FEDERAL COURT OF AUSTRALIA

Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277

MIGRATION LAW - appellant refused permanent entry permit on the grounds that not of good character - s 501(2)(a)(ii) the Migration Act 1958 (Cth) - test to be applied in determining whether person is not of good character - whether breach of natural justice by the Administrative Appeals Tribunal in deciding issue of character against appellant on different basis from that advanced by respondent, without notice to appellant.

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Migration Act 1958 (Cth), s 501

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 cited

Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 cited

R v Lewis (1988) 165 CLR 12 cited

Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 cited

Fletcher v Commissioner of Taxation (1988) 19 FCR 442 cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited

BRIAN GERALD JAMES GOLDIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 115 OF 1999

SPENDER, DRUMMOND AND MANSFIELD JJ

14 SEPTEMBER 1999

BRISBANE

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders made by the learned primary judge and the Tribunal be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard according to law by a Tribunal differently constituted.

3.                  The respondent pay the appellant’s costs, including reserved costs, of the proceedings before the learned primary judge and of this appeal, to be taxed.

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

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from the decision of a judge of the Court dismissing an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal which affirmed the decision of a delegate of the Minister to refuse the appellant’s application to remain permanently in Australia.  While in Australia in 1993 on his second visitor’s visa, the appellant married a Ms Weiss.  The Tribunal described the decision challenged as that refusing his application for a permanent resident (spouse (after entry)) entry permit, which was transformed into an application for a transitional (permanent) visa by virtue of the Migration Reform (Transitional Provisions) Regulations 1994.

2                     One of the matters which the Tribunal was required to consider was whether the applicant was “not of good character” within the meaning of that expression in s 501(2) the Migration Act 1958 (Cth).  It was the determination of the Tribunal on this issue adverse to the appellant that was said, in the proceedings at first instance in this Court, to be affected by error of law.  The Tribunal also considered whether the residual discretion to grant the appellant the visa he sought should be exercised in his favour, notwithstanding its finding that he was not of good character.  The Tribunal declined to do that.  But if the Tribunal’s determination on the character issue was flawed by error of law, it is so central to its decision to reject his application for the visa that the Tribunal’s decision cannot stand.

3                     Section 501 provides:

“(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)        …

(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.”

4                     In terms, s 501(1) confers a power on the Minister, exercisable by him at his discretion, to refuse to grant a visa if satisfied that the person is not of good character.  But in evaluating the appellant’s visa application, the Minister was required to consider how he should exercise that discretion.  Clause 801.223 in Sch 2 to the Act in force at the relevant time required the appellant to satisfy “public interest criteria 4001 to 4004 and 4007 to 4009”.  Clause 4001(1) in Sch 4 to the Act under the heading “Public Interest Criteria” required a visa applicant to meet “the requirements of sub-clause (2), (3) or (4)”.  Sub-clauses (2) and (3) are only satisfied if the Minister considers s 501 and reaches a conclusion either that there is no evidence or that there is insufficient evidence of anything within the section that would justify refusal of the visa on the ground that the applicant is not of good character.  However, if the Minister considers s 501 and concludes that the particular person is not of good character, sub-clause (4) nevertheless enables that person still to satisfy public interest criterion 4001.  It provides:

“(4)     An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa.”

5                     The issue of central importance in this appeal is whether the Tribunal fell into error in its assessment of the appellant’s want of “good character” under s 501(2)(a)(ii), ie, by reference to “the person’s general conduct”.  The Full Court considered both these expressions in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.  At 195, it rejected the notion that a person’s “general conduct” could not encompass isolated acts, saying at 195:

“… We do not think there is any warrant for extracting, from the broad word ‘general’, a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual.  Just as a person’s criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.”

6                     The Court concluded by saying that it considered the parliamentary intention of s 501(2)(a) to be “simply to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories”, viz, the person’s past criminal conduct and all his other conduct.  The Court said that the expression “good character” in the sub-section was correctly explicated by what Lee J had to say in Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 431 - 432:

“… 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.  …

Notwithstanding the breach of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance.  Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.

…

In the 1989 Regulations the connection between the requirement that a person be of good character and the protection of the interests of the public was clearly expressed.  In the 1993 Regulations such a connection is implied.”

7                     Lee J also pointed out at 433 that:  “the range and purpose of requests for entry to Australia may require different emphases to be placed on matters that are relevant to each application” and said:

“Undoubtedly, the absence of harm to the Australian community from the issue of a visa of the type for which the appellant had applied was relevant to the meaning of good character as one of the qualifications for the grant of that visa.  The task for the Minister was to have regard to the ordinary meaning of those words as modified by the Regulations and to the scope and purpose of the visa sought to be granted and to apply common sense in determining whether the appellant ‘satisfied’ the prescribed criterion that he be of good character.”

8                     Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance.  The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

9                     In the proceedings before the learned primary judge, two errors of law were said to exist in the Tribunal’s determination on the character issue.  First, it was said that the Tribunal erred in treating, as relevant to this issue, the appellant’s failure to return to Scotland to have resolved fraud charges that were outstanding against him.  Secondly, it was said that the Tribunal determined a number of issues against the appellant upon which it relied in reaching its conclusion that he was not of good character in respect of which the appellant was denied procedural fairness.  The appellant now complains of the learned primary judge’s refusal to accept that the Tribunal made these two errors of law.

10                  The Tribunal’s decision is remarkable both for its length and the extent to which it descended into the minutiae of the relationships between the appellant and each of Ms Weiss (his wife), Ms Spence (the woman with whom he formed a relationship at about the time of the break-up of his marriage) and Ms Finnis (his current companion).  The Tribunal expressed its conclusion that the appellant was not of good character in par 176 of its reasons, as follows:

“Looking then at all these matters, I have concluded that Mr Goldie is not of good character.  The lack of honesty and integrity which he has displayed in his dealings with the Department and his lack of integrity (in the sense of wholeness, soundness and uprightness) in not confronting the allegations of fraud in Scotland are not outweighed by the good reports he has received from some of his past employers or Mr Grant’s personal commendation of him.  I accept that he has, over years and except in relation to one position, displayed diligence and efficiency in his workplace.  That is not enough to overcome the personal qualities he has displayed.”

11                  Resolution of the appeal requires some understanding of how the Tribunal reached this conclusion.  This can be gathered from pars 161 to 175 of its reasons.

12                  The Tribunal noted that there were fraud charges, based upon the use of worthless cheques and involving a sum totalling about £93,000, on foot against the appellant and two others in Scotland.  A warrant had been issued there for the appellant’s arrest.  The Tribunal also noted that Scottish Crown counsel had decided, on the evidence available to the prosecution, not to apply for the appellant’s extradition from Australia.  The Tribunal considered the evidence obtained by the respondent from the Scottish prosecuting authorities, but declined to make any finding as to whether or not the appellant was guilty of any offence.  Accordingly, the Tribunal held that it was not reasonably satisfied that the appellant had engaged in criminal conduct and so refused to find that he was not of good character within s 501(2)(a)(i).

13                  The Tribunal then turned to s 501(2)(a)(ii).  It accepted the evidence of Ms Weiss and Ms Spence that the appellant had separately told each that he had engaged in fraudulent activity in Scotland.  However, it expressly refused to find that what he told these women showed he had, in fact, engaged in criminal conduct there.

14                  The Tribunal found that the appellant had made a decision not to return to Scotland to “clear his name”.  But it also found that he was within his legal rights in doing that.  Importantly, it made no finding as to his reasons for not returning.  The Tribunal took this course in circumstances in which Mr Goldie gave sworn evidence, on which he was cross-examined, that he had not engaged in any criminal conduct in the UK and that he had good reasons, associated with the employment he had obtained in Australia, for having decided not to return to Scotland to give the authorities there the opportunity of prosecuting him that were consistent with his being of good character.  The Tribunal appears to have been of the opinion that the appellant did have a period of opportunity between jobs here when he could, if he wished, have gone back to Scotland.  But that is as far as it went in expressing its view.

15                  The Tribunal then said that the appellant’s actions in not returning to Scotland to answer the charges must be assessed in the context of the migration laws which require that those coming within their purview act honestly and with integrity.  In par 170, it said that the appellant’s decision not to return to Scotland must be judged “in the context of his asking that he be regarded as a person of good character in the context of the migration laws” and it was “[j]udged in that context [that] the scales tip against his being regarded as a person of good character”.  The significance the Tribunal attached to the failure to return to Scotland is made clear in par 176 of its reasons where it said that showed lack of integrity or uprightness on the part of the appellant, something it regarded as relevant to the character issue.

16                  The Tribunal went on to say that, in addition to his failure to return to Scotland, regard should also be had “to his behaviour generally” in determining whether he was not of good character.

17                  The Tribunal turned to his relationship with Ms Weiss.  It observed that the relationship was punctuated by evidence of violence by each.  Having found that the appellant and Ms Weiss were violent to each other, the Tribunal made a finding that “this is not necessarily evidence of bad character”.  It then added the observation that “what can be evidence of bad character is the actions people take outside the relationship as it were”.  It is not clear what the Tribunal here meant.  Though the Tribunal moved on to consider certain of the appellant’s dealings with others, it never explained how it considered his violence to Ms Weiss might be of relevance, even indirectly, to whether he was not of good character.

18                  It was at this point that the Tribunal turned to the letter dated 20 November 1994 written by the appellant to the respondent’s Department in which he told the Department that he and his wife had just become reconciled and they intended taking a short holiday in Scotland together, statements the Tribunal found to be “not accurate”, to the appellant’s knowledge.

19                  The question whether the relationship was on foot in November 1994 was of relevance to the appellant’s claim to residency because the marriage took place less than two years before, in March 1993.  In late 1994, the criteria prescribed by the Act for the sub-class 801 entry permit sought by the appellant included requirements that he, at the time his application was determined, be in a marital relationship with his wife that was both genuine and continuing and that that relationship must have been in existence for at least two years after the visa application was made, unless it had earlier broken up in circumstances in which the appellant had obtained a domestic violence order against his wife.

20                  The appellant’s domestic violence order was the last matter to which the Tribunal turned.  He and Ms Weiss married on 27 March 1993; by October 1994 they had separated.  Soon after, in late November 1994, the appellant initiated proceedings for a domestic violence order against his wife. On 2 November 1994, he obtained a temporary order, effective to 30 November 1994; the Tribunal noted that this order was extended on 13 December 1994, in proceedings in which the wife participated.  The Tribunal said it took into account on the character issue Ms Spence’s evidence of the appellant “telling her that, in obtaining a protection order, he had found a loop hole in the [migration] system and secured his residency via the back door”, which it accepted in preference to that of the appellant.  But the Tribunal went on to say that, “[t]aken alone [the appellant’s] statement does not reflect on his character either way”, because “[i]t may be that he obtained his protection order on proper grounds”, a comment that reflects what it had earlier said about the appellant and his wife being violent to each other.

21                  The Tribunal nevertheless used the evidence concerning the domestic violence order against the appellant.  It considered that what he said to Ms Spence about finding the loophole, when coupled with what he said to her about trying to stay on his wife’s good side so that she would not advise the Department of their separation, “takes on a different character”, viz:

“It takes on the character of a statement of a person who will take whatever steps he needs in order to achieve his purpose.”

22                  In the absence of a finding, which the Tribunal deliberately declined to make, that the appellant sought the order not from any concern about his wife’s behaviour but only to assist his visa application, it is difficult to see how his “loophole” comment to Ms Spence provides any support for this particular finding; this difficulty is reinforced by the Tribunal’s acceptance that he may have been justified in seeking the order against Ms Weiss.

23                  The Tribunal then summarised its conclusions in par 176 of its reasons set out above.  It is apparent from what it said in par 176 that the Tribunal found in the appellant’s lack of honesty in his dealings with the Department ground for its finding that he was not of good character.  Lack of such honesty could be said to have been shown by the appellant’s inaccurate letter of 20 November 1994 and by his comment to Ms Spence about trying to ensure his wife would not reveal their separation to the Department, even if not by his “loop hole” comment.  But it is quite clear that all the evidence which the Tribunal was prepared to accept as showing a lack of candour by the appellant towards the Department was still not, in its opinion, sufficient by itself to justify that adverse finding:  the Tribunal considered that it also needed to take into account his failure to return to Scotland for the scales to “tip against his being regarded as a person of good character”.

24                  The Tribunal’s explanation for this conclusion suggests that it had real difficulty in identifying a convincing foundation for its finding that the appellant was not of good character.  Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character:  it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis.  However, no challenge being made to the Tribunal’s decision on this ground, so it is unnecessary to pursue this question.

25                  The way the Tribunal arrived at its conclusion that the appellant was not of good character takes on special significance in the appeal when regard is paid to the case the respondent unsuccessfully tried to make out on this issue.  This is set out in its statement of facts and contentions filed in accordance with par 4 of the Tribunal’s general practice direction.  The first limb of this case is contained in pars 1 to 4 of the contentions:  the respondent asserted that these matters “must inevitably lead to a conclusion that he is not of good character”.  Here, the respondent unequivocally said that the evidence showed that the appellant had committed serious fraud offences in the UK.  This evidence comprised information received from the UK police, the confessions of guilt in relation to the frauds he was said to have made to both Ms Weiss and Ms Spence and some other evidence.  The significance of the appellant’s failure to return to Scotland to answer the fraud charges was said by the respondent to lie in it constituting conduct by the appellant that displayed a consciousness of his guilt in respect of those offences.  The Tribunal’s reasons show that it rejected the case the respondent here tried to make out.

26                  The second limb of the respondent’s case is introduced by par 5 of its contentions:  the respondent here relied on three additional matters which it was said “also go to show that the applicant is not of good character”.

27                  The first was the appellant’s allegedly false denial of involvement in the UK fraud made to an officer of the respondent’s Department.  The Tribunal, however, declined to take the respondent’s evidence on this matter into account in reaching its decision on the question of good character.

28                  The second of the additional matters was the respondent’s allegation that he was a violent man, as evidenced by his behaviour towards both Ms Weiss and Ms Spence.  The Tribunal, after an extremely detailed review of his relationship with both women, refused to make the finding contended for by the respondent.  All it did find was that his relationship with Ms Weiss was characterised by violence displayed by each to the other; it made no finding in respect of the respondent’s allegation that the appellant’s generally violent nature was also evidenced by his behaviour towards Ms Spence.

29                  The final additional matter relied on by the respondent was the contention that the appellant sought and obtained the domestic violence order against Ms Weiss fraudulently, in that he did not genuinely consider that he was at risk of harm from her and that the only reason he applied for it was to allow his application for permanent residence to remain on foot after his relationship with Ms Weiss had ended.  There was justification in the voluminous evidence of Ms Weiss’ behaviour for the Tribunal observing that the appellant may, in effect, have been entitled to apply for and obtain the domestic violence order; its finding, notwithstanding accepting that he did make the “loop hole” statement to Ms Spence, that that “does not reflect on his character either way” leaves no room for doubt that the Tribunal rejected the respondent’s case that the order was sought fraudulently.

30                  It is apparent from the closing argument of the respondent’s advocate to the Tribunal that the respondent did not resile from or modify in any way the two-limbed case, set up in his statement of facts and contentions, that the appellant should fail in his challenge to the decision of the delegate that he lacked good character because of his involvement in the fraud offences in the UK (sufficient of itself to show his want of good character) and because of the additional matters referred to, also said to show absence of good character.

31                  It is to be noted that in his statement of facts and contentions, the respondent did not refer anywhere to the appellant’s inaccurate letter to the Department of 20 November 1994.  That was the subject of cross-examination and, in closing address, the respondent’s counsel submitted that the appellant’s explanation for writing the letter - incorrectly anticipating a resumption of the matrimonial relationship - should not be accepted and that the Tribunal should infer from it that he wrote it “in the knowledge that he faced these fraud charges in the United Kingdom he was panicking that his life line, permanent residence in Australia, was under threat”.  It is clear that the Tribunal refused to accept that this was the explanation for the appellant writing this letter, even though it did find that it was, to his knowledge, inaccurate, and did take that into account in making its finding against the appellant.

32                  The gap between the case the respondent unsuccessfully sought to make out on the character issue, in an extended hearing over three days, and the way the Tribunal reached its own conclusion on that issue is well illustrated by the respondent’s unsuccessful closing submission that the appellant had committed the fraud and his marriage to Ms Weiss “was all part of [his] plan for avoiding having to return to the United Kingdom to deal with the fraud matters”.

33                  It is plain that the respondent failed to make out the case it set up to show that the appellant was not of good character.  It is clear that the Tribunal, having rejected the respondent’s case in all its essential elements, found that the appellant was not of good character on a different basis.

34                  It is convenient to deal first with the appellant’s contention that the learned primary judge erred in failing to find error of law in the Tribunal’s decision in that he was denied natural justice by the Tribunal in a number of respects.  It was submitted that the Tribunal used the evidence concerning the appellant’s failure to return to Scotland to answer the criminal charges, his inaccurate letter of 20 November 1994 to the Department and his comments to Ms Spence about the loophole he had found in the migration system, to reach its conclusion as to his want of good character, without giving the appellant any notice that it intended to attach significance to those matters different from that which the respondent asked the Tribunal to place upon them.  The appellant accordingly submits he was denied any opportunity to answer the only case on want of good character which the Tribunal ultimately found against him.

35                  It is well-established that before the Tribunal is entitled to make a decision against a party on a basis entirely different than that relied on by the other party, it must give the person affected notice that it is considering whether to make a determination adverse to him on that particular basis and a reasonable opportunity to deal with the case the Tribunal is contemplating.  See R v Lewis (1988) 165 CLR 12 at 16 - 17 and Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 at 1265 - 1266.  As was pointed out by this Court in Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 456, the question whether procedural fairness has been denied does not depend upon denial to a litigant of the opportunity to produce evidence that might tell against the basis upon which the Tribunal decided the case:  the opportunity of making relevant submissions is also an important ingredient of a fair trial.

36                  As to the first matter in respect of which the complaint of denial of natural justice is made, the respondent’s case was that the appellant’s failure to return to Scotland evidenced his guilt in respect of the fraud charges.  The Tribunal rejected that view of his failure to return.  Instead, it found a different significance in this aspect of the appellant’s conduct, viz, that it displayed a lack of the integrity “in the sense of wholeness, soundness and uprightness” to be expected from a person seeking a permit to enter Australia.

37                  Nothing appears in the transcript of the proceedings in the Tribunal that suggests it gave the appellant any warning that it might take that view of this matter.  Counsel for the respondent confirmed that the respondent in the proceedings before the Tribunal never argued that, irrespective of whether or not the appellant was guilty of the fraud charges, his failure to return to the UK to clear himself of those charges might nevertheless provide evidence of want of good character.  When counsel was asked whether the Tribunal took any action to draw to the appellant’s attention that it was considering whether his non-return might have significance in that way, all she could point to was some cross-examination of the appellant and submissions made by his counsel to the Tribunal which she said indicated that that consideration was “in counsel’s mind”.  The passages, however, fail to show that appellant’s counsel appreciated that the Tribunal might attach the special significance it did to the appellant’s decision not to return to the UK, even though it was not prepared to accept the respondent’s case that the appellant was guilty of an offence in Scotland and his failure to return revealed his guilty mind.  These passages show that the appellant’s counsel was concerned only to refute the respondent’s case that the appellant was not of good character because of his criminal activities in Scotland.

38                  The learned primary judge nevertheless considered that the appellant was not denied natural justice.  He arrived at this conclusion by referring first to the fact that the appellant had, in oral evidence, offered explanations for failing to return to Scotland to the effect that it was impracticable for him to do that; his Honour also referred to submissions in closing address made by appellant’s counsel to the effect that it was understandable that a person innocent of white collar criminal charges might nevertheless not disrupt his life in Australia to return to the foreign country to answer those charges.  But counsel’s submissions concluded with him saying:  “I submit that is not, in itself, evidence to establish that Mr Goldie has nothing [sic, anything] to hide.”  Counsel, to the end, was concerned only with refuting the respondent’s case that the appellant feared to return to Scotland because of a consciousness of guilt.  His Honour lastly referred to the answering submissions by the respondent’s advocate to the effect that the appellant’s explanation for not returning to Scotland should not be accepted.  These submissions were, as the transcript shows, made in the context of the respondent pressing for a finding that the appellant was not of good character because he was guilty of the fraud charges.  His Honour concluded:

“The applicant was fairly appraised (sic) that the respondent would seek to use the applicant’s failure to return to clear his name as conduct which reflected adversely on the character of the applicant.  The applicant in his evidence and by his counsel sought to explain the failure to return in a way which the applicant contended did not adversely effect (sic) his character.  The applicant was not denied natural justice in respect of this issue.”

39                  The learned primary judge fell into error here.  It is true that the appellant well knew that the respondent would use the appellant’s failure to return to clear his name as conduct which reflected adversely on his character.  But all that the appellant was given warning of in this respect was that the respondent would use that matter as evidence supporting its case that the appellant was not of good character because he was a criminal.  The whole point of the appellant’s complaint to his Honour and in this Court is that the Tribunal itself used that aspect of the appellant’s conduct to support its conclusion that he was of bad character, but on a basis wholly different from the only way in which the appellant was given any warning that that conduct might be used against him.

40                  His Honour also rejected the appellant’s complaint that the Tribunal denied him natural justice in relation to what his Honour referred to as “the issue of the domestic violence”.  In explaining his reasons for rejecting this challenge, his Honour began by referring to the way the respondent in par 8 of its contentions raised the issue of the appellant’s purpose in applying for a domestic violence order against his wife, viz, fraudulently, and solely to enable him to keep his application for permanent residence on foot after the end of the marriage relationship.  He referred at some length to the appellant’s cross-examination by the respondent’s advocate in which the latter sought to make out this assertion, including cross-examination, in this context, on the appellant’s letter to the Department of 20 November 1994 and then simply stated the following conclusion:

“The applicant’s counsel made submissions on ‘the issue of the domestic violence’.  There was no denial of natural justice in relation to the raising of this issue before the AAT.”

41                  All his Honour identified as having been drawn to the appellant’s notice on this issue was the respondent’s contention that he had obtained the domestic violence order fraudulently and that the appellant had been cross-examined on his letter of 20 November by the respondent in an attempt to make out that same case.

42                  At first instance the appellant did complain about lack of notice that this letter would be used against him.  There is, however, nothing in the appellant’s complaint that he was denied natural justice by the Tribunal in that respect.  The letter was in the material placed before the Tribunal well prior to the hearing.  Respondent’s counsel cross-examined on it.  Appellant’s counsel did not object to any of this cross-examination.  Although the respondent relied on the letter in support of his case that the appellant was not of good character because of his criminal activities in Scotland, he used the letter to show the appellant’s dishonesty in being prepared to mislead the Department.  The Tribunal made exactly the same use of that letter, viz, as evidencing the appellant’s want of honesty in seeking to mislead the Department.

43                  But the appellant’s complaint at first instance with respect to the domestic violence order was not that the evidence concerning the order was used against him, but something quite different, viz, that the Tribunal attached a significance to that and to what the appellant told Ms Spence about his reasons for obtaining the domestic violence order entirely different from that which the respondent sought to attach to this evidence; yet the Tribunal did not give any warning to the appellant at all that it might rely on that evidence in that way to reach its adverse conclusion.  The learned primary judge did not deal at all with this challenge made by the appellant to the Tribunal’s decision.  The Tribunal, for the reasons already given, had denied the appellant natural justice on this issue too.  The learned primary judge was in error in not recognising that.

44                  The Tribunal’s decision adverse to the appellant on the character issue was, in part, based on the significance it attached to the failure to return to Scotland and to the evidence about the domestic violence order.  The appellant was denied natural justice in respect of both:  at the very least, the Tribunal denied the appellant the opportunity of making relevant submissions by deciding the issue of character adversely to the appellant on the basis it did without putting him on proper notice that it might do that.  The Tribunal’s decision was therefore flawed with error of law for this reason.  The learned primary judge was wrong in not setting aside the Tribunal’s decision on that ground.

45                  It was further submitted, on behalf of the appellant in the proceedings before the learned primary judge, that the Tribunal had erred in concluding that it was fatal to his claim that the appellant did not return to Scotland.  His Honour dealt with the argument in this way:

“At the outset it should be said that the AAT made no such finding.  The AAT also acknowledged that the applicant was not obliged at law to return to Scotland.  What the AAT did was to look at the conduct of the applicant when he became aware of the existence of the warrant and his statements to others in respect of the charges made against him as relevant to a consideration of his general character for the purposes of s 501(2)(a)(ii) in contradistinction to the inquiry directed to his character for the purposes of s 501(2)(a)(i) of the Act.  It cannot, in my view, be said that the conduct of the applicant in the way in which it was used by the AAT concerning the existence of criminal charges in Scotland as set out above, is totally irrelevant to any consideration of his general character.  In those circumstances there is no demonstrable legal error in this aspect of the AAT’s decision.  In any event, this was not the only matter which the AAT treated as relevant to the question of the applicant’s character.  As Deputy President Forgie said after dealing with the criminal charges pending against the applicant and his response to them :

‘171.  That, however, is not the only issue to which regard should be had.  Regard should be had also to his behaviour generally.  …’

This the Deputy President did in her consideration of the applicant’s conduct in his dealings with the Department and in his obtaining a domestic violence order against his wife as a means of securing residence in Australia by allowing his application for permanent residence to remain on foot after his relationship with his spouse had ended.”

46                  In rejecting the appellant’s challenge to the Tribunal’s decision based on the use it made of his failure to return to Scotland, the learned primary judge fell into two errors:  firstly, his Honour treated that matter as one of sufficient significance to be relevant to the character issue and, secondly, he failed to acknowledge the decisive impact that matter had on the Tribunal’s conclusion that the appellant was not a person of good character.

47                  The Tribunal refused to make any finding that the appellant was or even might be guilty of criminal conduct in Scotland; it found that he was within his legal rights in declining to return to Scotland.  It refused to find what his reasons for not returning were.  Although it did not accept that his work commitments prevented his return, if he had wanted to go back to the UK, the Tribunal made no finding that his reason for not returning to Scotland to answer the charge was one capable of being regarded as casting a reflection upon his character.  It was not therefore possible for the Tribunal rationally to conclude that, even though a person is required to act honestly in seeking entry permission under the migration laws, the appellant’s failure to return to Scotland to answer the criminal charges of itself provided any indication at all of his not being a person of good character.

48                  The Tribunal appears from its reasons, and in particular, par 170, to have meant that this matter was a piece of evidence incapable by itself of showing want of good character, but capable, when accumulated with other evidence, of doing that.  But in the absence of the Tribunal making a finding as to his possible guilt or as to his reason for not returning, the bare fact that he had not gone back to Scotland to face the fraud charges was wholly neutral with respect to the character issue.  By taking it into account in determining that the appellant was not of good character, the Tribunal made a decision erroneous in law because it was so unreasonable that no reasonable person could have come to it.  See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.

49                  As to the second error by the learned primary judge, it is true, as his Honour said, that the Tribunal did not in express words find that the appellant’s failure to return to Scotland was fatal to his claim to the visa.  But the Tribunal attached significance of determinative importance to the appellant’s failure to return to Scotland to answer the criminal charges.  When regard is had to how the Tribunal expressed its conclusion on the character issue in par 176 of its reasons, it becomes apparent that the Tribunal is saying in par 170 that, but for the appellant’s decision not to return to Scotland, it would not have come to the conclusion it did as to his want of good character, a reading not disputed by counsel for the respondent.

50                  These errors are also sufficient to entitle the appeal to succeed.

51                  The appeal should be allowed, the orders made by the learned primary judge and the Tribunal set aside and the matter remitted to the Tribunal to be heard according to law.  While the rejection by the Tribunal of the respondent’s case was well open to it on the evidence, we think it preferable for the matter to be reheard by a Tribunal differently constituted.

Associate:

Dated:              14 September 1999