FEDERAL COURT OF AUSTRALIA

Jia Le Geng v Minister for Immigration & Multicultural Affairs [1999] FCA 951

MIGRATION - an appeal from a dismissal of a single judge for judicial review - reviewable decision of the Minister for Immigration and Multicultural Affairs (“the Minister”) to cancel the appellant’s transitional (permanent) visa (class 816) and declare him an excluded person - discussion of “good character” and its relationship with criminal convictions - whether the decision was affected by actual bias - consideration of the Minister’s powers under s 501 and s 502 of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss 475, 476, 476(1)(f), 476(1)(e), 60(1), 501, 502

Taxation Administration Act 1953 (Cth) s 8WB(1)(b)

Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) s 180

Administrative Appeals Tribunal Act 1975 (Cth)

Gunner v Minister for Immigration and Multicultural Affairs (Sackville J, unreported, 19 December 1997) cited

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 Appl

Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 Cited

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Appl

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Appl

Singh v Minister for Immigration and Ethnic Affairs (1996) FCA 902 Appr

R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Cited

R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 Cited

Re Shaw; ex parte Shaw (1980) 55 ALJR 12 Cited

Lynch v Minister for Human Services (1995) 39 ALD 501 Cited

Riddel v Department of Social Security (1993) 114 ALR 340 Cited

Galea v Galea (1990) 19 NSWLR 263 Cited

Irving v Minister of State Immigration Local Government and Ethnic Affairs (Davies, Lee and R D Nicholson JJ, unreported, 30 July 1996) Cited

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 649 Dist

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 Appl

Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, unreported, 18 October 1996) Cited

Ex parte Hoyts Corporation (1994) 119 ALR 206 Dist

R v Kent Police Authority; ex parte Gowen [1971] 2 QB 662 Appl

R v Watson (1976) 136 CLR 248 Cited

Warren v Coombs (1979) 142 CLR 531 Cited

Jones v Dunkel (1959) 101 CLR 298 Cited

Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431 Appr

Re JRL; ex parte CJL (1986) 161 CLR 342 Cited

Re R v Watson; ex parte Armstrong (1976) 136 CLR 248 Cited

Re Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224 Cited

Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 Dist

Livesey v New South Wales Bar Association (1983) 151 CLR 288 Cited

Durairajasingham v Minister for Immigration and Ethnic Affairs (Davies J, unreported, 11 November 1997) Cited

Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 cited

Irving v Minister for State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Appl

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 Appl

Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91 Appl

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 Appl

Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 Cited

Khadem v Barbour, Senior Member of the Administrative Appeals Tribunal (1995) 38 ALD 299 Cited

Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 Cited

Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537 Cited

JIA LE GENG v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

NO WAG 85 OF 1998

SPENDER, COOPER AND RD NICHOLSON JJ

BRISBANE (HEARD IN PERTH)

15 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 85 OF 1998

On appeal from a judge of the Federal Court of Australia

BETWEEN:	JIA LE GENG Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SPENDER, COOPER AND R D NICHOLSON JJ
DATE OF ORDER:	15 JULY 1999
WHERE MADE:	BRISBANE (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The appeal be allowed and the orders appealed from be set aside.

2. The decision of the respondent of 10 June 1997 pursuant to s 501 of the Migration Act 1958 (Cth) to cancel the appellant’s transitional (permanent) visa and to declare him to be an excluded person in accordance with s 502(1) of the said Act be set aside.

3. The respondent pay the appellant’s costs of and incidental to the appeal together with his costs of and incidental to the proceedings at first instance to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 85 OF 1998

On appeal from a judge of the Federal Court of Australia

BETWEEN:

JIA LE GENG

Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES:	SPENDER, COOPER & R D NICHOLSON JJ
DATE:	15 JULY 1999
PLACE:	BRISBANE (heard in Perth)

REASONS FOR JUDGMENT

SPENDER J:

1 I have had the advantage of reading in draft form the reasons for judgment of R D Nicholson J. I agree with them.

2 However, since I disagree with the primary judge as to the existence of actual bias, and am of the view that the Minister’s decision to cancel Mr Jia’s visa, (and to include as part of the decision a certificate declaring Mr Jia to be an excluded person) was induced or affected by actual bias, being the ground of review specified in s 476(1)(f) of the Migration Act 1958, I wish shortly to state my reasons for reaching that conclusion.

3 It is necessary to set out in some detail the factual background to the Minister’s decision. What follows is taken from the recitation by the primary judge.

4 Jia Le Geng is a Chinese national who arrived in Australia on a student visa on 17 August 1991. On 12 September 1991 he applied for refugee status in Australia and for a Domestic Protection (Temporary) Entry Permit (784). On 30 November 1992 a delegate of the Minister for Immigration, Local Government and Ethnic Affairs (as he was then designated) refused Mr Jia’s application for refugee status. Mr Jia applied for review by the Refugee Status Review Committee of that decision and following a recommendation from the Committee on 17 March 1993 the Minister’s delegate again determined on 17 May 1993 that he was not a refugee.

5 On 8 September 1993 Mr Jia was detained in custody under the Migration Act 1958 (Cth) as an illegal entrant and on 9 September 1993 requested an extension of time to lodge an application for an entry permit/reconsideration/review. He was released from custody on conditions including employment restrictions and a bond of $5,000 on 20 September 1993. He sought a review by the Minister of the refusal of his refugee status application. On 24 September 1993 a delegate of the Minister ordered that he be deported from Australia pursuant to s 60(1) of the Act. In October 1993 Mr Jia undertook employment under a false name, and on 19 October 1993 was taken into custody for breaching a condition of his release in relation to employment. The $5,000 bond was forfeited. He was charged with breaches of the Migration Act 1958 (Cth) and the Taxation Administration Act 1953 (Cth).

6 On 1 November 1993, the Minister made a statement in relation to Chinese nationals in Australia announcing special criteria for permanent entry permits (here referred to as Special Entry Permits). On 19 November 1993 a Custody Review Officer of the Department of Immigration and Ethnic Affairs decided that Mr Jia met threshold criteria for an application for a Special Entry Permit. He was released from custody on his undertaking to abide by conditions of release.

7 In December 1993, Mr Jia was arrested and charged with offences of sexual assault and deprivation of liberty of a woman, You Li, with whom he had previously had a relationship. While awaiting trial on these charges he was convicted on 11 January 1994, in respect of the earlier illegal employment, of performing work while an illegal entrant without permission contrary to s 83(2) of the Act. He was also convicted in relation to that matter, of using another person’s tax file number in a manner connecting it with that person’s identity contrary to s 8WB(1)(b) of the Taxation Administration Act 1953 (Cth). He was fined $600 and costs in relation to the convictions but served a period in custody in lieu of paying the fines.

8 On 18 February 1994 Mr Jia was granted permission to work in Australia. In April 1994 he applied for a Special Entry Permit. On 11 August 1994 he was advised by the Department of Immigration and Ethnic Affairs that he had been granted a Processing Entry Permit allowing him to maintain his legal immigration status in Australia whilst his substantive application for a Special Entry Permit was processed.

9 In February 1995, Mr Jia was brought to trial on the charges laid against him in December 1993. He was convicted after trial on four counts. They were, in substance, as follows:

1. That on 21 November 1993 at Northbridge he unlawfully assaulted You Li and thereby did her bodily harm.

2. That on 29 November 1993 at Wembley he unlawfully detained You Li.

3. That on 30 November 1993 at Wembley he made a threat to unlawfully harm You Li.

4. That on 30 November 1993 he sexually penetrated You Li.

10 He was sentenced to a total of six years and three months after credit for three months spent in custody at the Canning Vale Remand Centre. On the sexual penetration charge he was sentenced to four years and nine months, after allowing credit for time spent in custody. On the charge of threatening to do unlawful harm he was sentenced to one and a half years, cumulative on the sentence for sexual penetration. On the unlawful detention charge he was sentenced to one and a half years, which was made concurrent with the other sentences, and on the charge of unlawful assault he was sentenced to twelve months imprisonment, also concurrent with the other sentences.

11 Something of the nature of the offences can be gleaned from the remarks of the sentencing judge, Walsh J in the Supreme Court of Western Australia:

“It is clear from the evidence adduced before the jury that you had an association with You Li during 1993 which developed initially into one of love and affection between both of you. Subsequently, however, it became clear on the evidence that You Li determined that she no longer wished to continue with the relationship. It’s apparent that difficulties had been caused over, amongst things, (sic) gambling and moneys said to have been taken and no doubt your emotional state was compounded by worry over immigration and by two periods of detention.

Be that as it may, in my view you became obsessed with her and were not prepared to accept her choice to not have anything further to do with you. Against that background you detained her in the flat, threatened to harm her and sexually penetrated her. In relation to the sexual penetration, whilst you did not inflict any injury to her as such, nonetheless that does not mitigate your actions having regard to the fact that you obtained her consent, to use the word “consent” in an inept way, by reason of a threat. “By consent” - I withdraw that; “submission” would be the more appropriate word - by reason of the threat that you made to her, and I accept that she was in genuine fear of you.”

Walsh J later said:

“Having said that, there is much in your background to your credit. You were educated in China and obtained a degree, you came to this country as a refugee and it is clear that within the limits of your capabilities you worked hard and endeavoured to make this country your home.

I have emphasised that you were under a great deal of emotional strain at the time by reason of the difficulties you had with immigration, compounded with the obsessive attitude you had to your former partner. Having said all that, at the end of the day I am still required to impose a substantial custodial sentence. However, because of the particular circumstances of this case, I impose a sentence which I would have thought is at the lower end of the scale for these types of offences.”

12 Mr Jia appealed against the convictions to the Western Australian Court of Criminal Appeal and on 4 August 1995 the appeal was dismissed.

13 On 18 August 1995 a delegate of the Minister refused Mr Jia’s outstanding application for a Special (Permanent) Entry Permit. Mr Jia applied to the Migration Internal Review Office for a review of that decision. Following review, on 22 November 1995, his case was reassessed, and on 1 December 1995 a delegate of the Minister refused to grant him a Transitional (Permanent) Visa or a Resident Return Visa. Mr Jia then applied to the Administrative Appeals Tribunal for a review of the decision. His application was made on 8 January 1996 and the hearing proceeded before Deputy President Barnett on 25 and 26 June 1996.

14 On 23 July 1996 the Tribunal set aside the decision under review and remitted it to the Minister with a direction that Mr Jia qualified for obtaining a Transitional (Permanent) Visa on the basis that he was a person of good character.

15 In his decision, the Deputy President said, applying Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 that the Tribunal did have the power to consider the circumstances surrounding the commission of an offence for the purpose of determining what weight and gravity should be attributed to the conviction, as one of the relevant factors in assessing whether an applicant for a visa was “of good character” for the purposes of the Migration Act 1958.

16 I interpolate that, relevant to the question in this case of whether recent conviction for serious crime established that the person was not of good character, Fisher and Lockhart JJ observed in Minister v Daniele 39 ALR 649 at 653:

“There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.”

And later:

“We agree that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community. However, we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to attempt to introduce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel.”

17 The Tribunal made a detailed enquiry as to the circumstances of the relationship between Mr Jia and You Li. The Tribunal did not accept You Li as a witness of credit. The conclusion of the Tribunal was that Mr Jia’s past criminal conduct was all related to one stage of his relationship and did not indicate a long term tendency to violence, criminal conduct, or antisocial sexual behaviour. The Tribunal noted that excellent character evidence was given for him by “an impressive cast of witnesses”.

18 Despite the fact that Mr Jia had been convicted of serious offences, after considering all the circumstances of his past criminal conduct and viewing it in the light of all the other evidence relating to his character, the Tribunal was not satisfied that he was a person who was not of good character as that phrase is used in s 501 of the Migration Act. Having made that assessment the Tribunal set aside the decision under review and remitted the matter to the Minister with a direction that Mr Jia qualified for a Transitional (Permanent) Visa on the basis that he was of good character.

19 The Minister appealed to the Federal Court from the Tribunal’s decision. On 20 December 1996 Carr J ordered the decision to be set aside and remitted to an identically constituted Tribunal for further consideration. The basis of his decision however was limited to a finding that in certain respects the Minister was denied procedural fairness.

20 His Honour found there was nothing in the Tribunal’s reasons to suggest that it had misdirected itself about the meaning of “good character” or that it had approached the task of considering whether it was satisfied that Mr Jia was not of good character in any manner inconsistent with what was said by the Full Court in Irving v Minister of State for Immigration Local Government and Ethnic Affairs (Davies, Lee & R D Nicholson JJ, 30 July 1996, unreported).

21 On 14 March 1997 on the remittal of the matter to the Tribunal, Deputy President Barnett, in accordance with the findings of Carr J that there had been two elements of procedural unfairness, heard further evidence. The Tribunal came to the same conclusions and again set aside the decision under review and remitted the matter to the Minister, with the direction that Mr Jia qualified for obtaining a Transitional (Permanent) Visa on the basis that he was of good character. In that month also Mr Jia was released on parole.

22 On or about 14 April 1997, officers of the Department of Immigration and Multicultural Affairs prepared a background brief for the use of the Minister as required.

23 It was an agreed fact between the parties in these proceedings that at the time the background brief was prepared, the Minister held the following opinions:

1. That most Australians would find it difficult to reconcile a 6 and a half year jail sentence for rape with a finding by a Deputy President of the Administrative Appeals Tribunal that the person concerned is of good character.

2. That “this latest AAT decision has essentially rejected the court’s finding of culpability by finding Mr Jia’s behaviour leading to the offences justifiable because of the rape victim’s conduct towards him and his own reasonable or unreasonable feelings of jealousy”.

3. That “the government is concerned about the emerging trends for tribunals to discount the importance the government attaches to character issues”.

24 It was agreed between the parties that the Minister did not publicly express those opinions.

25 On 14 April 1997 the Minister was interviewed on Radio 2GB by a Clive Robertson, in the course of which interview the Minister said:

“I’m very unhappy about the way in (sic) the Administrative Appeals Tribunal has been dealing with numbers of matters involving the Immigration Department in the way in which these discretions have been exercised by members of the Tribunal.

Well, I’ve asked the Joint Committee on Migration of the Parliament to look at the whole question of criminal deportation as to ways and means in which we can strengthen the provisions to have them operating as they, I believe, they were originally intended and as, I think, the public would expect them to operate.”

Asked by Mr Robertson whether it was written down anywhere exactly what a person of good character is, the Minister answered:

“What we are looking at here is the commission of offences. I don’t believe you are of good character if you’ve committed significant criminal offences involving penal servitude. The law does actually write down that that is the test and it adds another test, of course - we used it in the case of Adams from the Sinn Fein organisation - if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character.”

[emphasis added]

Asked by Mr Robertson what power he had to overturn the Tribunal’s decision and whether he could ask for a report or appeal, the Minister answered:

“I’m considering what steps I can take and there are some avenues. One of the suggestions that’s been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential cost might be to the community if it opens up a whole host of other possible appeals to the Federal Court.”

[emphasis added]

26 On 15 April 1997 a “protective” appeal was lodged by the Minister with the Federal Court against the decision of the AAT.

27 On 23 April 1997 the Assistant Secretary of the Department’s Migration and Temporary Entry Branch, Mr Rizvi, sent a minute to the Minister setting out options for action following the AAT decision about Mr Jia. Options put to the Minister were:

1. To further appeal to the Federal court on matters of law; or

2. To proceed to visa grant but for you then to decide to intervene and personally cancel the visa under section 501 of the Migration Act on the basis that Mr Jia is not of good character; or

3. To accept the AAT’s decision and finalise the assessment of Mr Jia’s application.

28 It is significant that the second option was not expressed as being “To proceed to visa grant but for you then to decide to intervene and personally decide whether to cancel the visa under section 501 of the Migration Act on the basis that Mr Jia is not of good character;”.

29 In further discussion of the options and in particular the option of granting the visa and then cancelling it, the minute said:

“In any litigation arising from decisions by you to cancel Mr Jia’s visa and to declare him an excluded person, you could be called to give evidence and be subject of close scrutiny. You could well be called upon to give evidence about your views as to Mr Jia’s character and be subject to cross-examination about the justification of your decisions and to rebut any possibility of grounds of bias or improper purpose being made out.”

30 On 30 April, the Minister had sent to Justice Jane Mathews, President of the AAT, a letter. This letter, which in terms is quite extraordinary, but which appears to be in response to a letter by the President to the Minister concerning remarks attributed to the Minister in the Daily Telegraph, is important to the resolution of the issue of bias. Of relevance in that letter are the following extracts:

“As published in The Daily Telegraph, I am concerned about a number of recent decisions made by the AAT allowing convicted offenders to remain in Australia….

…

There have been two recent decisions by the AAT of decisions refusing a visa on the basis of character, involving Mr Jia and Mr Ram which raised concerns about the adequacy of current legislative powers to refuse visas and the application of those provisions.

In the case of Mr Jia, the Tribunal member appears to have confused the fact that decisions made under s 501 involves (sic) a two-step consideration. The first is to determine if the person is, or is not of good character. If determined not to be of good character, second (sic) determination is whether to exercise the discretion to refuse to grant (or cancel), the visa. The Tribunal finding was that Mr Jia is of good character, and thus eligible for a visa. The Tribunal incorrectly exercised the discretion under s 501 to grant him a visa, despite Mr Jia’s sentence to six and half years imprisonment. Before the discretion at s 501 is exercised the person must first be determined to not be of good character, and this was not the case when the AAYT purported to exercise the discretion in favour of Mr Jia. The Tribunal incorrectly exercised the discretion under s 501 to grant him a visa.

That persons such as Mr Jia can be found to be of ‘good character’, despite his recent conviction for a serious crime undermine (sic) the Government’s ability to control entry into Australia on character grounds. I am concerned that this may set a precedent for decisions by the AAT in the future. To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations. Although I recognise that AAT decisions are not precedential, as a matter of law, such decisions may be viewed by the Tribunal and officers in determining the character requirements under s 501 as the acceptable standard. It would the (sic) undermine the government’s desire to protect the Australian community.

…

I acknowledge that the AAT is an independent Tribunal, which must satisfy itself of the correct and preferable decision on the merits. However, it is difficult to maintain public confidence in the Government’s ability to control entry into Australia in the face of decisions like that taken in Mr Jia’s case, or where those who have been allowed to remain, following the AAT’s overturning of the Government’s decision to deport, have re-offended within a fairly short period of time of the AAT’s setting aside of the deportation order.

…

The community’s expectations of the Government to prevent entry or remove or deport will not be met if the Tribunal overturns the Government’s decisions in relation to those who are not of good character or have committed serious crimes. The recent decisions of non-citizens convicted of serious criminal offences who have had their deportation orders overturned, as well as decisions to overturn the refusal of visas on character grounds, have heightened community concerns especially where a number of these have re-offended. The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia.”

31 On 27 May the Minister discontinued the appeal to the Federal Court. On 4 June Mr Jia wrote to the Department arguing against cancellation of his visa. On 16 June, Mr Rizvi sent a minute to the Minister. The minute was to submit for the Minister’s consideration:

“

· the question whether you are satisfied that Mr Jia is not of good character, and if you so decide, the question of whether you wish in the exercise of the discretion under s 501, to cancel Mr Jia’s permanent visa;

· if you intend to cancel Mr Jia’s permanent visa, the question whether you wish to exercise the discretion under s 502 to declare Mr Jia to be an excluded person.”

The minute then outlined the background facts of Mr Jia’s history including the convictions and his unsuccessful appeal. It quoted the appeal court’s comment that the sentence imposed for the rape conviction was “a very moderate sentence” and that the sentences imposed for the other convictions were also “moderate”. It outlined the matters which had been put in material submitted by Legal Aid WA on behalf of Mr Jia and by Mr Jia himself. This list of matters appeared to be comprehensive. The AAT’s reasons for decision on 26 July 1996 and 14 April 1997 were an attachment to the minute. The minute noted that in relation to his past criminal record the following comment was made:

“Mr Jia was sentenced to 6 1/2 years imprisonment following his conviction on several charges involving offences against the person. The convictions and sentences imposed were upheld on appeal;

- these offences which occurred several weeks after he had been released from immigration custody, were found by the AAT to have been committed in mitigating circumstances and to have been out of character;

- however, related argument was unsuccessfully presented to the WA Court of Appeal which upheld the convictions and the sentences imposed by the WA Supreme Court.”

32 The primary judge noted that the reference to “related argument being unsuccessfully presented to the WA Court of Appeal” may be based upon a misconception of the function of the Court of Criminal Appeal in an appeal against a jury verdict. The role of the AAT, as was made explicit in its reasons, was not to decide whether Mr Jia had been rightly convicted but rather whether the circumstances of his conviction indicated that he was a person who was not of good character for the purposes of the Migration Act and the relevant regulations.

33 The minute referred also to Mr Jia’s disregard for the law as reflected in his criminal record in the convictions (subject to guilty pleas) for having worked in Australia without authority and for having used another person’s tax file number. As the primary judge noted:

“It is difficult to relate this position taken in the departmental minute to the Minister, with the position taken on behalf of the Minister before the AAT where the convictions relating to illegal work and the use of a false name were not advanced as factors relevant to good character. And yet emphasis was placed upon these matters again in the submission to the Minister where he was invited to consider that the offence of working without authority was ‘a premeditated breach of a condition of his release from immigration custody and in direct defiance not only of counselling by departmental officers with the assistance of an interpreter prior to his release that he was not to do so, but also of an undertaking by him that he would abide by that and other conditions’.”

34 In the minute Mr Rizvi also invited the Minister in exercising his discretion whether to cancel Mr Jia’s visa, to take into account the fact that he had formed a substantial relationship with several Australian citizens and that his departure upon cancellation of the visa would adversely impact on them. It noted that the AAT had twice found him to be of good character and to meet the requirements of a Transitional (Permanent) Visa and that he had received strong and continuing support from Australian citizens and residents who know him. It also said that he would experience “loss of face and some hardship” if required to depart Australia if the Minister were to cancel his permanent visa.

35 At paragraph 18 of the minute it was said:

“If you are satisfied that Mr Jia is not of good character you must then decide whether to cancel his visa. It remains open to you to decide one way or the other after balancing the various factors to Mr Jia’s advantage (including any compelling or compassionate circumstances) and disadvantage.”

36 The minute then went on to consider the possibility of a ministerial declaration under s 502 that Mr Jia should be an excluded person. It referred to circumstances reflecting the apparent contempt and disregard by Mr Jia “not only for the immigration, and taxation laws which involve core national government functions, but also for the criminal law of WA (which is reflected in laws of other states and territories)”.

37 While the minute leaned in favour of cancellation of the visa and the making of a declaration under s 502, the recommendation to the Minister was in the following terms:

“That you:

(a) determine whether for the purposes of exercising the power to cancel a visa under s 501 of the Act, that Mr Jia is or is not of good character;

(b) determine whether, if you decide he is not of good character, to exercise the discretion under s 501 to cancel or not to cancel Mr Jia’s visa;

(c) determine whether the circumstances leading to a decision to cancel his visa are so serious that it is in the national interest that Mr Jia be declared to be an excluded person under s 502; and

(d) sign a certificate (at Attachment D) declaring Mr Jia to be an excluded person, if you decide to cancel Mr Jia’s visa and declare him to be an excluded person.”

38 The Minister’s decision dated 10 June 1997 was endorsed on an attachment to the minute. The decision was in three parts:

“(a) Mr Jia is not of good character - agreed

(b) Discretion to cancel Mr Jia’s visa - exercised

The appeal

39 This appeal was commenced on 16 June 1997. The central question is whether the decision of the Minister that Mr Jia is not of good character, resulting in the exercise of the discretion to cancel Mr Jia’s visa, is a decision made by the Minister that was induced or affected by actual bias.

40 It is unnecessary to refer to the authorities helpfully mentioned by R D Nicholson J in his reasons for judgment. In my opinion, the test is plain. A decision-maker is biased if the decision-maker has made up his or her mind on the matter to be decided. If a decision-maker has prejudged the matter, a decision giving effect to that prejudgment is a biased decision.

41 Actual bias is not made out if the decision-maker holds a view that is provisional or qualified. However, if the position in this case was that the Minister had formed the view that Mr Jia was of bad character or had formed the view that persons convicted of serious crime were of bad character, his decision of 10 June 1997 that Mr Jia was of bad character was a decision that was affected by actual bias. If the Minister was of the view that a person might be of good character, notwithstanding “a recent conviction for a serious crime”, and then, on a consideration of Mr Jia’s case, concluded he was not of good character, then that decision would not be affected by actual bias.

42 In this case, it is not that the Minister has expressed a qualified view, namely that generally persons convicted of serious crime were of bad character so as to permit the possibility that in the circumstances that apply in a particular case, the general proposition might not apply.

43 The conclusion of the primary judge is that:

“In my opinion the evidence points to the Minister having formed ‘on the basis of Mr Jia’s convictions and sentence, a view strongly adverse to the conclusion that he could be described as a person of good character’.”

44 In my respectful opinion, this conclusion crucially misstates the view of the Minister. The Minister’s view was not simply “strongly adverse to the conclusion that he could be described as a person of good character”. His view, prior to making the decision of 10 June 1997, was that Mr Jia was a person of bad character, because his view was that persons with a recent conviction for a serious crime could not be a person of good character.

45 I reach this conclusion based on the Minister’s own statements and, in particular, the statement in the letter of 30 April “That persons such as Mr Jia can be found to be of ‘good character’, despite his recent conviction for a serious crime undermine (sic) the Government’s ability to control entry into Australia on character grounds.”

46 The primary judge also stated:

“While it is clear that the Minister had strong views about Mr Jia’s case, I am not satisfied that those views precluded him from the consideration of all the relevant circumstances so as to constitute actual bias inducing or affecting the decision within the meaning of s 476(1)(f).”

47 Again, it is not simply a case that the Minister had strong views about Mr Jia’s case: the position was that the Minister’s statements reveal his view that Mr Jia was a person of bad character, the Minister believing that persons convicted of serious crime were persons of bad character. Nothing could be plainer evidence of the true view of the Minister than his statement in the radio interview:

“I don’t believe you are of good character if you’ve committed serious criminal offences involving penal servitude.”

48 This is not an expression of a preliminary view, capable of alteration, nor the statement of a general rule subject to exception in the particular circumstances of a case.

49 There is nothing to suggest that the Minister did not believe what he said he believed. All the evidence points to the conclusion that the view of the Minister was that persons convicted of serious crime were persons not of good character. That view is reflected in many of the statements of the Minister and was at no stage resiled from or recanted. In my opinion, the Minister had a closed mind to the precise issue in question.

50 The element of prejudgment in the Minister’s decision resides in his belief that, if a person has committed serious criminal offences involving penal servitude, that person is not of good character. In the radio interview, after the statement “I don’t believe you are of good character if you’ve committed serious criminal offences involving penal servitude”, the Minister said:

“The law does actually write down that that is the test and it adds another test, of course - we used it in the case of Adams from the Sinn Fein organisation - if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character.”

These statements show that the Minister’s understanding of the first factor, concerning criminal conduct, is wrong, but that his second test, in the case of association with another person or a group or organisation, accords with the Act.

51 It is important in this context to have regard to the terms of s 501(2):

“This subsection 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.

52 It is simply not the case, as the Minister said was the case, that the test the law “actually writes down” is that you are not of good character if you have committed significant criminal offences involving penal servitude. Subsection 501(2) does not equate significant past criminal conduct with the absence of good character. That was the view of the Minister. That view is wrong. That view means that the Minister’s decision that Mr Jia was not of good character is affected by actual bias.

53 The conclusions thus expressed are consistent with other statements made by the Minister in the letter sent to the President of the Administrative Appeals Tribunal. The statement:

“To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations”

is a reference, by the word “this”, to the finding by the Tribunal that Mr Jia was of good character despite his recent conviction for a serious crime. What the Minister is saying is that the finding that Mr Jia is of good character despite his recent conviction, requires condemnation.

54 The statement:

“The significance of these two cases is that they show that the AAT has on occasion misconstrued the tests involved in character decisions.”

amongst other things is a direct reference to Mr Jia, and is an assertion that the finding that a person with a recent conviction for a serious crime can be held to be a person of good character involves a misconstruction of the tests involved in character decisions.

55 What truly is the view held by the Minister is confirmed by the statement:

“The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia.”

[emphasis added]

This statement makes it clear that the Minister’s view is that persons who have committed serious crimes (“criminals”) do not, and can not, satisfy the criteria for permission to remain in Australia. The Minister’s view quite plainly is that, if a person has a recent conviction for serious crime, that person is not a person of good character: the establishment of the first proves the second.

56 In my respectful opinion, therefore, bias is established by the Minister’s own words.

57 In the letter of 30 April 1997, the Minister wrongly criticised the Tribunal. The Minister said:

“The Tribunal finding was that Mr Jia is of good character, and thus eligible for a visa. The Tribunal incorrectly exercised the discretion under s 501 to grant him a visa, despite Mr Jia’s sentence to six and half years imprisonment.”

The Tribunal did not exercise a discretion under s 501 “to grant him a visa”. The decision which was the subject of the review by the Tribunal was a decision by a delegate of the Minister dated 1 December 1995 which determined that the applicant’s application for a Transitional (Permanent) Visa be denied pursuant to s 501 of the Migration Act 1958. Section 501(1) relevantly provides:

“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

…”

Subsection (2) has earlier been set out.

58 The conclusion of the Tribunal was that subsection (2) did not apply to Mr Jia. Therefore the decision to refuse to grant him a Transitional (Permanent) Visa was set aside. There is no discretion under s 501 to grant a visa to any person.

59 The primary judge said:

“The Minister’s criticism of the Administrative Appeals Tribunal related not just to the Jia case but was placed in a wider context of concern about his perception of a trend in Tribunal decision-making. He was entitled to make those observations and to draw them to the attention of the Tribunal President. In assessing the standards of behaviour required of the Minister it is important to bear in mind that he is not acting as a judge or tribunal but as an administrative decision-maker implementing government policy.

60 I respectfully disagree with these observations. Whatever the context, the Minister’s letter to the President of the Administrative Appeals Tribunal related directly to the decision in the Jia case. In my respectful opinion, the Minister, who is after all frequently one party to a hearing in the Administrative Appeals Tribunal, is not entitled to pressure the Tribunal into accepting his view, particularly one which is in my opinion so fundamentally mistaken. The Administrative Appeals Tribunal is supposed to be independent, and that independence is put seriously at risk if a Minister thinks and acts as if he is entitled to lobby the Tribunal to reach a conclusion which is his preferred (and in this case mistaken) view of the law.

61 I accept the correctness of the observations by Beaumont and Lee JJ in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, where their Honours said at 369:

“The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reached the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.”

62 In Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91, Franki J said, at 96-7:

“A majority consisting of Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes [(1979) 142 CLR 531], in a joint judgment dealt in detail with the nature of an appeal under s 75A(5) of the Supreme Court Act 1970 (NSW). The important question which arose in that case was, what is the duty of an appellate court in relation to inferences to be drawn from facts found by the trial judge where no question of credibility is involved?

At p 423 of the joint judgment Gibbs ACJ, Jacobs and Murphy JJ said: ‘There is, in our respectful opinion, no authority that entitles us to depart from the doctrine expounded in this court in cases before and including Paterson v Paterson [(1953) 89 CLR 212] and in the House of Lords in Benmax v Austin Motor Co Ltd [[1955] AC 370]. The balance of opinion in cases since Edwards v Noble [(1971) 125 CLR 296] inclines in favour of adherence to that doctrine. Shortly expressed, the established principles are, we think that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.’

A little later the judgment continues: “Again, with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purposes of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself.’

Later still the judgment continues: ‘In the present case, the Court of Appeal was, and this court is, obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge.’ ”

And at 102, Franki J said:

“…However, at least since the clarification of the law in Warren v Coombes, supra, it is clear that this court should reach its own conclusion as to the proper inferences to be drawn from the primary facts.”

Northrop J said at 110:

“Under s 24 Federal Court of Australia Act 1976, a Full Court of the Federal Court has jurisdiction to hear and determine appeals from judgments as defined in s 4 of the Act. The appeal is an appeal properly so called and is not limited to an appeal on a question of law, see for example McCormack v FC of T (1979) 23 ALR 583. On an appeal, the Full Court should apply the principles stated in Warren v Coombes (1979) 23 ALR 405. In this regard, I adopt, with respect, the reasons expressed by Franki J in his reasons for judgment herein.”

63 In my respectful opinion, the Minister, prior to making his decision of 10 June 1997 and at that time, sincerely held the view that a person is not of good character if that person has committed significant criminal offences involving penal servitude. As the Full Court, Burchett, Branson and Tamberlin JJ said in Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 141:

“It is not conceivable that the 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’.”

64 In my respectful opinion, the Minister’s decision was affected by actual bias.

65 The appeal should be allowed and the decision of the respondent of 10 June 1997 to cancel the appellant’s visa and to declare him to be an excluded person should be set aside. The respondent should pay the appellant’s costs, to be taxed if not agreed.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

A/g Associate:

Dated: 15 July 1999

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 85 OF 1998

On appeal from a judge of the Federal Court of Australia

BETWEEN:

JIA LE GENG

Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:	SPENDER, COOPER AND R D NICHOLSON JJ
DATE:	15 JULY 1999
PLACE:	BRISBANE (HEARD IN PERTH)

REASONS FOR JUDGMENT

COOPER J

Background

66 The appellant is a Chinese national. He entered Australia on a student visa in 1991. His application for refugee status was refused on 17 May 1993. On 8 September 1993 he was detained under the Migration Act 1958 (Cth) (“the Act”) as an illegal immigrant. On 20 September 1993 the appellant was released from custody on certain conditions, including restrictions on employment and the provision of a bond of $5,000.

67 In October 1993 the appellant was taken into custody for breaching the employment condition attaching to his release. He was charged with using another person’s tax file number contrary to s 8WB(1)(b) of the Taxation Administration Act 1953 (Cth). He was also charged with performing work while an illegal immigrant without permission.

68 In consequence of a Ministerial statement announcing special criteria for permanent entry permits for Chinese nationals in Australia on 1 November 1993, the appellant was released from custody on 19 November 1993, as meeting the threshold criteria to make an application for a Special Entry Permit.

69 The appellant was arrested on 1 December 1993 and charged with having committed offences against Ms Li You including the offences of sexual assault and deprivation of liberty. He was released on bail. While on bail he pleaded guilty to the offences against the Act and the Taxation Administration Act 1953 (Cth). He was fined $600 and ordered to pay costs. In lieu of paying the fines he elected to serve a period of detention in custody.

70 On 18 February 1994 the appellant was granted permission to work in Australia pending consideration of his eligibility for a Special Entry Permit, which permit he applied for on 5 April 1994.

71 The appellant, after trial by jury, was convicted on 10 February 1995 of four of the offences with which he had been charged in December 1993. Those convictions were for :

(i) one count of assault occasioning bodily harm;

(ii) one count of unlawful detention;

(iii) one count of making a threat to do unlawful harm;

(iv) one count of sexual penetration without consent.

72 The appellant was sentenced to a total period of imprisonment of 6½ years. On 4 August 1995 the Western Australian Court of Criminal Appeal dismissed the appellant’s appeal against conviction.

73 On 1 December 1995 the delegate of the Minister determined that the appellant’s application for transitional (permanent) visa (Class 816) should be refused on the ground that the appellant was not of good character pursuant to s 501 of the Act. On 8 January 1996 the appellant applied to the Administrative Appeals Tribunal (“the AAT”) for review of that decision. The AAT set aside the decision under review and remitted the matter to the respondent with a direction that the appellant qualified for a transitional (permanent) visa on the basis that he was of good character. Upon appeal to this Court the decision of the AAT was set aside and the matter was remitted to the AAT for further consideration. On 14 March 1997 the AAT, as previously constituted, ordered that the decision under review be set aside and remitted the matter to the respondent with a direction that the appellant “qualifies for obtaining a transitional (permanent) visa on the basis that he is of good character”. The respondent appealed to this Court seeking that the second determination of the AAT also be set aside. However that appeal was discontinued on 27 May 1997 after the appellant was granted a transitional (permanent) visa (Class 816) on 23 May 1997.

74 On 10 June 1997 the respondent determined to cancel the appellant’s residence visa under s 501 and declared the appellant to be an excluded person pursuant to s 502 of the Act.

75 The appellant sought review of the decision by application filed on 16 July 1997.

76 On 1 July 1998 the application was dismissed by French J and the appellant ordered to pay costs. The appellant appealed against the orders of French J on 7 July 1998.

The Appeal

77 The grounds of the appeal are :

“(a) His Honour erred in law in determining that the Respondent’s decision dated 10 June 1997 to cancel the Applicant’s residence visa on the grounds that he was not of good character was authorised by Section 501 of the Migration Act in circumstances where on the same relevant facts the Administrative Appeals Tribunal had determined that the Applicant was of good character for the purposes of an application by the Applicant for such residence visa.

(b) His Honour erred in law in determining that the Respondent’s said decision on 10 June 1997 was not for an improper purpose in circumstances where it had the effect of, and was designed to have the effect of, overturning the decision of the Administrative Appeals Tribunal on 14 March 1997.

(c) Despite His Honour’s finding that the Respondent had formed, on the basis of the Applicant’s convictions and sentence, a view strongly adverse to the conclusion that the Applicant could be described as a person of good character, at a time prior to the Minute of 6 June 1997 being sent to the Respondent for him to consider cancellation of the Applicant’s residence visa, His Honour erred in law in determining that the Respondent’s said decision of 10 June 1997 was not affected by actual bias.

(d) His Honour erred in law in determining that in order to show actual bias the Applicant had to establish that the Respondent’s prior views concerning the Applicant precluded the Respondent from considering all relevant circumstances.

(e) His Honour erred in law in determining that the Respondent’s policy under the Respondent’s Procedures Advice Manual paragraph 8.52 was an unexceptional statement of policy and thereby by implication, compatible with the provisions of Section 501 of the Migration Act.

(f) His Honour erred in law in determining that the seriousness of circumstances giving rise to the making of a decision under Section 501 of the Migration Act and the question of the national interest thereunder were matters peculiarly for assessment by the Respondent.

(g) His Honour erred in law in determining that a matter which involved a dispute between the Respondent and the Administrative Appeals Tribunal as to whether or not the Applicant was a person of good character was a matter where the Respondent could decide that because of the seriousness of the circumstances giving rise to the making of a decision under Section 501 it was in the national interest that the person be declared to be an excluded person and thereby enable the Respondent to invoke the provisions of Section 502 of the Migration Act.

(h) His Honour erred in law in determining that there was material before the Respondent on which the Respondent could base a decision to declare the Applicant an excluded person pursuant to Section 502 of the Migration Act.”

Grounds (a) and (b)

78 The legal issue which arises under ground (a) in my view is foreclosed against the appellant by the decision of a Full Court of this Court (Heerey, Lindgren and Emmett JJ) in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 407 - 408. Once it is accepted that the respondent has the power under s 501 and s 502 to make the decision to cancel a visa and make the declaration notwithstanding the existence of a contrary decision of the AAT, the exercise of that power cannot of itself be the exercise of the power for an improper purpose (84 FCR at 408). Ground (b) must also fail.

Grounds (c) and (d)

79 Grounds (c) and (d) are based on s 476(1)(f) of the Act which provides that a judicially-reviewable decision may be reviewed in this Court on the ground “that the decision was induced or affected by fraud or by actual bias.”

80 For there to be actual bias on the part of a decision maker sufficient to justify disqualification, there must exist as a fact a mind so prejudged in favour of a conclusion already formed that the decision maker will not alter the conclusion irrespective of the evidence or arguments presented to him or her in respect of the very issue involved in the determination: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 91, 101; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (FC) at 123, 127; Singh v Minister for Immigration and Ethnic Affairs (1996) FCA 902 at 9.

81 Actual bias must be distinguished from apprehended or ostensible bias. A reasonable apprehension on the part of a reasonable bystander that the decision maker will bring an unfair or prejudiced mind to an inquiry or determination is insufficient to make out a case of actual bias. What must be established is that the decision maker has in fact prejudged the case so as to be unable or unwilling to decide it impartially: Sun at 127. What constitutes apprehended or ostensible bias is therefore an easier threshold to cross than that applicable to actual bias.

82 The fact that a decision maker has formed a conclusion about an issue involved in the inquiry does not constitute bias on the part of the decision maker: R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 554, 555); Re Shaw Ex parte Shaw (1980) 55 ALJR 12 at 14, 15; Laws at 91, 100; Sun at 123; Singh at 9. It must be shown that the decision maker is unwilling or unable to be persuaded out of any express or implied view before actual bias will be found. As a finding of actual bias requires a factual finding of a state of mind, it may be proved from the statements or conduct of the decision maker or as a matter of inference from such statements or conduct. Such statements and conduct, however, must be viewed in the context of the decision making process as a whole: Singh at 9; Galea v Galea (1990) 19 NSWLR 263 at 279.

83 The circumstances relied upon by the appellant before French J were :

(a) The appeals pursued by the respondent in this Court against the successive decisions of the AAT which appeals in each case included the ground that the AAT’s decision was so unreasonable that no reasonable decision maker could reach such a decision.

(b) The respondent’s personal and public criticism of the AAT in relation to its decision concerning the appellant on radio on 14 April 1997.

(c) The respondent’s personal involvement in the decision to proceed with a course of action which involved granting and then cancelling the appellant’s visa.

(d) The respondent’s clearly expressed (but mistaken) view of the law that the appellant having been convicted of a serious crime and imprisoned could not be a person of good character.

(e) The respondent’s criticism of the AAT’s decision in his letter to the President of the AAT dated 30 April 1997.

(f) The respondent’s decision to exercise the power given under s 502 to declare the appellant an excluded person.

(g) The failure of the respondent to give any personal evidence to this Court as to his state of mind.

84 In order to determine the issue of actual bias it was necessary to have regard to the totality of all of the respondent’s statements and conduct and to the relevant circumstances surrounding the making of the decision.

85 The radio statement referred to in paragraph (b) was made on 14 April 1997, which followed the decision of the AAT given on 14 March 1997. After referring to the decision and describing generally the role of the AAT and his dissatisfaction with the way in which the discretion as to good character was being exercised by members of the AAT, there followed an exchange between the radio interviewer (Robertson) and the respondent which included, in part :

“RUDDOCK:

Essentially, if people come here and they are not citizens of Australia and they commit serious criminal offences, we don’t regard them as being the sorts of people that we wanted to get through our Migration Program. We try to exclude criminals from coming in the door and we do have criminal deportation in relation to those that have come here. The sort of difficult cases are those where there may be compassionate circumstances that amount to particularly in relation to family members who are here and so on.

But what’s happened is that they seem to be overturning a very large number of cases and what you’d get from it is the development of a framework of law that my officials then have to follow in a wider number of cases. What disappoints me is that I think criminal deportation which was quite significant a number of years ago has come down to a point, I think, where now only about 40 or 50 people are in fact deported in any one year.

ROBERTSON:

And I assume, Mr Ruddock, that it’s the softening in a treatment of a case becomes the precedent for the next one, doesn’t it?

RUDDOCK:

That’s what happens and my officials are obliged to take those into account.

ROBERTSON:

Is it written down anywhere exactly what a person of good character is? Is it actually termed in law?

RUDDOCK:

What we are looking at here is the commission of offences. I don’t believe you are of good character if you’ve committed significant criminal offences involving penal servitude. The law does actually write down that that is the test and it adds another test, of course - we used it in the case of Adams from the Sein Fein organisation - if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character.

ROBERTSON:

What powers have you got to overturn this? Can you ask for a report? Can you appeal or what?

RUDDOCK:

I’m considering what steps I can take and there are some avenues. One of the suggestions that’s been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential cost might be to the community if it opens up a whole host of other possible appeals to the Federal Court.”

86 On 23 April 1997 the Assistant Secretary of the Department’s Migration and Temporary Entry Branch, Mr Rizvi, sent a minute to the respondent setting out the options which were open to the respondent, consequent upon the second AAT decision. Those options were :

1. To further appeal to this Court on matters of law;

2. The Department to proceed to grant the visa but for the respondent to intervene personally and cancel the visa under s 501 of the Act on the basis that the appellant was not of good character and further to exercise the power under s 502 of the Act to declare the appellant an excluded person;

3. To accept the AAT’s decision and finalise the assessment of the appellant’s application.

87 The minute expressed the view that the continuation of the appeal was not justified having regard to the prospect of success and the possibility that a successful appeal would not guarantee that the appellant would be refused a visa by the AAT, on any reconsideration.

88 In relation to the second option, the minute stated :

“17. In any litigation arising from decisions by you to cancel Mr Jia’s visa and to declare him an excluded person, you could be called to give evidence and be subject to close scrutiny. You could well be called upon to give evidence about your views as to Mr Jia’s character and be subject to cross examination about the justification of your decisions and to rebut any possibility of grounds of bias or improper purpose being made out.

.....

23. A decision to cancel the visa and to declare Mr Jia to be an excluded person would indicate to the community the Government’s concern about the acceptability of the AAT decision in the national interest and reflect its determination that non-citizens with a history of conduct and an apparent disregard for the law as in Mr Jia’s case reflects poorly his character and he should not remain in Australia. However, this course of action would most likely lead to prominent litigation against the Commonwealth involving yourself personally, with a real risk that the Commonwealth would lose.”

89 In relation to the third option, the minute stated :

“20. Given the above difficulties associated with Options 1 and 2, you may choose, reluctantly, to not contest the AAT’s decision but to use this case as exemplifying the shortcomings in the current framework for effectively deciding character matters and re-inforcing the need for the kinds of changes to strengthen s.501 to which you have already agreed.

21. However, to accept the AAT decision and to proceed to finalise the matter may be interpreted by the community that the Government is ‘soft’ on crime committed by non-citizen non-permanent residents. It is highly likely had Mr Jia been a permanent resident at the time the crimes were committed and having regard to his relative short stay here, the nature and substances of his linkages with the community and relationships with citizens or permanent residents, that his deportation would have been ordered.

.....

24. The third option as discussed above, may be the least palatable but is one which may best ensure the achievement of legislative changes to enhance decision-making under s.501.”

90 The minute concluded with the recommendation that the respondent note the available options and agree to discuss them further.

91 The hearing before French J proceeded in part on the basis of a statement of agreed facts. Those agreed facts deal with the state of mind of the respondent at or about 14 April 1997, and stated :

“1.1 At that time the Respondent did hold the opinion that ‘most Australians would find it difficult to reconcile a six and a half year jail sentence for rape with a finding by a Deputy President of the Administrative Appeals Tribunal that the person concerned is of good character.’

1.2 At that time the Respondent did hold the opinion that ‘this latest AAT decision has essentially rejected the court’s finding of culpability by finding Mr Jia’s behaviour leading to the offences justifiable because of the rape victim’s conduct towards him and his own reasonable or unreasonable feelings of jealousy’.

1.3 At that time the Respondent was of the opinion that ‘the Government is concerned about the emerging trends for Tribunals to discount the importance the Government attaches to character issues’.

1.4 The Respondent did not publicly express those opinions.

1.5 At that time the Respondent did not hold the opinions that ‘the line of reasoning taken by the AAT was beyond comprehension’ and that ‘most Australians would be appalled that Mr Jia has been found to be of good character’. The Respondent’s opinion at this time was better expressed in the Background Brief dated 24 April 1997 which stated ‘I have difficulty in accepting the line of reasoning taken by the AAT ... I am sure that most Australians would be surprised that a non-citizen with such convictions has been found to be of good character’. A copy of that Brief is annexure ‘2’ to this Statement.”

92 The basis upon which these facts were agreed for the purpose of the case is not apparent from the material available on the appeal.

93 The Minister’s letter to the President of the AAT dated 30 April 1997 was in response to a letter written to the Minister by the President dated 16 April 1997. Neither the letter from the President nor the contents of it were in evidence. The letter said :

“Thank you for your letter of 16 April 1997 bringing to my attention your concerns about comments attributed to me in an article in The Daily Telegraph on Monday 14 April 1997, relating to immigration decisions by the Administrative Appeals Tribunal (AAT).

As published in The Daily Telegraph, I am concerned about a number of recent decisions made by the AAT allowing convicted offenders to remain in Australia. According to figures held by my Department, nine criminal deportation cases have been remitted or set aside by the AAT (other than with the consent of the Department), out of a total 76, between 1 July 1993 and 30 April 1997. A further 6 were withdrawn by the Department, as it was expected that some would be overturned by the AAT.

Of nine cases set aside by the AAT, four have re-offended since the deportation orders signed against them were set aside or remitted by the Tribunal. In these four cases, the Tribunal had considered that there was a low risk of recidivism or the prospect of rehabilitation was high even though the persons were convicted of serious offences. I am particularly concerned where such cases involve serious drug related offences.

While the number of cases overturned by the AAT are not large these cases are sensitive and significant, in that they:

· set standards of decision making by other Tribunal members and officers,

· undermine the confidence of the community,

· are against the Government’s requirements for which I am responsible for and accountable to Parliament,

· appear to indicate a tendency to afford greater weight to the interests of the individual and their family relative to the seriousness of the offence,

· raise the question of what arrangements need to be considered by me so that I can intervene where the Government’s requirements are undermined,

In the case of Mr Jia, the Tribunal member appears to have confused the fact that decisions made under s.501 involves a two-step consideration. The first is to determine if the person is, or is not of good character. If determined not to be of good character, second determination is whether to exercise the discretion to refuse to grant (or cancel), the visa. The Tribunal finding was that Mr Jia is of good character, and thus eligible for a visa. The Tribunal incorrectly exercised the discretion under s.501 to grant him a visa, despite Mr Jia’s sentence to six and half years imprisonment. Before the discretion at s.501 is exercised the person must first be determined to not be of good character, and this was not the case when the AAT purported to exercise the discretion in favour of Mr Jia. The Tribunal incorrectly exercised the discretion under s.501 to grant him a visa.

That persons such as Mr Jia can be found to be of ‘good character’, despite his recent conviction for a serious crime undermine the Government’s ability to control entry into Australia on character grounds. I am concerned that this may set a precedent for decisions by the AAT in the future. To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations. Although I recognise that AAT decisions are not precedential, as a matter of law, such decisions may be viewed by the Tribunal and officers in determining the character requirements under s.501 as the acceptable standard. It would the [sic] undermine the Government’s desire to protect the Australian community.

The other case involved Mr Ram, whose wife (Ms Lata) was refused a spouse visa in 1995 under s.501 on the basis of serious immigration malpractice. In the Ram case the malpractice involved two couples, Mr Ram and his wife Ms Lata and Mr and Mrs Prasad. Mr Prasad and Mrs Prasad (an Australian citizen) divorced. Mr Ram entered Australia and married Mrs Prasad. Mr Ram later divorced Mrs Prasad and Ms Lata entered Australia on the basis of her proposed marriage to Mr Prasad and immediately took up residence with her defacto husband, Mr Ram. Ms Lata subsequently married Mr Ram, not Mr Prasad. Ms Lata applied for a spouse visa and later admitted to knowing of the scheme. Her application was refused on character grounds. Ms Lata left Australia voluntarily in 1993 under threat of removal as an illegal non-citizen. Ms Lata and Mr Ram have three children. Mr Ram appealed to the AAT. Initially the AAT set aside the delegate’s decision on the basis of the best interests of Ms Lata’s child, however, after the matter was successfully appealed to the Federal Court, a differently constituted Tribunal found that Ms Lata was not of good character. Hill J’s judgement confirmed that decisions under s.501 involve a two-step approach and only if a person is not of good character does the exercise of the discretion become a relevant consideration.

The significance of these two cases is that they show that the AAT has on occasion misconstrued the tests involved in character decisions. They also illustrate, to my mind, a tendency on the part of the Tribunal to afford greater weight to the interests of the individual and their family than to the protection of the Australian community and the integrity of Australia’s entry programs.

Abuse of the migration program through such practices as sham marriages is unacceptable and steps have been taken to increase the screening of applicants to ensure the genuineness of claimed relationships. The integrity of such endeavours can be undermined unless supported by mechanisms such as the use of the refusal powers in s.501.

The seriousness of the crime, which is an important consideration, does not appear to have been given sufficient weight in the Tribunal’s deliberations. Where the courts have determined that a substantial period of imprisonment was appropriate for the crime committed, the seriousness of the crime is a primary consideration. Crimes involving violence and drugs are regarded as particularly abhorrent and are viewed as significant in the consideration under the character and deportation provisions of the Act.

94 The references in the letter to the two-step process of decisions under s 501 is a reference to the decision of Hill J in Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431 at 432.

95 On 21 May 1997 the Department tendered to the respondent advice as to the requirements of natural justice if he was considering using his powers under s 501 and s 502 of the Act in respect of any residence visa issued by the Department to the appellant.

96 On 26 May 1997 the appellant received from the Department of Immigration and Multicultural Affairs a facsimile of a letter sent to him on that date. The letter said :

“Dear Mr Jia

I am writing to you about your transitional (permanent) visa. The Minister for Immigration and Multicultural Affairs has indicated that he proposes to personally examine whether to cancel your visa under section 501 of the Migration Act 1958 and declare you as an excluded person under section 502 of the Act. I have attached the text of sections 500, 501 and 502 for your information.

Under section 501, the Minister may decide to cancel your visa, particularly having regard to your past criminal conduct (section 501(2)(a)(i)) and your general conduct (section 501(2)(a)(ii)). If the Minister decides to cancel your visa under section 501, he may also, as part of that decision, include a certificate declaring you to be an excluded person under s.502. As an excluded person, you would not be able to seek review in the Administrative Appeals Tribunal of any decision of the Minister to cancel your visa (see section 500(1) of the Act).

Before the Minister considers these questions under sections 501 and 502, he wishes to provide you with an opportunity to comment. Matters to be taken into account by the Minister may include

. your bona fides as a student in that within several weeks after arrival you applied for refugee status;

. your convictions for offences against Australian migration and taxation law;

. your convictions for offences against State laws in WA;

. your actions resulting in forfeit of a surety raised on your behalf by your friends;

. the seriousness of these offences, particularly those for which you have been convicted in respect of Ms Li You;

. the fact that the offence of working without written permission occurred shortly after you had been counselled about the condition of your release from immigration custody;

. the implications that your behaviour has for your respect for the laws of Australia, the Australian Government and for others in the Australian community.

The Minister invites you to comment on the above matters and provide any information which you consider relevant. He will take any material you provide into account when he examines your case. ...”

97 On 4 June 1997 a statement from the appellant was forwarded to the Department under cover of a letter from the Director of Legal Aid. That letter said in part :

“... If your Department or the Minister disagreed with that decision and believed that it was contrary to law, then rights of appeal existed to the Federal Court. With the greatest respect, the approach that you are now taking is an abuse of the process of the law and indicates bias against Mr Jia.

If a decision is made to cancel Mr Jia’s Residence Visa on the same grounds which have already been considered and taken into account by the Administrative Appeals Tribunal, this will surely give Mr Jia grounds for an application for review to the Federal Court under Section 476.

Accordingly, I would earnestly request that you reconsider your proposed actions in this matter.”

98 At the time of making the decision on 10 June 1997 to cancel the appellant’s visa, the respondent had before him a Departmental minute from Mr Rizvi which stated, in part :

“...

5. In the material from Legal Aid WA and Mr Jia, the following matters are submitted:

- by Legal Aid WA:

DIMA has accepted the AAT’s finding that Mr Jia is of good character and has granted him a permanent visa;

It appears that if you pursue the options open to you, you would rely on the same grounds as ventilated before two AAT hearings;

Mr Jia’s conduct has been exemplary since the first AAT hearing;

The Commonwealth should have exercised appeal rights if it disagreed that the most recent AAT decision was contrary to law; and

The approach indicated (ie possible visa cancellation and declaration of Mr Jia to be an excluded person) is an abuse of the process of law and indicates bias against Mr Jia and if a decision to cancel Mr Jia’s visa is made on the same grounds as already considered by the AAT, there will be grounds for Mr Jia to pursue legal review under s.476 of the Act.

- by Mr Jia and in addition to those matters above:

The question of his character has already been considered at great length by the AAT, and Federal Court;

His application for a refugee visa followed his fraternisation with other PRC students;

His English comprehension was inadequate for him to complete his chemistry diploma here;

He acknowledged working without permission but said that others were doing the same and it was ‘not regarded particularly seriously by the authorities’;

The forfeiture of his bond arose by him working to repay as a matter of honour, a debt of $400 owed by Ms Li and that he regrets doing so and using a false name;

He denies the offences for which he was convicted and sentenced to prison;

He notes the AAT’s finding that the offences were out of character, and that the AAT also took into account his conduct while on bail and in prison;

At the first AAT hearing he was assisted by friends including Ms Anoosh Taidi, and Mr Glen McKay who returned from PRC especially to assist him;

The AAT was in a better position to judge his character through personal assessment and help from his friends rather than could be judged from reading relevant papers;

He requests that you read the AAT and Federal Court transcripts and to consider supporting statements, which were not received by the later time agreed for material to be submitted or by the time of forwarding this minute to you;

He is working as a kitchen hand but intends to pursue a career as a metallurgical engineer; and

He requests that you accept the decision of the AAT and assures you he will be an asset to Australia.

6. The AAT’s reasons for its decisions of 26/7/96 and 14/4/97 on Mr Jia’s character are at Attachment B.

Issues

7. You may wish to take into account the following matters when considering whether to exercise the discretion whether to cancel Mr Jia’s visa under s.501 and whether then to declare him an excluded person under s.502.

Question of good character

8. The Department has not, as claimed by Legal Aid WA, accepted that Mr Jia is of good character - it has accepted the AAT’s finding he is of good character for the purpose of granting a transitional (permanent) visa. The Department has accepted Counsel’s advice that there are not reasonable grounds for success on appeal for an error of law. It does not accept the AAT’s findings regarding Mr Jia’s character, only that judicial review would not necessarily flow in the Department’s favour. The Department is not obliged to exercise appeal rights if it believes the AAT’s decision is wrong.

9. The Federal Court of Australia has not considered Mr Jia’s character - it has considered only whether the AAT committed an error of law in its consideration of Mr Jia’s character - see its decision of 20/12/96 at Attachment C.

10. In your assessment of whether Mr Jia is not of good character under the provisions of s.501 of the Act, you are invited to consider Mr Jia’s behaviour since arrival in Australia. In particular, you are invited to assess his character taking into account his criminal conduct and also his general conduct as provided under s.501(2)(a) of the Act.

11. In relation to his past criminal record, the following factors are relevant -

- Mr Jia was sentenced to 6½ years imprisonment following his conviction on several charges involving offences against the person. The convictions and sentences imposed were upheld on appeal;

- however, related argument was unsuccessfully presented to the WA Court of Appeal which upheld the convictions and the sentences imposed by the WA Supreme Court;

- Mr Jia’s conduct in committing the offences may be a tangible reflection of his moral qualities and indicate on the basis of his criminal record, that he is not of good character, despite either mitigating factors or his reputation as considered by the WA Supreme and Appeal Courts, and the AAT;

- his disregard for the law is reflected in his criminal record in the convictions (subsequent to guilty pleas) for having worked in Australia without authority and for having used another person’s tax file number, notwithstanding the mitigating circumstances advanced by Mr Jia;

- Mr Jia still denies the offences for which he has been convicted and imprisoned. He has not accepted any wrong doing other than for one occasion when he struck the victim (Ms Li). His behaviour with regard to those offences was attributed by the AAT to his having jumped to wrong but honest conclusions, and his motivation in committing them as having partly arisen from confusion and jealousy.

12. Turning to Mr Jia’s general conduct, you are invited to consider the following:

- the offence of working without authority was a premeditated breach of a condition of his release from immigration custody, and in direct defiance not only of counselling by departmental officers with the assistance of an interpreter prior to his release that he was not to do so, but also of an undertaking by him that he would abide by that and other conditions. He was released from custody upon payment of a bond of $5,000 which was raised among his friends;

- the surety raised on Mr Jia’s behalf was forfeited as a result of Mr Jia’s actions; and

- his use of a false name and another person’s tax file number in misrepresenting himself to an employer was premeditated.

13. The following factors are in his favour in relation to adverse aspects of his general conduct:

- he pleaded guilty to the charges relating to working without permission and use of the tax file number and has indicated that there were mitigating circumstances for that conduct;

- after release from detention in November 1993 and prior to his conviction and sentencing in February 1995, Mr Jia worked to repay the $5,000 bond monies raised by his friends and which had been forfeited; and

- the AAT was impressed by his exemplary conduct while on bail awaiting trial and during his incarceration.

14. In relation to the claim as to his exemplary conduct, you may note that this occurred while he was on bail awaiting trial, where further offences would have imperilled that conditional release from custody; while he was in prison in a controlled environment, where his liberty was circumscribed in respect to freedom of action; and while on parole, following his recent release from prison. What weight you give these factors, if any, is for you to determine.

15. The mitigating circumstances advanced by Mr Jia in relation to the circumstances above might be balanced against the outcome of his prosecution and the view that it clearly was not to his advantage to then behave in a way which reflected poorly on him. Whether the period of exemplary conduct is a reflection of his true character having regard to his criminal record and his general conduct, is a matter for judgement and it is open to you to conclude that Mr Jia is not of good character.

... ”

99 Included in the materials were the reasons for judgment of Carr J relating to the appeal from the first decision of the AAT. Those reasons contained extracts from the decision of a Full Court of this Court in Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 as to the meaning of the term “good character” in the context of the Act. The extracts quoted Davies J, who said (at 425) :-

“It should also be observed that the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute, see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But 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.”

100 And Lee J, who said (at 431 - 432) :

“Unless the terms of the Act and regulations require some other meaning be applied, 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 to 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 whilst the latter is a review of subjective public opinion [authorities cited]. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character [further citation of authority]. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”

101 The reasons of Carr J also dealt with the submission that the types of offence in question precluded a person guilty of them being regarded as a person of good character. His Honour said :

“Mr McIntyre contended that any one who commits offences of this type could not reasonably be regarded as a person of good character, because too short a period had expired after the commission of those offences. In those circumstances the Tribunal could not reach the above conclusion reasonably. The Tribunal had, so it was submitted, put the Convictions ‘at nought’ contrary to the principles outlined in the decisions of Daniele; Minister for Immigration v Gungor (1982) 5 LD 575; Degerli v Minister for Immigration (1981) 4 ALN 39 and Beckner v Minister for Immigration (1991) 30 FCR 49.

When considering that submission, it must be borne in mind that the test ‘to the satisfaction of the [Tribunal]’ is a subjective one: Minister for Immigration v Wu Shan Liang (1996) 136 ALR 481 at p 494. At the same page, four of the judges of the High Court said that :

‘ ... while the subjective nature of the decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law.’

Merkel J in Simplot Australia Pty Ltd v Nettlefold (1996) 139 ALR 371 at p 378 construed that passage as a statement that the subjective nature of the decision was an ‘important’ element in any such review, perhaps on the basis that anything relevant is important. As Mr HNH Christie, (counsel for the respondent) submitted, the true question is not whether or not the respondent is of good character, but whether the Tribunal could not be satisfied that the respondent was of good character.

I do not think that the Tribunal put the Convictions ‘at nought’ as claimed on behalf of the applicant. The Tribunal, in the passage set out earlier in these reasons, acknowledged that it could not do this. A fair reading of the Tribunal’s reasons shows that it did not do so and that this was not mere lip service. The Tribunal focused on the Convictions and the circumstances which led to those Convictions. It carefully examined all of those circumstances, and in my view, it was quite clearly entitled to do so when making an assessment of the respondent’s character. It then turned to the respondent’s subsequent conduct. It formed a favourable opinion about the respondent’s credit. The Tribunal considered that the period of time which had expired since the commission of the offences was sufficient to make the assessment which it expressed in paragraph 41 of its reasons. I am not satisfied that no decision-maker, acting reasonably, could have arrived at that decision. ...”

102 The respondent also had before him the following additional material to that identified in Mr Rizvis’ minute :

(a) the letter of the Director of Legal Aid dated 4 June 1997;

(b) a copy of the appellant’s written submissions dated 4 June 1997 together with attachments;

(d) the transcript of the sentencing remarks of Walsh J of the Supreme Court of Western Australia.

103 Whatever the view of the respondent, as expressed on 14 April 1997 in the radio interview and in the letter to the President of the AAT of 30 April 1997, the context in which the decision was made on 10 June 1997 was significantly different. The respondent had available the judgments of this Court which set out the proper meaning of the term “good character” as it is used in the Act and the process by which a decision maker ought properly to determine the character question. The judgment of Carr J also made clear that the existence of the criminal convictions of the appellant for serious crimes did not automatically debar the appellant from a finding of good character by a decision maker acting reasonably. Additionally, the Minister had all of the material which was favourable to a conclusion that the appellant was a person of good character and had available the reasons of the AAT which revealed the thinking of the AAT which led it to a conclusion that the appellant was a person of good character. Finally, the respondent had available to him the departmental minute which analyses the issues and the competing contentions and was on notice from the letter of the Director of Legal Aid that any adverse decision would be challenged on the basis of actual bias against the appellant.

104 A finding of actual bias should not be made lightly and cogent evidence is needed before it will be found: Sun at 123. The case raised must be a substantial one: Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 (FC) at 319; Khadem v Barbour, Senior Member of the Administrative Appeals Tribunal (1995) 38 ALD 299 at 306; Singh at 9.

105 For the appellant to have succeeded at first instance it was necessary to show that, notwithstanding the material available to the respondent and the context in which the decision was made, the mind of the respondent had prejudged the issue of the appellant’s character and would not alter the conclusion irrespective of the evidence, arguments, advices and court decisions presented to him on the issue of character because his mind was not open to persuasion. If the appellant could not make out a case of actual bias, it was not sufficient that the appellant make out a case of reasonable apprehension of bias.

106 As to the ground of actual bias, French J said :

“In my opinion the evidence points to the Minister having formed, on the basis of Mr Jia’s convictions and sentence, a view strongly adverse to the conclusion that he could be described as a person of good character.

The convictions upon which that view was based were plainly relevant to the decision to cancel the visa. The Minister was entitled and, in my opinion, obliged to have regard to Mr Jia’s past criminal conduct in determining whether he was satisfied that Mr Jia was a person not of good character. He was entitled, and I would think, obliged to have regard to other factors relevant to the question whether Mr Jia was a person of good character. And having decided he was not a person of good character, he had a discretion whether or not to cancel the visa granted to Mr Jia. It would be appropriate in the exercise of that discretion to have regard to the full range of relevant circumstances. Whether or not he was bound to have regard to any particular circumstance is not to the point. The question is whether by his mental state he was disabled from or unwilling to have regard to other relevant circumstances.

The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker’s provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.

The Minister’s case may not have been helped by his public discussion of Mr Jia’s case on radio in a way that exposed his views adverse to Mr Jia. For the hypothesis is then open that having taken a public position on what is undoubtedly a politically sensitive case the Minister would find it difficult to appear to resile from that position. On the other hand, he did leave himself an escape route in the radio interview referring as he did to the need to ‘weigh up’ whether it was proper for him to adopt the procedure of granting the visa and then cancelling it on character grounds. Moreover, the Minister is an elected official, accountable to the public and the parliament and entitled to be forthright and open about the administration of his portfolio which, it is common knowledge, is a matter of continuing public interest and debate.

The Department had provided the Minister with a comprehensive minute in advance of his decision which drew attention to factors both adverse and favourable to Mr Jia.

The Minister’s criticism of the Administrative Appeals Tribunal related not just to the Jia case but was placed in a wider context of concern about his perception of a trend in Tribunal decision-making. He was entitled to make those observations and to draw them to the attention of the Tribunal President. In assessing the standards of behaviour required of the Minister it is important to bear in mind that he is not acting as a judge or tribunal but as an administrative decision-maker implementing government policy.

While it is clear that the Minister had strong views about Mr Jia’s case, I am not satisfied that those views precluded him from the consideration of all the relevant circumstances so as to constitute actual bias inducing or affecting the decision within the meaning of s476(1)(f).”

107 French J in his reasons for judgment correctly states the principles applicable to the making of a finding of bias and the onus which the appellant had in making out a case sufficient to support a finding of actual bias. The circumstances relied upon by the appellant to support the drawing of an inference that the respondent was, on 10 June 1997 affected by actual bias, did not, in my view, compel the drawing of such an inference. The fact that a decision maker does not depart from a previously held opinion does not mean that the decision is affected by actual bias. The failure to change a previously held opinion is open to the inference that the mind of the decision maker was open to persuasion to the contrary view but the material and arguments advanced did not persuade the mind of the decision maker to that view. It is also open to the inference that the decision maker’s mind was closed for whatever reason to any contrary view, notwithstanding the material or arguments advanced in support of it. Nor does the rule in Jones v Dunkel (1959) 101 CLR 298 mean that the failure of the respondent to give evidence of his state of mind at the time of the decisions made on 10 June 1997 and to be cross-examined as to his reasons, is evidence of bias on the respondent’s part. Rather, it allows the Court to more easily draw an adverse inference available on the admissible evidence because the inference stands uncontradicted by the person who could say something about the true facts: Jones v Dunkel at 308; Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 at 62. The rule does not require that the Court in fact draw the opposing inference. Whether or not the inference is drawn will depend upon the totality of the evidence which impacts upon whether the inference should be drawn.

108 It was open to his Honour to find that the respondent, although holding strong, even incorrect, views in April 1997, was still concerned to do what was proper in respect of the appellant. It was also open to his Honour, having regard to all of the relevant circumstances as they existed on 10 June 1997, not to be satisfied that the respondent either consciously or unconsciously acted contrary to the advice and without regard to the material placed before him because he had a closed mind on the issue of the appellant’s character. All this means is that the appellant failed to discharge the onus of proof which he bore to establish actual bias affecting the decision on 10 June 1997.

109 I am not satisfied that his Honour was guilty of an appealable error.

Ground (e)

110 This ground of appeal takes as its focus the departmental guidelines contained in paragraph 8.5.2 of the Procedures Advice Manual. There is no evidence at all that the respondent had any regard to the manual or the departmental guidelines in arriving at his decision. The manual was not one of the documents before the respondent at the time he made the decision. Further, the departmental minute to the respondent makes no reference to the manual. In these circumstances, even if the matters pleaded in this ground were made out, it would not impugn the decision or constitute an appealable error in relation to it.

Grounds (f), (g) and (h)

111 These grounds of appeal are based on the factual premise that the decision to cancel the residence visa and the decision to declare the appellant an excluded person, were only made because the AAT made a previous contrary decision on the same matter and to exclude the appellant from access to the AAT for further review of the issue. Those circumstances, it was submitted, did not satisfy the statutory requirements that the power was only exercisable if it is in the national interest that the person be declared an excluded person because of the seriousness of the circumstances giving rise to the decision under s 501.

112 In his reasons, French J, after setting out the appellant’s contentions as outlined above, said :

“Counsel for the Minister pointed out that Mr Rizvi’s submission of 6 June 1997 considered the possibility of a decision under s 502 of the Migration Act and set out a number of matters which, it was said, the Minister might consider in relation to that question. These were:

1. The material which the Minister had already read in relation to his decision under s 501.

2. The apparent contempt and disregard by Mr Jia for immigration and taxation laws which involved core national government functions and the criminal law of Western Australia.

3. The adverse impact upon Australia’s social cohesion.

4. The exploitation and breach of trust of the Australian government.

5. The community’s perception of the government’s attitude to a person such as the applicant if he did not exercise the sanctions which Parliament had provided.

6. The interests of social justice.

7. The violation of the rights and security of a woman and the protection to which she is entitled under Australian law.

The seriousness of circumstances giving rise to the making of a decision under s 501 of the Migration Act is a matter peculiarly for assessment by the Minister. So too, is the question of national interest. It is of significance that in this case one aspect of the seriousness of the circumstances and national interest was community perception of governmental policy and its impact on attitudes to other non-citizens and general considerations of social cohesion. In my opinion this was plainly a matter for the Minister to assess and there is nothing on the materials to indicate that he strayed beyond the proper limits of that assessment.”

113 The approach taken by French J is entirely consistent with the approach taken by the Full Court in Gunner, where their honours said (at 409) :

“... When s 502(1)(b) speaks of

‘the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person’.

The decision referred to is the decision of the kind referred to in s 502(1)(a)(i), (ii) or (iii) - in the present case a decision under s 501 (which is referred to in s 502(1)(a)(ii)). The ‘circumstances’ in the present case are thus the respondent’s past criminal conduct: s 501(2)(a)(i). It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa. The effect of s 502, when invoked, is to ensure that the Minister is to have the final and only say on the question of whether the person in question should or should not be entitled to enter or be in Australia. While the word ‘excluded’ signifies exclusion from merits review by the AAT, the effect is that, since the relevant decision under s 201 or s 501 has been made by the Minister acting personally, the Minister and no one else can make the decision as to what is in the national interest. Not only is the Minister directly answerable to Parliament for his or her decision, but Parliament must in fact be informed of the decision: s 502(3).

Counsel for the respondent submitted that the only classes of circumstances that could make it in the national interest to exclude a person from entitlement to apply to the AAT for a review would be those connected with the AAT hearing itself, such as unreasonable delay or the possibility that the hearing might provide a platform for inflammatory and divisive racist rhetoric. However, such a reading is contrary to the language of the section and its evident purpose.”

114 The purpose of s 502 is to provide that merits review is not available in certain circumstances and the section contains protections against abuse of the power by requiring that it be exercised by the Minister personally and that notice of the making of a decision under s 502(1) must be laid before each House of Parliament. The object is clearly to make the Minister accountable to the Parliament and not to the AAT for a decision under s 501 and for the making of the declaration where the Minister believes the making of the declaration is justified. The proper relationship between the powers in s 501 and s 502 inter se and between a prior AAT decision on character was explained in Gunner (at 408) :

“... Further it is not accurate in our respectful submission to speak of setting at nought the AAT’s determination. This is not a case where a Minister attempted to act in defiance of a binding ruling by the AAT. Sections 501 and 502 are quite separate sources of power. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment.”

115 Accepting then, that the Act in s 501 contemplates that the Minister may himself or herself revisit the issue of character of an applicant for or the holder of a visa, notwithstanding the existence of the AAT decision that the character requirements have been satisfied, the use of the power in s 502 to prevent a further review by the AAT of the issue is an entirely proper exercise of the power if the Minister is of the opinion that the circumstances specified are met. The section leaves to the Minister personally the decision as to what constitutes the seriousness of the circumstances giving rise to the making of the decision under s 501 and what is in the national interest. It is not possible to lay down with any degree of precision where the limits of the requirement will fall in any particular case. However, because the Minister is accountable to the Parliament for the decision, the matters in s 502(1)(b) are peculiarly for the assessment of the Minister.

116 The issues raised in the submission of Mr Rizvi of 6 June 1997 set out above in the judgment of French J address the circumstances of s 502(1)(b). It cannot be said that there was no material upon which the respondent could base a decision to declare the appellant an excluded person pursuant to s 502 of the Act.

Conclusion on the appeal

117 In my view no ground of appeal is made out. I would dismiss the appeal with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 15 July 1999

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 85 OF 1998

BETWEEN:

JIA LeGeng

Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE:	SPENDER, COOPER & R D NICHOLSON JJ
DATE:	15 JULY 1999
PLACE:	BRISBANE (HEARD IN PERTH)

REASONS FOR JUDGMENT

118 R D NICHOLSON J: This is an appeal from the dismissal by the primary judge of an application for judicial review of a decision of the respondent to cancel the appellant’s visa and to declare him to be an excluded person.

119 The factual background has been fully set out in the published reasons of the primary judge. I do not repeat it here except as is necessary for the purposes of these reasons.

120 The matter came before the primary judge by way of an application for judicial review of the respondent’s decisions to cancel the applicant’s visa. It was not disputed that the decisions were judicially reviewable decisions within the meaning of s 475 of the Migration Act 1958 (Cth) (“the Act”). The grounds of review which failed in the view of the primary judge related to actual bias, improper exercise of power, error of law in relation to the meaning of “good character”, error of law in relation to the seriousness of circumstances and national interest, absence of authorisation of the decisions and improper exercise of power because the respondent’s decision overturned the decision of the Administrative Appeals Tribunal (“the Tribunal”).

121 Although the appellant’s grounds of appeal are eight in number the case on the appeal was founded on two principal aspects of the decision of the primary judge. The first related to the conclusion of the primary judge that there was no improper exercise of power in that a favourable decision from the Tribunal provided no express limitation upon the exercise of the respondent’s powers under ss 501 and 502 of the Act. The second was the ground of actual bias. There are other matters in the written submissions which will also be addressed.

Improper exercise of power

122 The provisions under which the Minister made the decisions under review were ss 501 and 502 of the Act which read:

“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

(ii) vilify a segment of the Australian community; or

(iii) incite discord in the Australian community or in a segment of that community; or

(iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way;

(2) This subsection 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

(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.

502(1) If:

(a) the Minister, acting personally, intends to make a decision:

(i) under section 200 because of circumstances specified in section 201; or

(ii) under section 501; or

(iii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2):

in relation to a person; and

(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(2) A decision under subsection (1) must be taken by the Minister personally.

(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made.”

123 In his reasons for judgment the primary judge held that there is no express limitation upon the exercise of the respondent’s powers under these sections where the Tribunal has made a decision favourable to the grant of a visa on the same facts and circumstances. He said that to imply such a limitation where Parliament has not expressed it would be a serious matter. In his opinion that highly specific limiting implication is not visited upon the combined exercise of the powers under ss 501 and 502 by the general system of merits review through the Tribunal for which the Act otherwise provides.

124 In support of this view he had regard to the fact that the Tribunal is not a court and is characterised as an administrative decision-maker, being part of the continuum of administrative decision-making under the Act and a number of other Commonwealth Acts in respect of which merits review is available. He said the Tribunal bound the respondent in the limited sense that the Act authorises the Tribunal to substitute its decision for that of the respondent or his delegate in those cases which are susceptible of merits review.

In reaching this view the primary judge refused to follow the reasoning in Gunner v Minister for Immigration and Multicultural Affairs, (Sackville J), Federal Court of Australia, 19 December 1997, unreported. Subsequently, the Full Court reversed the decision of Sackville J: Minister for Immigration and Multicultural Affairs v Gunner, (Full Court), Federal Court of Australia, 17 July 1998, unreported.

Appellant’s contentions

125 The appellant’s case accepts that the effect of the determination in Gunner in the Full Court was that the source of the respondent’s power to cancel a visa pursuant to s 501 of the Act was separate from his power to deport pursuant to s 200. Accordingly, the power to cancel a visa pursuant to the former section could still be exercised by the respondent notwithstanding a prior decision by the Tribunal to set aside a deportation order. It is submitted that the Full Court there recognised that ss 501 and 502 were quite separate sources of power from s 200 and attracted different criteria.

126 It is also said in the appellant’s case that the Full Court stated at 13:

“However, the Minister accepted the decision which the AAT did make. He did not disobey it and did not proceed with an appeal against it. Rather, he exercised a separate statutory power which was available to him and the exercise of which was directed towards the purpose for which the power was conferred, namely the removal from Australia of non-citizens who have committed serious crimes or are otherwise not of good character.”

The result in the appellant’s argument is that Parliament has by virtue of s 500 of the Act (which provides for merits review by the Tribunal) set up a scheme binding on the respondent. However, the powers under s 200 and s 501 can be exercised separately so that a binding decision by the Tribunal under one section will not prevent the respondent from exercising his separate power under the other section nor from excluding merits review of that further decision if he so exercises his power under s 502.

127 The argument for the appellant then seeks to distinguish that position from the one pertaining in the present proceeding. It is submitted that the respondent was not here exercising a separate source of power to that on which the Tribunal had reached a binding decision. Nor had the respondent at the time of the initial decision exercised his power under s 502 to exclude the jurisdiction of the Tribunal. Accordingly, it is said for the appellant that once he had exercised his right of review by the Tribunal in circumstances where the jurisdiction of the Tribunal had not been excluded, the decision of the Tribunal that he was “of good character” and consequently qualified for a residence visa was binding on the respondent. The reason for this, it is submitted, is that it is not open to be said that the powers given to the Minister under s 501 to refuse a visa on the grounds of character or to cancel a visa on the grounds of character are separate sources of power.

128 This submission is taken further in stating that the purpose of s 500 and the intention of Parliament to bring about merits review would be defeated if this Court determined that the respondent can validly decide the appellant is not of good character on the same facts and circumstances which have led the Tribunal to determine that he is of good character. These submissions are supported by reference to two decisions in which it is said the Court has previously ruled that similar provisions in different Acts should not be construed so as to remove the Tribunal’s decision-making powers: Lynch v Minister for Human Services (1995) 39 ALD 501 and Riddell v Department of Social Security (1993) 114 ALR 340.

129 In elaboration of these submissions in oral argument it was submitted by counsel for the appellant that the power which was initially exercised by the respondent’s delegate on 1 December 1995, being the decision set aside by the Tribunal, was the power to refuse to grant a visa (not the power to grant a visa). Furthermore, it is submitted that because s 502 specifically refers to the respondent deciding to exercise a power to refuse or grant a visa or to cancel a visa under s 501, s 502 does not itself provide the power to refuse to grant or to cancel. It is said the only power granted by s 502 is the power to declare a person to be an excluded person. Consequently in those circumstances the cancellation by the respondent in the circumstances of the present case is not a separate power to that initially exercised by the respondent’s delegate and then substituted by the decision of the Tribunal.

130 For the appellant’s case the provision in s 502(3) requiring the respondent to cause notice of the making of the decision to be laid before each House of Parliament was not a sufficient protection to the unreasonable use of the power. To that extent the appellant’s case disagreed with what was said on that matter in Gunner’s case.

131 In support of these contentions the appellant’s case also went to the legislative history of s 500 of the Act. Prior to the coming into force of the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) s 180 contained the provision enabling applications to be made to the Tribunal. By subs 180(3) the Tribunal was empowered to “either affirm the decision or remit the matter for re-consideration in accordance with any recommendations of the Tribunal”. In the event that the Minister made a further decision contrary to the recommendations of the Tribunal, the matter could not be referred back to the Tribunal because subs 180(1) was applicable to matters “other than the decision made on a matter remitted by the Tribunal for re-consideration in accordance with subs (3)”. The effect of the 1992 Amendment Act was that subs 180(3) was omitted so that decisions of the Tribunal took effect as prescribed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). The effect of this in the submission for the appellant was that prior to the amendments made in 1992 the position as existed under s 180 was that the Tribunal had only recommendatory powers: cf Haoucher v Minister for Immigration and Ethic Affairs (1990) 169 CLR 649 particularly at 683-684 per McHugh J. It is submitted that now Parliament has by this regime provided determinative power to the Tribunal it is open to inference that the reason ss 501 and 502 were invoked by the respondent to cancel the appellant’s visa and to declare him to be an excluded person was simply that the respondent disagreed with the Tribunal’s decision.

Respondent’s contentions

132 For the respondent it is contended that the decision of the Full Court in Gunner is entirely against the appellant’s submissions on this point and that the point of principle decided in Gunner is materially indistinguishable from the position existing in the present case. Gunner, it is submitted, should be seen as turning on a number of considerations other than the existence of separate sources of power. It is submitted that Gunner compels a similar response in this case.

133 Two reasons in particular are said to support that result. The first is that the appellant’s contentions would involve reading in an exclusion clause to ss 501 and 502 which is not there. Furthermore it is said that it would be remarkable if, in circumstances where the respondent has the power to avoid the Tribunal by taking actions under the Act to prevent the matter going to the Tribunal, and where the matter has gone to the Tribunal, the respondent could be precluded from doing what it could otherwise have done.

134 Additionally, it is submitted for the respondent that with the Act bearing that construction it must follow that the respondent could not act for an improper purpose when he exercised a power that the Act gave him after the Tribunal had made its decision. The Act admitted the possibility of the respondent taking a different view to the one adopted by the Tribunal. The respondent acting upon it and exercising his powers under s 501 and 502 could not therefore be acting improperly. Furthermore subs 502(3) provides a protection in the obligation to report to Parliament and demonstrates the Parliamentary intent.

Reasoning

135 The relevant decision of the respondent is that made by him on 10 June 1997. The decision was in three parts:

“(a) Mr Jia is not of good character – agreed

(b) Discretion to cancel Mr Jia’s visa – exercised

Element (a) was an exercise of the power in either s 501(2)(a) or (b): the respondent’s reasons did not make apparent which paragraph the respondent acted under. Element (b) was an exercise of the second power in s 501(1). Element (c) was an exercise of the power in s 502(1).

136 The relevant decision of the Tribunal was that made on 14 March 1997 in these terms:

“In accordance with s.43 of the Administrative Appeals Tribunal Act 1975 the decision under review is set aside and remitted to the respondent with a direction that the [appellant] qualifies for obtaining a transitional (permanent) visa on the basis that he is of good character.”

The “decision under review” was a decision by a delegate of the respondent dated 1 December 1995 to refuse the appellant’s application for a transitional (permanent) visa under s 501 of the Act on the ground that the delegate was satisfied (under s 501(2)) that the appellant was not of good character because of his past criminal conduct.

137 It follows that the determination by the respondent that the appellant is not of good character and the determination by the Tribunal to opposite effect are each decisions in exercise of the power under s 501(2). In the former case the determination was made in connection with the cancellation of the appellant’s visa: the second power in s 501(1). In the latter case the determination was made in connection with the refusal to grant a visa: the first power in s 501(1).

138 In Gunner the Full Court said:

“Further, it is not accurate in our respectful submission to speak of setting at nought the AAT’s determination. This is not a case where a Minister attempted to act in defiance of a binding ruling by the AAT. Sections 501 and 502 are quite separate sources of power. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment.

In any event, it is not entirely correct to say that the Minister’s decision was ‘based on’ the same facts and circumstances as had been considered by the AAT. The Minister did not have before him any material which was not before the AAT. But because of the different provisions of ss 201 and 510 the test is not the same and the criteria are different. The Minister, in exercising the discretion conferred by s 501, was entitled to take into account matters which were not relevant to a decision under s 200 based on the criteria specified in s 201.”

Later the Court added:

“It is true that in the circumstances of this case the question of orders under ss 501 and 502 would not have arisen if the AAT had reached a different decision. However, the Minister accepted the decision which the AAT did make. He did not disobey it and did not proceed with an appeal against it. Rather, he exercised a separate statutory power which was available to him and the exercise of which was directed towards the purpose for which the power was conferred, namely the removal from Australia of non-citizens who have committed serious crimes or are otherwise not of good character.”

139 In my view this reasoning applies to the present appeal for the following reasons.

140 Firstly, the power to refuse to grant a visa and the power to cancel a visa, although contained in the same subsection, are separate sources of power. The acts of refusal of grant and of cancellation are different juridical acts.

141 The acts of refusal of grant and of cancellation being separate juridical acts, the regime for each could as easily have been set out in separate sections. That would have made more apparent that the substitution of a decision under s 501(2) on consideration of refusal of a visa application is not substitution on consideration of cancellation of a visa. By embarking on a different legal course the respondent was required to make decisions pertinent to that course. Those decisions, including that under s 501(2), would be open to applicable merits review. The proper application of that review was not therefore being denied. If the Tribunal on a review of the decision to cancel the appellant’s visa reached the same view as it had previously on the non-satisfaction of s 501(2), the respondent would be bound by that on the decision to cancel the applicant’s visa.

142 Secondly, the decision of the Tribunal in its terms did not bind the respondent beyond precluding him from concluding the appellant was not a person of good character for the purpose of the grant of a visa to him. The substituted decision was in its terms limited to its relevance to the act of possible refusal. It was a decision that s 501(2) did not apply to the applicant in consideration of refusal of his visa application.

143 Thirdly, I do not consider the contentions for the appellant receive any relevant support from reference to the Full Court decisions in Lynch v Minister for Human Services and Health Services or Riddell v Secretary, Department of Social Security. Each of those decisions concerned the scope of the power of a Minister to change the locus or character of decisions under relevant legislation. They do not support the broad submission made that the Act “should not be construed so as to remove the AAT’s decision-making powers.” The correct construction – based on a recognition of the separate character of the power to refuse to grant a visa and the power to cancel a visa – does not remove any decision‑making power of the Tribunal where review is sought of the relevant exercise of power.

144 For these reasons I do not consider the appellant’s grounds directed to improper exercise of power are made out.

Actual bias

145 In his reasons the primary judge said:

Subsequently he concluded:

In reaching that conclusion his Honour formulated the test or requirement of actual bias in these terms:

“It must be a pre-existing state of mind which disables the decision maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made. This analysis does not offer bias as a basis for admitting as a ground of review what the act expressly excludes, namely consideration of irrelevant factors or failure to consider relevant factors. The emphasis is upon a state of mind which affects decision making rather than elements of the process of decision making taken in isolation.”

He also said:

“If the fact of Mr Jia’s conviction of criminal offences could be shown to have so affected the Minister’s mind that he could not properly consider or evaluate the circumstances of those offences and other factors relevant to his decision, then actual bias affecting the decision would be demonstrated even though based upon factors relevant to it.

This approach to the concept of “actual bias” nevertheless permits the decision-maker to form a strong inclination or predisposition to a particular outcome on the basis of a partial knowledge of the relevant facts. That is provided the decision-maker is not thereby disabled from considering or unwilling to consider all relevant circumstances in coming to a decision.

The emphasis in this approach is not upon appearance or process but proper decision making.”

His Honour also referred to “other verbal formulae” adopted in the cases to like effect, namely Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 551 per Wilcox J; at 555 per Burchett J and at 562 per North J. Wilcox J referred to the approach adopted by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (Lockhart J), Federal Court of Australia, 18 October 1996, unreported where it was said that there will be actual bias only when preliminary views are incapable of alteration. Burchett J said that there must be pre-judgment so that the decision‑maker is unable or unwilling to decide the matter impartially although actual bias need not be confined to an intentional state of mind. North J referred to the condition being satisfied where the mind of the decision‑maker was not open to persuasion in favour of the applicant.

Appellant’s contentions

146 For the appellant it is contended that the primary judge set the test for actual bias too high. It is submitted that the correct test is that the decision-maker must bring an impartial unprejudiced mind to the resolution of the question to be decided, failing which there is actual bias: cf Ex parte Hoyts Corporation (1994) 119 ALR 206 at 210. Support is said to lie for this view in the reasons of the Full Court in Sun at 555 per Burchett J and at 562 per North J. Thus it is submitted that pre-judgment alone is sufficient to constitute actual bias. Support for this is also said to lie in the decision of the English Court of Appeal in R v Kent Police Authority, Ex parte Gowen [1971] 2 QB 662 at 669-670 per Lord Denning; at 672 per Salmon LJ and at 673 per Karmenski LJ.

147 The submission that preconceived views may amount to bias and not merely to an appearance of bias is said to have been stated by the High Court in R v Watson (1976) 136 CLR 248 at 264. Reliance is also placed on Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100-102 per Gaudron and McHugh JJ.

148 Accordingly, it is submitted that where there is actual pre-judgment in the sense of a firm conclusion being reached in advance of the matter coming before the decision‑maker for determination, actual bias will thereby be constituted without any need to show that the decision‑maker’s mind is fixed and incapable of either proper consideration or of alteration. The primary judge’s finding that the respondent had formed a view strongly adverse to the conclusion that the appellant was of good character should be seen, it is submitted, as a finding that the respondent had pre-judged the issue of the appellant’s character before the question of cancellation was referred to him for decision in June 1997. Such pre-judgment it is said constitutes actual bias.

149 In the course of oral support of these arguments counsel for the appellant accepted that this Court was in as good a position as the primary judge to decide the issue of actual bias: see Warren v Coombs (1979) 142 CLR 531 at 552.

150 Counsel for the appellant said that before the primary judge it had been argued that the principles of Jones v Dunkel should apply in that the respondent had not given reasons and not appeared to justify the decision which is made so that certain inferences could be drawn from that and from the facts. These facts included the May and June 1997 minutes to the respondent, the respondent’s statement on radio and his letter to the President of the Tribunal. It is said that the evidence as a whole quite clearly indicates the respondent had made up his mind prior to the matter coming before him for the decision on whether or not to cancel the visa in June 1997. Properly applied the test of actual bias should mean, it is submitted, that the respondent did not have an impartial and unprejudiced mind at the time. It is argued that there could not be a clearer case of the respondent having made up his mind in advance and been determined to pursue that view to the end. It is said it is open to inference that when the Minister accepted the advice of the 23 April 1997 he did so only to pursue it with the subsequent action under s 501, this following from the conditional character of the advice.

151 Counsel for the appellant also stated that it had been agreed in the proceeding before the primary judge that the appellant would not seek to subpoena the respondent to be cross‑examined. At the same time the parties had entered into an agreement limiting the extent of the pre-decision-making attitudes held by the respondent. These are recorded in the reasons of the primary judge.

152 Counsel for the appellant accepted that the correct test was whether there had been pre-judgment. In his submission the finding by the primary judge was a finding that the point of pre-judgment had been reached.

Respondent’s contentions

153 For the respondent it is contended that the primary judge applied the correct legal tests as recognised in Sun’s case so that there was no error of law. He submitted a decision‑maker is only actually biased if his or her mind is shut irrevocably to the possibility that the decision ought to be otherwise. It is said that the test simply does not catch a decision-maker approaching the matter with strong views or having a strong pre-disposition to a certain course of action.

154 Counsel accepted that actual bias in the circumstances could only be established as a matter of inferences and those inferences were open to be drawn by the appellate court. However, that court should only interfere if inferences which it thinks manifestly ought to have been drawn were not drawn.

155 In his submission the evidence in this case did not result in that position being reached. Referring to the May and June minutes to the respondent, counsel submitted that they showed a balanced appreciation of the relevant circumstances and it was open to inference those matters were taken into account by the respondent when he came to make his decision. It would follow by way of inference that his mind was not shut as to the possibility of not acting under ss 501 and 502. He denied that this put a premium on form.

156 Finally counsel for the respondent submitted that Ministers of the Crown as a consequence of the nature of their portfolios are likely to hold views, even strong views, on many matters. However it was of the essence of the democratic system that they could be persuaded to change their minds for all sorts of reasons.

Reasoning

(1) Test of “actual bias”

157 The ground of jurisdiction based on actual bias provided for in s 476(1)(f) has been considered in a number of authorities to which the Court was referred and from which it is not necessary to make extensive citation here. The paragraph was considered by the Full Court in Sun Zhan Qui. Wilcox J at 551 accepted actual bias involved a disposition to “approach the issues in the case otherwise than with an impartial and unprejudiced mind: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.” He pointed out it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested: Re R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264. He continued:

“…Lindgren J referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Fed C of A, North J, 24 June 1996, unreported) that s 476(1)(f) requires an applicant to show ‘that the tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case’. That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (Fed C of A, Lockhart J, 18 October 1996, unreported). He made three points. First, the fact that a decision‑maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Secondly, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Thirdly, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm.”

At 555 Burchett J said:

“Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. On this basis, the appellant relies on various aspects of the tribunal’s decision as explicable only, or at least most naturally, by bias. When the court examines the material bearing on this issue, I think it should interpret the words of s 476(1)(f) in their natural sense. The use of the word ‘actual’ strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law.

…

In my opinion, the statute, when it used Devlin LJ’s expression ‘actual bias’, substituted a test that looks to whether the tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say ‘at least in some respect’ because the statute extends to the situation where ‘the decision was … affected …by actual bias’. The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong‑headedness, whether in law, logic, or approach.”

North J at 563 said that where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances: Re Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224. He said that case demonstrated proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, taken together, form the whole picture leading to the conclusion of pre-judgment. It was, he said, unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. In his view the case also demonstrated that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant.

158 It will be observed from this that for actual bias to be established there must be evidence of “a closed mind to the issues raised”, “preliminary views incapable of alteration”, prejudgment of the case at least in some respect, real although not necessarily intentional.

159 In R v Kent the question was whether a medical practitioner who had expressed a view adverse to an applicant should determine whether the applicant was permanently disabled under the Police Pensions Regulations 1971. It was held such a decision was a quasi-judicial decision requiring procedural fairness. Lord Denning said at 670:

“That brings me to the first question: was it proper for the Kent police authorities to refer for decision this question to Dr. Crosbie Brown? I must say I think it was not. Dr. Crosbie Brown was disqualified from acting. He had already expressed an opinion adverse to Chief Inspector Godden. As early as July 23, 1970, Dr. Crosbie Brown had said that the chief inspector was suffering from a mental disorder. Dr. Crosbie Brown acted on that opinion by putting him on sick leave. He has put his opinion on affidavit. He has committed himself to a view in advance of the inquiry. I think it would be impossible for Dr. Crosbie Brown–who is just a general medical practitioner and not a consultant-to bring a completely impartial mind to bear upon the matter. In any event, to the person affected by it, Chief Inspector Godden, it must inevitably appear that Dr. Crosbie Brown cannot bring an impartial judgment to bear upon the matter.”

Salmon LJ agreed at 672. Karminski LJ at 673 considered it would be almost impossible for Dr Brown to be impartial in circumstances where he had formed a view earlier. It will be noticed this decision related to issues of procedural fairness rather than actual bias: cf Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 210.

160 In Laws v Australian Broadcasting Tribunal at 100 Gaudron & McHugh JJ said:

“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”

Their Honours (at 101-102) distinguished Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Reg v Watson as cases where settled views had been reached so that judges were appropriately disqualified from hearing matters to which those views related. Although this dicta addresses the issue of reasonable apprehension of bias it has been relied upon to inform a consideration of the requirements of actual bias: Durairajasingham v Minister for Immigration and Ethnic Affairs Davies J, Federal Court of Australia, 11 November 1997, unreported and cf Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281.

161 I accept that, as the appellant submits, the correct test of actual bias is whether pre‑judgment has occurred – that is, beyond a firmly or even strongly held view to the point where the view is not open to change by the relevant facts falling for consideration. This is exactly how the primary judge understood the test of actual bias. In my opinion he acted on a correct understanding of the relevant law and did not fall into error in that regard.

(2) Inferences drawn

162 The case for actual bias before the primary judge was put in relation to the following circumstances:

“(a) The appeals pursued by the Minister in the Federal Court against the successive decisions of the Administrative Appeals Tribunal which appeals in each case included the ground that the Tribunal’s decision was so unreasonable that no reasonable decision-maker could reach such a decision.

(b) The Minister’s personal and public criticism of the Administrative Appeals Tribunal in relation to its decision concerning Mr Jia on radio on 14 April 1997.

(c) The Minister’s personal involvement in the decision to proceed with a course of action which involved granting and then cancelling Mr Jia’s visa.

(d) The Minister’s clearly expressed (but mistaken) view of the law that Mr Jia having been convicted of a serious crime and imprisoned could not be a person of good character.

(e) The Minister’s criticism of the Administrative Appeals Tribunal’s decision in his letter to [the President of the Tribunal] dated 30 April 1997.

(f) The Minister’s decision to exercise the power given under s 502 to declare Mr Jia an excluded person.

(g) The failure of the Minister to give any personal evidence to this Court as to his state of mind.”

163 Paragraph (b) was a reference to the statement by the respondent in a radio interview on 14 April 1997 when he said:

“I don’t believe you are of good character if you’ve committed significant criminal offences involving penal servitude.”

Asked what power he had to overturn the Tribunal’s decision relating to the appellant and whether he could ask for a report or appeal, the Minister answered:

“I’m considering what steps I can take and there are some avenues. One of the suggestions that’s been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential costs might be to the community if it opens up a whole host of other possible appeals to the Federal Court.”

The relevant criminal offences were sentences totalling six years three months imposed on the appellant for sexual penetration, threat of unlawful harm, unlawful detention and unlawful assault. The former was a reference to a decision of the Tribunal made on 14 March 1997 to the effect previously set out.

164 Paragraph (e) was a reference to the following statement in that letter:

“That persons such as Mr Jia can be found to be of “good character”, despite his recent conviction for a serious crime undermine the Government’s ability to control entry into Australia on character grounds. I am concerned that this may set a precedent for decisions by the AAT in the future. To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations. Although I recognise that AAT decisions are not precedential, as a matter of law, such decisions may be viewed by the Tribunal and officers in determining the character requirements under s 501 as the acceptable standard. It would undermine the Government’s desire to protect the Australian community.” (Emphasis added)

He referred to another case and then continued:

“The significance of these two cases is that they show that the AAT has on occasion misconstrued the tests involved in character decisions. They also illustrate, to my mind, a tendency on the part of the Tribunal to afford greater weight to the interests of the individual and their family than to the protection of the Australian community and the integrity of Australia’s entry programs.” (Emphasis added)

He concluded:

“The community’s expectations of the Government to prevent entry or remove or deport will not be met if the Tribunal overturns the Government’s decisions in relation to those who are not of good character or have committed serious crimes. The recent decisions of non-citizens convicted of serious criminal offences who have had their deportation orders overturned, as well as decisions to overturn the refusal of visas on character grounds, have heightened community concerns especially where a number of these have re-offended. The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia.”

There is no evidence the Minister resiled from or ceased to entertain these views.

165 The reasoning of the primary judge by way of inference on all those circumstances was expressed as follows:

“The question is whether by [the respondent’s] mental state he was disabled from or unwilling to have regard to other relevant circumstances.

The Minister’s case may not have been helped by his public discussion of Mr Jia’s case on radio in a way that exposed his views adverse to Mr Jia. For the hypothesis is then open that having taken a public position on what is undoubtedly a politically sensitive case the Minister would find it difficult to appear to resile from that position. On the other hand, he did leave himself an escape route in the radio interview referring as he did to the need to “weigh up” whether it was proper for him to adopt the procedure of granting the visa and then cancelling it on character grounds. Moreover, the Minister is an elected official, accountable to the public and the parliament and entitled to be forthright and open about the administration of his portfolio which, it is common knowledge, is a matter of continuing public interest and debate.

The Department had provided the Minister with a comprehensive minute in advance of his decision which drew attention to factors both adverse and favourable to Mr Jia.

166 In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 Beaumont and Lee JJ said:

“The court must be satisfied that the judgment of the trial judge was erroneous and it may be so satisfied if it reached the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence and the court would be unlikely to be so satisfied if it was shown the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made."

In my opinion the inferences to be drawn from all the circumstances relied on for the appellant including particularly the respondent’s statement on radio on 14 April 1997 and his letter to the President of the Tribunal was that the respondent’s view had passed the point of strong prejudgment and reached the point where the respondent was precluded from consideration of all the relevant circumstances in relation to the appellant. The conclusive circumstances for the drawing of this inference are:

(1) The expression of belief by the respondent that a person (which must include the appellant) could not be of good character if they have committed significant criminal offences. The reference to “weighing up” was only directed to the propriety of the course proposed, not to the circumstances relevant to the appellant.

(2) The respondent considered that if the appellant was found to be of good character the Government’s aims would be undermined. The respondent as a Minister of the Crown could not therefore embark on a course in relation to the appellant which he considered had that effect.

(3) The Tribunal decision should not set a precedent for the future. The respondent thereby ruled out that he would act to the same effect in the future in relation to the appellant.

(4) The Tribunal decision warranted condemnation. The respondent would not therefore have embarked on a course in relation to the appellant which he considered brought that result.

(5) The Tribunal’s decision involved a misconstruction of the tests in relation to character decisions. The respondent would not therefore have been prepared to apply the subsection in possible favour of the appellant as the Tribunal had done.

167 By those expressions and statements the respondent precluded himself from any possible acceptance of the view that the appellant could be found now to be a person of good character despite his past criminal record. The balanced character of the Departmental memoranda to him cannot disguise the position which the evidence shows the respondent had reached in his mind.

168 The drawing of these inferences, for which the appellant bears a heavy onus, is aided by the application of the Jones v Dunkel principle applied to the absence of any evidence from the respondent when issues were raised on the evidence for him to answer.

169 The Jones v Dunkel principle may be applied in respect of a Minister: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 66 FCR 40 at 62. The respondent was on the evidence relating to his statements required to explain or contradict why they did not have the consequence that he would not allow any circumstances in which the appellant could be found to be of good character. The failure to give such evidence is unexplained.

170 The respondent being precluded by his own statements from concluding the appellant was of good character it inevitably followed he had to be satisfied the appellant, as a person with a past criminal record, was not of good character. This had the consequence s 501(2) applied to the appellant. The condition for the triggering of the Minister’s discretion to cancel the visa under s 501(1) was therefore made out. The exercise of that discretion was therefore directly infected by the view on which there was actual bias.

171 Conscious again of the heavy onus necessary to establish actual bias, I therefore conclude the primary judge failed to draw inferences which should have been drawn. I would allow the application for review on the ground of actual bias.

172 In doing so I do not lack appreciation of the opinion held by the respondent (as recorded in the reasons of the primary judge) that “most Australians would be surprised that a non‑citizen with such convictions has been found to be of good character.” However the law requires a decision-maker exercising the statutory power under s 501(1) relating to existence or non‑existence of good character to consider all the relevant circumstances including circumstances which have developed since the fact of conviction. The law therefore admits of the possibility that facts could emerge showing achievement of good character despite prior convictions. For it not to do so would be to deny the possibility of any rehabilitative effect of the application of the criminal law. Parliament may choose to negate those principles and to preclude such considerations but unless it does so, the decision-maker acting under s 501(2) must face the possibility, remote as it almost always may appear, that a finding of good character at the time of the decision could be properly made despite prior convictions for serious offences.

173 In my view this has been recognised and decided by the Full Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136. In the reasons of the Court (Burchett, Branson and Tamberlin JJ) it was said at 140:

“[The Deputy President] commented:

In my view these guidelines go well past the bounds of reason if applied literally. To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of twelve months or more, no matter when that conviction took place, is quite unreasonable. It is necessary in assessing character to look at all relevant circumstances including the age of the convictions.

We think the learned deputy president’s comment is plainly justified. The guidelines are both inhumane and irrational. For a person to ‘be taken to be not of good character’, apart from special circumstances, upon any such basis would, of course, also be quite inconsistent with s 501(2), the provision defining the minister’s power, which authorises satisfaction in relation to the actual present state of a person’s character – ‘is not of good character’. ”

In relation to s 501(2) the Court said (at 141-142):

“We think the key to the understanding of s 2(a) is to be found in its object – satisfaction on the issue whether a person is not of good character. In deciding whether he is so satisfied, the minister is required, by the phrase ‘having regard to’, to look at the conduct of the person the subject of the enquiry. Of course, an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters. 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’.

It was these understandings of the law which were not recognized in the respondent’s statements. Those statements, properly understood, denied these matters. In so doing they transposed a strongly held prejudgment to one of which, in the respondent’s mind, did not admit of any change. In those circumstances the proper inference from the statements is that they established actual bias, as rare and as difficult as it may be for that inference to be drawn.

Error of law as to the meaning of good character

174 Before the primary judge it had been argued that the respondent was operating under a mistaken view in that he considered a person who was convicted of a serious crime could not as a matter of law be a person of good character. In support of this argument the appellant before the primary judge had relied on (a) the respondent’s own departmental guidelines as contained in par 8.5.2 of its Procedures Advice Manual; (b) the statement made by the respondent in his radio interview; (c) the respondent’s letter to the President of the Tribunal; and (d) the reliance in the respondent’s two appeals to the Federal Court on the grounds that the Tribunal had erred in law as to the meaning of “good character” under s 501.

175 The primary judge considered that the guidelines as contained in par 8.5.2 of the Procedures Advice Manual were “unexceptional”. He considered the radio interview and the letter were not of significance in determining whether the respondent may have been under a mistake of law at the time when he made his decision on 10 June 1997, particularly having regard to advice that he had received at that time in the June minute.

176 For the appellant it is submitted that nevertheless the decision of the primary judge in this respect may well have been crucially influenced by his view that the Departmental Guidelines were unexceptional. It is said this was incorrect because those guidelines as contained in par 8.5.2 had previously been held by this Court to be contrary to the correct test for “good character” as contained in s 501: see Baker v Minister for Immigration and Multicultural Affairs (1997) 45 ALD 136 at 140 and 144.

177 Accordingly it is submitted that his Honour’s error in that respect affected his decision that there was insufficient evidence to find the respondent was affected by an error of law as to the meaning of good character. It is said that this finding of fact should be reconsidered and determined by this Court or remitted for further consideration.

178 For the respondent it is said that the finding of unexceptionability in the Department’s Procedures Advice Manual was not material to the decision and was not an error of law nor is it an error of law within the meaning of s 476(1)(e) of the Act.

179 Additionally it is submitted as there was no reference to par 8.5.2 of the Procedures Advice Manual in the June minute, there was no basis for the appellant’s contention that the respondent acted in accordance with the rule or policy that the criminal convictions against the appellant meant he was not of good character without regard to the merits of his case.

180 There is no evidence that the respondent acted in accordance with the Procedures in making his decisions of 10 June 1997. The ground of appeal is formulated with regard to the Procedures. Such reference does not therefore identify any error of law in the reasoning of the primary judge.

Error of law – seriousness of circumstances and national interest

181 Section 502(1)(b) provides that one of the conditions of the Minister proceeding under that section is that if he “decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person”. It is said before the Minister can proceed to exercise the power under that section he or she must be satisfied there are relevant serious circumstances and that it is in the national interest.

182 In those circumstances it is submitted for the appellant Parliament could not have intended the respondent could use s 502 only to withdraw matters from the review of the power of the Tribunal. The use of the power under s 502 could not be said to be in the national interest where it was prompted by a prior decision of the Tribunal on the same matter.

183 In the reasons of the primary judge it was stated that the seriousness of the circumstances giving rise to the making of a decision under s 502 of the Act and the question of the national interest are matters peculiarly for the assessment by or within the province of the respondent. For the respondent it is submitted there is no error of law to be found in this in that it is consistent with authority to the effect that where a Minister’s decision requires an assessment as to the public or national interest the court should be slow to find reviewable error in that decision: Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537 at 565 and Minister for Immigration and Multicultural Affairs v Gunner at p 13-14.

184 I agree with the submissions for the respondent. The primary judge did not err in law in the manner contended for.

Conclusion

185 For the above reasons I would allow the appeal on the ground relating to actual bias only.

I certify that the preceding sixty‑eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate:

Dated:

Counsel for the Applicant:	Mr H Christie

Solicitor for the Applicant:	Legal Aid Western Australia

Counsel for the Respondent:	Mr R R S Tracey QC with Mr P R MacLiver

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	19 November 1998

Date of Judgment:	15 July 1999

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