outcome of the application which is the subject of this appeal. 

On 22 November 1996 a delegate of the Minister for Immigration and Multicultural Affairs made a decision not to grant sub-class 103 visas on the ground that she found Mr Powell not to be of good character and exercised her discretion under s 501 of the Migration Act.  Applications were made to the Administrative Appeals Tribunal for review of the decision.  The hearing of the applications took nine days in March, April and June 1998.  On 29 June 1998 Deputy President Barnett affirmed the decisions under review.

The applicants now apply for an order of review of the decisions of the Administrative Appeals Tribunal.  The application is made under the ADJR Act and, alternatively, the Migration Act.

Statutory Framework

The relevant provisions of the Migration Act are ss 65 and 501.  Section 65 provides:

“65.  After considering a valid application for a visa, the Minister:

            (a)        if satisfied that:

(i)                 the health criteria for it (if any) have been satisfied; and

(ii)               the other criteria for it prescribed by this Act or the Regulations have been satisfied; and

(iii)             the grant of the visa is not prevented by section 40 (circumstances when granted), section 501 (special power to refuse or cancel) or any other provision of this Act or any other law of the Commonwealth; and

(iv)             any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

            (b)        if not so satisfied, is to refuse to grant the visa.”

Section 501 confers upon the Minister a special power to refuse or to cancel a visa or entry permit and relevantly provides:

“501(1)  The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if;

(a)               subsection (2) applies to the person; or

(b)               the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

(i)     be likely to engage in criminal conduct in Australia; or

            .

            .

            .

(2)    This section applies to a person if the Minister:

            (a)        having regard to:

                                          (i)         the person’s past criminal conduct; or

                        (ii)        the person’s general conduct;

                        is satisfied that the person is not of good character; or

            (b)        is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

(3)   The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.”

Provisions relevant to the jurisdiction of the Court which is in issue in this application are as follows:

“500(1)  Applications may be made to the Administrative Appeals Tribunal for review of:

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(b)       decisions of the Minister under section 501;

other than decisions to which a certificate under section 502 applies;

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(4)   Decisions referred to in subsection (1) are not reviewable under Part 5 or 7.”

Part 5 deals with review of decisions internally and by the Immigration Review Tribunal.  Part 7 deals with review of protection visa decisions by the Refugee Review Tribunal. 

Part 8 deals with review of decisions by the Federal Court and defines a class of “judicially-reviewable decision” in s 475 which by subs (1) includes:

“(a)     decisions of the Immigration Review Tribunal;

 (b)       decisions of the Refugee Review Tribunal;

 (c)       other decisions made under this Act, or the regulations, relating to visas.”

It is contended by the respondent Minister that the Tribunal’s decisions in this case were decisions made under the Migration Act relating to visas and constituted “judicially-reviewable decisions” within the meaning of s 475(1)(c) of the Migration Act. 

Section 475(2) sets out classes of decisions which are not judicially-reviewable decisions.  There is, however, no relevant exclusion in that subsection. 

Section 485 of the Act confines the jurisdiction of the Federal Court in relation to judicially reviewable decisions in the following way:

“485(1)  In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

     (2)  Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.

   (3)  If a matter relating to a judicially reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.”

The Federal Court is given, by s 486, jurisdiction with respect to judicially-reviewable decisions which is exclusive of that of all other courts other than the jurisdiction of the High Court under s 75 of the Constitution.  

The grounds upon which a judicially-reviewable decision may be reviewed by the Federal Court are set out in s 476 of the Act. 

The Administrative Appeals Tribunal Act 1975 (Cth) provides the basis upon which the Tribunal may make decisions upon a review application.  Section 43(1) is in the following terms:

“43(1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing –

(a)       affirming the decision under review;

(b)       varying the decision under review; or

(c)        setting aside the decision under review and –

            (i)         making a decision in substitution for the decision so set aside; or

            (ii)        remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

The obligation to give reasons for the decisions of the Tribunal is supported by s 43(2) and the content of those reasons is prescribed by s 43(2B):

“43(2)  Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

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43(2B)  Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”

A party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law from any decision of the Tribunal in the proceeding (s 44).

Grounds of the Application

The grounds of the application in so far as it seeks to invoke the ADJR Act can be summarised without setting them out in full.  Each of the decisions is said to involve an error of law on the part of the Tribunal in the following terms:

            1.         The Tribunal affirmed the decisions of the Minister under s 501(2) without making a finding that the Powells were not of good character.

            2.         Further, or alternatively, the Tribunal failed to give adequate reasons for finding that the Powells were not of good character.

            3.         The Tribunal made a finding of fact that Mrs Powell was facing criminal charges when she saw a psychologist, Beaton, in November and December 1997 and was endeavouring to collect evidence from him favourable to her case in court.  The true position is that there was no evidence in November and December 1997 that she was facing criminal charges.

            4.         The Tribunal preferred, without giving adequate reasons, the evidence of Mrs Powell’s former husband to that of Mr and Mrs Powell on the question whether he had subjected her to harassment between 1988 and 1991. 

            5.         The Tribunal made a finding without giving adequate reasons that if the applications for parent visas did not succeed the Powells would return to England and be together to care for their child.

            6.         The Tribunal did not properly consider the best interests of the child as it failed to take into account evidence of a significant risk that the Powells would separate if required to return to England.

            7.         The Tribunal, having determined that the best interests of the child and that the Powells should not benefit from immigration fraud were primary considerations in making the decisions, failed to give adequate reasons for affirming the Minister’s decision.

The grounds under the Migration Act in substance embodied all but ground 3 of those relied upon under the ADJR Act.  Instead of characterising the grounds as directed to error of law however, they were characterised for the purposes of s 476 of the Migration Act as basing claims of lack of authority to make the decision under the Migration Act or failing to follow procedures required by it.  There were amendments to the Migration Act grounds allowed at the hearing to which it is now unnecessary to refer further having regard to the conclusions I have reached about jurisdiction. 

In particular, those grounds relating to the inadequacy of the reasons of the Tribunal were said to flow from s 43 of the Administrative Appeals Tribunal Act.  The requirement to give reasons imposed by that section were said to be imported into procedures required under the Migration Act by s 501(1)(b).  Accordingly, if a decision had been made by the Tribunal without giving adequate reasons it constituted a decision not authorised by the Act or, alternatively, one which involved the failure to follow procedures required by the Act. 

The Tribunal’s Decision

The Tribunal outlined the substance of the factual history set out earlier in these reasons.  It found in particular that the Powells had lied to the Department of Immigration maintaining the genuineness of the sham marriage and lying about their own previous relationship.  It went on to find that they continued with their false stories throughout pre-hearing proceedings at the Tribunal and up until the day before the hearing.  This was said to be clear from statements of facts and contentions which the Powells had lodged and from their own witness statements and from the fact that they had arranged for witnesses, including Ms Saastamoinen, who were intending to give false evidence.

Amended statements of facts and contentions had been filed on the first day of the hearing and in these admissions were made that the Powells had both been involved in sham marriage arrangements and that they had lied to the immigration authorities on their application forms and at interviews.

The Tribunal noted that before Mr Powell gave evidence he was warned of the absolute necessity for him to make full disclosure and not to commit perjury.  Notwithstanding this, he had commenced to give evidence that he met Mrs Powell in 1987 and had developed a platonic friendship which did not develop into a relationship until 1989.  However, upon being confronted with evidence establishing an earlier start to the relationship, he admitted that his evidence on that point was deliberately false.  The Tribunal noted:

“He explained his perjury by saying he was trying to avoid any mention of earlier events involving Bartlett-Smith, as recalling those incidents was very traumatic for Mrs Powell.”

The Tribunal found it to be clear that even within the Tribunal he and Mrs Powell had decided to tell lies on key issues. 

The Tribunal formed the opinion that both were exaggerating and concealing when they thought it was in their best interest to do so.  As a result, little reliance was placed on their credibility on contentious issues unless supported by independent corroborative evidence.  A key finding of the Tribunal appeared at par 21 in the following terms:

“21.  The Tribunal finds that the conduct of Mr and Mrs Powell in regard to the sham marriage, the immigration fraud which they perpetuated (including committing criminal offences in the process of applying for their visa’s) and their subsequent contempt of the Tribunal proceedings (including admitted perjury by Mrs Powell) has amounted to criminal misconduct of a most serious nature which cuts right to the heart of Australia’s migration laws and policy.”

The Tribunal found factors in their favour in particular that Mr Powell had obtained steady employment as an upholsterer, was well spoken of by his employer, had acted as a good neighbour and friend to people in trouble, and was involved in charitable activities with the Head Injured Society and the Perth City Mission.  Mrs Powell had obtained employment as the coordinator of fund raising for the Perth City Mission.  She had been creative and successful and was highly commended by her employer, Mr Northcott.  During the course of the proceedings before the Tribunal she resigned from that position.  She and her husband were good and loving parents for their daughter, Jasmine, who has been used as a model for advertising material for Perth City Mission fund raising campaigns.

The Tribunal rejected a claim that the sham marriage scheme was motivated by Mrs Powell’s fear of Bartlett-Smith.  It noted that at the time the scheme was conceived she was a well paid “achiever” in British Telecom, holding down a high level job and that this was all happening in the general area where Bartlett-Smith was residing.  Moreover she exercised access to her children at her parents’ house where they were regularly left by Bartlett-Smith.

She also claimed that her fear of Bartlett-Smith was a major pre-occupation.  She gave evidence of sexual and violent assaults and the firing and discharge of a firearm in her direction.  She maintained that if she were forced to return to the United Kingdom she would be emotionally disturbed and unable to properly look after her daughter who would suffer as a consequence.   Evidence of a clinical psychologist, Bruce Beaton, was called before the Tribunal.

As to this the Tribunal found that from the history taken by Mr Beaton it was clear that Mrs Powell was not completely forthright with him.  It said:

“He saw her in November and December 1997, at a time when Mrs Powell was facing criminal charges and was endeavouring to collate favourable evidence to help her in Court and in her battle with the immigration (sic) Department.”

It is to be noted that it does not appear that there were then any criminal charges pending against the Powells.  The charges that had been brought against them were dismissed in 1994.

The Tribunal was unable to accept his report at face value in view of Mrs Powell’s motive for lying and exaggerating at this time and in view of the lies she was telling to officials.  It accepted that her fear of Bartlett-Smith would cause negative emotional reactions but found that she had exaggerated her history and the strength of those reactions.  In dealing with the evidence of Bartlett-Smith, the Tribunal said:

“Her letters to Mr Powell in Australia give no indication of the “terrifying” harassment she claims to have been suffering at the hands of Bartlett-Smith.  Leaving aside her own testimony, the evidence of such harassment, since the days during and immediately after the break up of her marriage, is very scant.  Although Mr Bartlett-Smith’s own evidence was also unsatisfactory in some respects (showing him to be a vindictive man, reluctant to admit any association with violent episodes and with a tendency to exaggerate in order to damage Mrs Powell’s reputation), on the matter of harassment between 1988 and 1991, the Tribunal prefers his evidence.  It finds that the Powells were not truthful on this issue.”

Dealing with the interests of the child, Jasmine, the Tribunal referred to Article 3 of the United Nations Convention on the Rights of the Child which provides:

“1.       In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.         States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”

The Tribunal referred to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.  It noted that a significant amount of evidence at the hearing and in submissions revolved around the question of Jasmine and her interests.  It was necessary to consider her interests carefully especially as she is by birth an Australian citizen.  The Tribunal said:

“Her interests are in this matter a paramount consideration.”

It found that Jasmine had been living in a secure, loving home environment in Perth and was developing well as a confident child, much loved by both parents.  Both parents had had good, well paid jobs and had purchased a comfortable home, far away from the worries associated with their United Kingdom background.  The Tribunal found:

“To disrupt Jasmine and move her to a new environment is likely to be contrary to her short term interests.  The seriousness of this disruption, and whether it has long term implications, will depend on whether she remains surrounded by loving parents who maintain a high level of parenting.”

The Tribunal noted the similarity of UK culture to that of Australia and the degree of familiarity it held for the Powells.  It was of the opinion that given their skills, the Powells were capable of seeking employment anywhere in the UK and could, if they so chose, reside and work in an area far away from Bartlett-Smith, especially given that Mrs Powell’s ties with her family appeared to have been strained and weakened as a result of things said in the proceedings before the Tribunal.  Although Bartlett-Smith’s evidence showed him to be vindictive and hostile towards Mrs Powell she would, if she returned to the UK, have the strong support of Mr Powell who had frequently shown himself to be a devoted husband and father.  The Tribunal in its two concluding paragraphs said:

“14.  In summary, considering Jasmine’s best interests as one of the primary considerations in this case, the Tribunal finds that her best interests lie in her remaining in Australia within her present secure circle of friends and loving parents.  The alternative of moving to the UK, however, should not be a major disadvantage to her because her parents have skills and contacts to set up a suitable home anywhere in the UK.  The Tribunal finds that Mrs Powell is capable of dealing with her fears of Bartlett-Smith, as she has in the past.  This time she will have the full support of Mr Powell.

15.  The other primary consideration in this case is that immigration fraud of the magnitude and nature of this one should not be allowed to benefit the perpetrators, except in the most compelling circumstances.  There are many law abiding applicants for Australian residence.  They and their Australian relatives and sponsors would, justifiably, feel outraged if the Powells were granted visas in these circumstances.  To do so would bring Australia’s immigration laws and policies into disrepute and would be likely to encourage others to “jump the queue” by trying similar illegal schemes.”

The Question of Jurisdiction

The  Minister challenged the jurisdiction of the Court to entertain the application under the ADJR Act.  He contended that the jurisdiction of the Court in respect of judicially-reviewable decisions is confined to that provided by Part 8 of the Migration Act or by s 44 of the Judiciary Act 1903 (Cth).  The Tribunal in affirming the decisions not to grant Sub-class 103 Parent Visas was making decisions under ss 500(1)(b) and 501(2) of the Migration Act.  They were decisions made under the Migration Act relating to visas and were therefore, in the Minister’s submission, judicially-reviewable decisions within the meaning of s 475(1)(c). 

The applicants submitted that prior to the enactment of Part 8 of the Migration Act they had an entitlement to review of the AAT decisions in the Federal Court under the ADJR Act.  The Court, it was said, should not favour a construction of the Migration Act which would exclude the entitlement to seek review under the ADJR Act unless very clear language of exclusion were used in the Migration Act.

The applicants accepted that if the decisions made by the AAT were decisions made under the Migration Act with respect to visas the right of review under the ADJR Act would be extinguished. 

In my opinion it is clear that s 485 of the Migration Act excludes the jurisdiction of the Federal Court to entertain applications for the review of judicially-reviewable decisions under the ADJR Act.  This is reinforced by the limitation of the grounds of judicially-reviewable decisions to those set out in s 476 of the Migration Act.  That limitation would be defeated if the wider grounds of review available under s 5 of the ADJR Act were available to them in respect of that class of decision.

The question remains however whether a decision by the Administrative Appeals Tribunal reviewing a decision of the Minister in relation to visas under the Migration Act is a judicially-reviewable decision.  Section 500(1) of the Act provides for applications to be made to the Tribunal in respect of decisions of the Minister under s 501.  The decision making power of the Tribunal however is to be found in s 43 of the Administrative Appeals Tribunal Act.   This requires consideration of the character of the decision which is made by the Tribunal.  Pursuant to s 43(1) the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”.  It has been said, by virtue of this provision, that the Tribunal stands in place of the decision maker whose decision is under review – Otter Goldmines Limited v Australian Securities Commission and Others (1997) 25 ASCR 382; Liedig v Federal Commissioner of Taxation (1994) 121 ALR 561; Federal Commissioner of Taxation v Swift (1989) 18 ALD 679; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.

The Tribunal is empowered to do what the decision-maker under review could do.  The source of its power is s 43(1)albeit it is ambulatory in form.  The content of the power it confers is defined by the particular enactment under which the decision to review was made.  It may be arguable that where the Tribunal substitutes a new decision for the old it can be said to exercise power under the relevant enactment.  I am inclined to the contrary view that even in that case it exercises power conferred by s 43(1) of the Administrative Appeals Tribunal Act and that in doing so it cannot be regarded as exercising power under the other enactment.  However that may be, when the Tribunal affirms a decision in my opinion it exercises a power conferred by s 43(1)(a).  It does not exercise afresh the power conferred by the enactment under which the decision reviewed was made.  This is consistent with the reasoning of Hill J in  Szajntop v Gerber (1992) 28 ALD 187.  There the Tribunal affirmed a decision of the Commissioner of Taxation disallowing objections to assessments.  The Commissioner’s decision in such a case is covered by Item (e) of Schedule 1 of the ADJR Act and is not a decision to which the ADJR Act applies.  But the AAT decision, affirming that of the Commissioner, was not itself a decision to disallow the objection and therefore not caught by Item (e).

In that case Hill J said:

“Where, as in the present case, the tribunal acts to affirm the decision under review, the tribunal does not itself make a decision to disallow an objection to an assessment.  That decision has already been made by the commissioner, and is the subject of the review before the tribunal.  It may be that in a case where the tribunal sets aside the commissioner’s decision and itself acts to disallow in part the taxpayer’s objection, that the decision falls within para (e); it is unnecessary to decide that question.  It is sufficient to say that no torture of language can bring about the conclusion that in the present case the tribunal made a decision to disallow the applicant’s objections against her assessments.”

Similar reasoning led North J in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587 to conclude that a decision of the Refugee Review Tribunal under s 415(2)(a) of the Migration Act, affirming a decision of the Minister to refuse the grant of a protection visa, was not itself a decision to refuse the grant of the visa.  It was not therefore reviewable by the Administrative Appeals Tribunal under s 500(1)(c) of the Act.  On the other hand his Honour seems not to have considered the application of the same reasoning to his observation at 590 that the decision of the Administrative Appeals Tribunal itself “…can be reviewed under s 475(1)(c) of the Act by the Federal Court”.  An appeal to the Full Court was allowed in part on points relating to the jurisdiction of the Refugee Review Tribunal  – Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107.

Relevantly for present purposes therefore the decisions of the Tribunal affirming the decisions of the Minister’s delegate were not decisions made under the Migration Act or the regulations relating to visas.  They were not therefore judicially-reviewable decisions within the meaning of s 475(1).  They are not affected by the limiting operation of s 485(1) in respect of the jurisdiction of the Court to review judicially-reviewable decisions.  Nor do they fall into any of the categories covered by s 475(2).  They are not therefore affected by the limiting operation of s 485(1) on the jurisdiction of the Court in relation to those categories of decision.  Not being judicially-reviewable decisions, they do not fall within the exclusive jurisdiction conferred on the Court by s 486.  They are therefore amenable to review under the ADJR Act.  They are not amenable to review under the Migration Act.  They could also have been  the subject of review on questions of law under s 44 of the Administrative Appeals Tribunal Act.

In the light of these conclusions I will consider only those grounds for review which rely upon the ADJR Act.

The Question of Good Character

The question raised by the first ground of review and the crucial question in this application is whether the Tribunal affirmed the decision of the Minister under s 501(2) without making a finding that the Powells were not of good character.  This does not require consideration by the Court of the Powells’ good character or absence thereof.  To embark upon that inquiry is to undertake merits review of the Tribunal’s decision which is not available under the ADJR Act.  But sitting as it did in the Minister’s place, the Tribunal was obliged, in reviewing his delegate’s decision under s 501, to consider and decide whether the visas should be refused on the grounds that having regard to the Powells’ past criminal or general conduct they were not of good character.  There is no basis for suggesting any other ground for refusing the visas under s 501 except in the sense that following an adverse finding as to character there is a discretion to be exercised as to the refusal of the visas.  A failure by the Tribunal to form a view on whether the Powells were of good character would be a failure to decide whether the condition upon which a visa could be refused under s 501 was satisfied.  To affirm the decision to refuse the grant without making such a finding would, in my opinion, have amounted to an error of law.  Moreover the finding of good character had to be based on an assessment at the time of the hearing before the Tribunal.  This requirement is consistent with the principle that the Tribunal, as part of the continuum of administrative decision making, sits in the place of the Minister. 

The relevant definitions of “character” in the Oxford English Dictionary (2^nd Edition) are:

“The sum of moral and mental qualities which distinguish an individual or a race, viewed as a homogeneous whole; the individuality impressed by nature and habit on man or nation; mental or moral constitution.”

And:

“Moral qualities strongly developed or strikingly displayed; distinct or distinguished character; character worth speaking of.”

Character is not defined by particular acts or omissions.  Its cumulative and enduring quality is illustrated by the statement attributed to the nineteenth century English novelist, Charles Reade:

“Sow an act, and you reap a habit. Sow a habit and you reap a character.  Sow a character, and you reap a destiny.”

This approach to the concept of character and “good character” in the context of the Migration Act is reflected in the judgments of the Full Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84.  That case concerned provisions identical to those in s 501 which appeared in the former s 180A.  Lee J said at 94:

“…the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion.”

His Honour further observed at 94:

“Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that is for the public good to refuse entry.”

Davies J, with whom Nicholson J agreed in that case, accepted that “good character” in context did not refer to reputation and repute as such.  But, he said:

“…criminal convictions or the absence of them and character references are likely to be an important source of primary information.  If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant.  If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed.  If persons speak well of the applicant, the decision-maker will take that into account.” (at 87-88)

In deciding whether or not a person is of good character in the sense in which that term is used in s 501, the decision-maker is entitled to have regard both to past criminal conduct and to the person’s general conduct.  The past criminal conduct which may be considered is not limited to that which has been productive of criminal convictions – Minister for Immigration and Ethnic Affairs v Baker (1997) 24 AAR 457 at 463.  Given the need to address the applicant’s character in the sense of enduring moral qualities it is generally necessary that the decision-maker look beyond particular conduct of the person concerned.  As the Court said in Baker at 463:

“It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of “general conduct”.  So the words “having regard to” and the disjunctive “or” must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation.”

I have given anxious consideration to the approach adopted by the Tribunal on this issue.  In its reasons for decision the Tribunal made strong adverse reflections upon the conduct of the Powells.  It found in particular that their “immigration fraud” and contempt of the Tribunal proceedings amounted to “criminal misconduct of a most seriousness nature which cuts right to the heart of Australia’s migration laws and policy”.

To some degree it may be said that the criminal misconduct of which the Tribunal spoke was part of a tangled web of deception connected specifically to the Powells relationship and their desire to live together in Australia.  There were also positive qualities referred to by the Tribunal of an evidently stable nature relating to the Powells as employees, Mr Powell’s charitable activities and their status as “good and loving parents of their daughter, Jasmine”. 

The Tribunal has not in terms brought these considerations together in an explicit assessment of the character of the Powells for the purposes of s 501.  Rather, it has weighed the seriousness of their misconduct against mitigating factors and seems to have decided that the former outweighed the latter.  In addition, it has referred “as a primary consideration” to the proposition that immigration fraud of the magnitude and nature in which the Powells engaged “should not be allowed to benefit the perpetrators except in the most compelling circumstances”.  In particular the Tribunal referred to the risk that Australia’s immigration laws and policies would be brought into disrepute and likely to encourage others to “jump the queue” by trying similar illegal schemes if the Powells were to be granted visas.  Now these may be matters relevant to the exercise of the discretion that arises under s 501 where a determination has been made that an applicant for a visa is not of good character.  But the Tribunal’s reasons do not expressly or by necessary implication make clear that it was forming an assessment of their character and then proceeding to the exercise of discretion.

I accept that a finding that the Powells were not of good character for the purposes of s 501(2) is open on the facts.  But there is a contrary possibility particularly having regard to the remarks of Lee J in Irving, cited earlier in these reasons.  Character may be a little like curates egg and an assessment of whether an applicant is not of good character in the context of an application for a visa must have regard to the public purposes to be served by an adverse finding.  In addition it is not sufficient in my opinion for the decision-maker to simply determine under s 501 that a person is not of good character and then move on to consider other discretionary considerations.  The nature of the moral deficiencies of persons which justify a view that they are not of good character may be infinite in their range.  The want of good character in persons convicted of offences against the person or dealing in addictive drugs may be very different in kind from that of persons who have lied in order to get into the country.  And the quality of the character found not to be good will be relevant to the exercise of the discretion which remains after that finding is made by the decision-maker under s 501. 

In my opinion the Tribunal has failed, either expressly or by necessary implication, to address the question which it was required to answer.  In that respect it has erred in law and the application must be remitted to it for reconsideration according to law.

Having regard this conclusion, it is unnecessary to consider the ground of review based on the alleged inadequacy of the Tribunal’s reasons for decision.  The error of law in this case, in my respectful opinion, appears to have gone to the substance of the Tribunal’s reasoning and not merely to its expression. 

The Remaining Grounds

In my opinion the grounds of review relating to the evidence of the psychologist, Beaton, the evidence of Derrick Bartlett-Smith and the risk that the Powells would separate if required to return to England invite exploration of factual issues which is beyond the proper function of the Court in the exercise of its judicial review jurisdiction.  The complaints of failure to give adequate reasons are closely linked to these factual challenges.  I am satisfied that except to the extent that I have identified, the reasons given by the Tribunal were sufficient to meet its obligations under s 43(2) of the Administrative Appeals Tribunal Act. 

Conclusion

For the above reasons the application will be allowed, the decision of the Tribunal affirming the Minister’s decision set aside and the matter remitted to the Tribunal for reconsideration according to law.  I am reluctant to direct the matter be remitted to the Tribunal differently constituted.  The hearing before the Tribunal in this case was lengthy.  No doubt, however, the matter can be disposed of more expeditiously on facts which should be to a significant degree agreed.  Given the strength of views expressed by the Deputy President and the need now to explicitly address the question of good character afresh and, as it stands at the time that the matter comes back before the Tribunal, it is appropriate that the matter be dealt with before a Tribunal differently constituted.  There will be orders accordingly and the second respondent is to pay the applicants’ costs of the application.

Associate:

Dated:              20 November 1998