FEDERAL COURT OF AUSTRALIA

White v Minister for Immigration & Multicultural Affairs [1999] FCA 1433

MIGRATION – cancellation of visa – appeal from decision of trial judge confirming decision of Minister to cancel visa and declare appellant an excluded person under ss 501 and 502 of the Migration Act 1958 (Cth) – previous decision of Administrative Appeals Tribunal setting aside deportation order – relationship between deportation power and s 501 – cancellation based on want of good character – past criminal conduct – whether other factors can be considered in assessing good character – claim that decision of Minister induced or affected by actual bias – need for evidence – further evidence on appeal.

Migration Act 1958 (Cth) ss 501, 502

Federal Court of Australia Act 1976 (Cth) s 27

Abebe v The Commonwealth (1999) 162 ALR 1 referred to

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 referred to

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194 referred to

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 referred to

Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 110-111 referred to

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408 applied

Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCR 951 referred to

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

CDJ v VAJ (1998) 157 ALR 686 at 707 referred to

TE WHETU WHAKATAU WHITE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 43 of 1999

RYAN, NORTH & WEINBERG JJ

22 OCTOBER 1999

PERTH (HEARD VIA VIDEO IN MELBOURNE)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

THE COURT ORDERS THAT:

1.                  The appeal be adjourned to 24 November 1999 at 9.30 am Perth time by video link.

2.                  The further hearing of the appeal be confined to a consideration of the appellant’s claim of actual bias on the part of the respondent.

3.                  On or before 10 November 1999 the respondent file and serve any affidavits upon which he wishes to rely at the further hearing of the appeal.

4.                  On or before 19 November 1999 the appellant file and serve any affidavits upon which he wishes to rely in support of his claim of actual bias on the part of the respondent.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal against a judgment of French J who, on 21 May 1999, dismissed an application under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision taken by the respondent on 14 October 1998 that the appellant’s visa be cancelled pursuant to s 501 of the Act on character grounds, and also a decision taken on the same date under s 502 of the Act that the appellant be declared an excluded person. 

Background

2                     The appellant, a citizen of New Zealand, was born in 1968.  He was until recently named Leslie Edward Towers.  He then elected to change his name to Te Whetu Whakatau White, presumably to reflect his Maori descent. 

3                     The appellant came to Australia from New Zealand in 1987.  Before his arrival, he had been convicted in New Zealand of a number of relatively minor offences.  In 1988 and 1989 he was convicted in this country of common assault, damage to property, disorderly conduct, driving with a blood alcohol content in excess of .08 per cent , and driving without a licence.  Notwithstanding these convictions, he was, on 31 January 1992, granted a Special Category Visa. 

4                     On 24 June 1993 the appellant became involved in a violent altercation at the Katherine Hotel, in Katherine in the Northern Territory.  Neither the appellant nor any of his companions was the instigator of this incident, which appears to have begun when a group of Aborigines, who had been drinking heavily, subjected him to racial taunts. 

5                     After an initial skirmish, the appellant was able to break free from his attackers, and make his way back to his residence.  He obtained a weapon which was described as a “Tee-ball bat” (akin to a smaller version of a baseball bat) and then drove back, in his brother’s car, to the vicinity of the hotel.  He emerged from the car, and became embroiled once again in the fighting.  He sought to protect himself and his companions by lashing out with the bat.  He struck one person who, as it happened, was an innocent bystander, causing injury to that person.  The appellant was knocked to the ground, and assaulted with a weapon.

6                     At that stage one of his companions tried to help him leave the scene by assisting him into his brother’s car.  However, the rear window of the car was smashed, and the men inside, including the appellant, were dragged out and set upon.  He managed somehow to break free and to get back into the vehicle.  He then drove at high speed along the main street of the town, made a sharp left hand turn and, in the course of doing so, struck one of those involved in the brawl, knocking him to the ground.  He drove off again at high speed, and then made a u-turn.  The vehicle then struck the person who had previously been knocked to the ground just as that person was getting to his feet.  Somewhat remarkably, that person did not sustain any serious injuries.

7                     The appellant continued to drive at a high speed for a further 100 metres or so, made another u-turn and travelled back along the same road.  On this occasion, his vehicle veered onto the wrong side of the road, and struck another person who was thrown to the ground.  That person suffered head and soft tissue injuries which, like those of the first person struck by the appellant’s car, were only minor. 

8                     The appellant then accelerated along the main road and collided with two Aboriginal women who were standing on the side of that road.  One of these women was knocked down, and her right arm broken.  The other woman was dragged onto the bonnet and, it would seem, killed instantly.  The vehicle then struck a lightpole.  The appellant was dragged from the vehicle by a group of unidentified Aborigines, and bashed into a state of unconsciousness.  He sustained a fractured skull and a number of other serious injuries.  A blood test indicated that he had a blood alcohol content of .170 per cent. 

9                     As a result of the events of that evening, the appellant was convicted in March 1994 in the Supreme Court of the Northern Territory of one count of manslaughter and three counts of committing an aggravated dangerous act.  He was sentenced by Mildren J on the count of manslaughter to four years’ imprisonment and on each count of having committed an aggravated dangerous act to two years’ imprisonment. Each of these sentences was ordered to be served concurrently with the others.  It was also ordered that, upon his entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of three years, he be released after serving twelve months’ imprisonment.  As he had been in custody since 30 June 1993, he was released from prison on 29 June 1994. 

10                  On 24 February 1996 the appellant, then living in Western Australia, committed further offences of a serious nature.  He was driving a vehicle whilst unlicensed and with a blood alcohol content of .22 per cent when his vehicle veered onto the wrong side of the road, and was involved in a head on collision with another vehicle.  A passenger in his vehicle, and the driver and a passenger in the other vehicle, all suffered injuries.  He was sentenced in February 1997 to several terms of imprisonment, all of which were wholly suspended.  He was also fined, and disqualified from holding or obtaining a driver’s licence for a period of four years. 

The deportation proceedings

11                  On 9 January 1998 a delegate of the respondent decided that the appellant should be deported from Australia.  A principal source of the Minister’s power to deport non-citizens is to be found in s 200 of the Act.  The ground relied upon in the appellant’s case was that he was a non-citizen who had been in Australia as a permanent resident for a period of less than ten years when he committed offences for which he had been sentenced to imprisonment for a period of not less than one year – see s 201 of the Act. 

12                  The appellant appealed to the Administrative Appeals Tribunal (“the AAT”) against the deportation order.  On 21 May 1998 the AAT set aside that order, and remitted the matter with a direction that the appellant not be deported.  It is important to note that the respondent did not seek to review that decision.

Visa cancellation and excluded person declaration

13                  On 13 August 1998 an officer of the Department of Immigration and Multicultural Affairs (“the Department”) wrote to the appellant stating that the Special Category Visa granted to him on 31 January 1992 might be liable for cancellation under s 501 of the Act.  The letter stated that the Minister had indicated that he proposed to consider personally whether the visa should be cancelled pursuant to that section on character grounds.  The letter also stated that the Minister proposed to consider whether the appellant should be declared an excluded person under s 502 of the Act, thereby denying him a right of review by the AAT.  The applicant was informed that matters to be taken into account by the Minister could include the appellant’s criminal convictions including, in particular, his conviction for manslaughter.  The Minister invited the appellant’s comments on these matters, and also invited him to provide any further information which he considered relevant.

14                  On 14 October 1998 a minute was sent to the Minister by an officer of the Department formally seeking his decision on the possible cancellation of the appellant’s visa, and also seeking his decision on whether, if the visa were cancelled, the appellant would also be declared an excluded person.

15                  Accompanying the minute to the Minister was a document entitled “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA CANCELLATION UNDER S 501 OF THE MIGRATION ACT 1958” (“the issues paper”).  The Minister was advised that, in order to cancel the appellant’s visa, he must first be satisfied that the appellant was a person who was not of good character under s 501 of the Act. 

16                  Section 501, as it stood on 14 October 1998, relevantly provided as follows:

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

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

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

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

…

(2)         This 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.”

17                  Section 502 of the Act, as it stood on 14 October 1998, relevantly provided:

“502(1)  If:

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

(i)        …

(ii)               under section 501; or

(iii)             …

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.”

18                  These provisions were subsequently amended by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, assented to on 11 December 1998.  The amendments came into effect on 1 June 1999.  As it is common ground that these amendments have no application to the appellant nothing further need be said about them.

19                  Returning to the issues paper which accompanied the minute addressed to the Minister, that paper stated:

“A finding as to whether Mr Towers is not of good character appears to involve one aspect of s 501:

·           whether a number of criminal convictions make him a person not of good character on the grounds of his past criminal conduct (subsection 501(2)(a)(i)).

It you find Mr Towers is a person who is not of good character on the ground detailed above you then need to consider whether, notwithstanding that finding, there are factors that warrant not cancelling his visa.”

20                  The issues paper then set out the appellant’s criminal history, and provided advice to the Minister on the question of good character.  It referred specifically to the findings of the AAT, in the course of the earlier deportation proceedings, that the appellant was now making a positive contribution to the community by performing voluntary work for a religious organisation, that he was actively seeking employment and that he no longer consumed alcohol.  Nonetheless, it observed that it was open to the Minister to find that, having regard to his past criminal conduct, the appellant was not of good character.

21                  The issues paper then reminded the Minister that even if he was satisfied that the appellant was not of good character, it was open to him, in the exercise of his discretion, to decline to cancel his visa.  A number of matters said to be relevant to the exercise of that discretion were identified.  These included the appellant’s lengthy criminal history and his general disregard for the safety and well-being of members of the community.

22                  Finally, the issues paper turned to the possibility that the Minister might make a declaration pursuant to s 502 of the Act.  The Minister was reminded of the criteria for making such a declaration.  Among the factors identified as relevant to the exercise of his discretion was the possibility that, unless such a declaration were made, the appellant might seek review in the AAT and thereby further delay his departure from Australia. 

23                  The Minister then made the decisions which were the subject of the application for review before French J, and which have led to this appeal from his Honour’s rejection of that application.

The proceedings before the primary judge

24                  On 29 October 1998 the appellant filed his application seeking review of the decisions taken by the Minister on 14 October 1998.  That application was handwritten, and obviously prepared without the benefit of legal advice.  Subsequently, a revised, typed, version of the application was filed.  The stated grounds in both the handwritten and the typed version were that the relevant decisions had been induced or affected by fraud or by actual bias, and that there was no evidence or other material to justify the making of those decisions.  

25                  The matter came before French J for directions on 18 November 1998.  His Honour canvassed the possibility of legal assistance upon a pro bono basis being obtained for the appellant.  Such assistance was eventually procured.  This resulted in the filing of an amended application, and the addition of several grounds of review including grounds challenging the constitutional validity of s 476 of the Act in so far as that provision restricted the grounds for review of decisions categorised in the Act as “judicially-reviewable”.  These grounds were ultimately abandoned in light of the decision of the High Court in Abebe v The Commonwealth (1999) 162 ALR 1, which was delivered on 14 April 1999, several weeks before the application for review was heard. 

26                  The grounds argued on behalf of the appellant before French J turned, for the most part, upon whether the Minister had been entitled, when considering whether to cancel the appellant’s visa and to declare him an excluded person, to have regard to the likelihood that he would commit further offences in the future. 

27                  French J concluded that, when the Minister decided to cancel a person’s visa upon being satisfied that the person was “not of good character”, the reference to “the person’s past criminal conduct” in s 501(2)(a)(i) of the Act was not exhaustive of the matters relevant to that determination. 

28                  French J drew attention to two Full Court decisions dealing with the meaning of the expression “good character” in s 501 of the Act.  The first of those decisions referred to that expression as connoting “the enduring moral qualities” of a person – Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431.  The second broadly supported that conclusion – Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194.  It is worthy of note that both of these decisions have recently been cited with approval by another Full Court in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277, on 14 September 1999.  French J said that a person’s character was an enduring attribute and was formed by an accumulation of acts or omissions.  By necessary implication it involved an assessment of that person’s likely future behaviour.  His Honour stated:

“So in reaching his state of satisfaction under s 501(2)(a)(i) the Minister may form a compendious picture based upon past criminal and general conduct and the likelihood of particular future behaviours derived therefrom.  A fortiori, in exercising the discretion to refuse or cancel a visa in such a case, the Minister would have regard to the want of good character and the risk of future adverse behaviour.”

29                  French J dealt with a contention formally advanced, but not pursued, by the appellant.  The submission was that the Minister had not been empowered to cancel his visa, or to declare him an excluded person, because the AAT had earlier set aside a deportation order made against him under s 200 of the Act, and the grounds which had been relied upon in support of his deportation had been essentially the same as those said to justify the cancellation of his visa, and the exclusion order. 

30                  His Honour observed that he had previously rejected a similar submission in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 110-111.  The Full Court had subsequently taken a similar view in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408.  French J was therefore bound by the decision in Gunner to reject this submission.  He observed:

“There is nothing about the power to cancel a visa conferred by s 501 that prevents it from being exercised when the Administrative Appeals Tribunal has previously reversed a decision to deport under s 200.”

31                  Finally, his Honour dealt with a submission that the Minister had erred in taking into account, for the purposes of his decision under s 502, the fact that the appellant “may seek AAT review and further delay his departure from Australia”.  He rejected that submission.  His decision in that regard is not the subject of the appeal to this Court.  Accordingly, nothing further need be said about it.

The appeal to this Court

32                  By his original notice of appeal (which is undated) the appellant appealed to this Court from the whole of the judgment of French J given on 21 May 1999.  The grounds of appeal set out in that notice were as follows:

 “1.     The learned Judge failed to find that the Respondent in making the decision under s.501 of the Migration Act in respect of the Appellant was in error in having regard to factors other than the Appellant’s past criminal conduct.

2.                  Further, the learned Judge failed to find that the Respondent in making the decision under s.501 of the Migration Act in respect of the Appellant was in error in having regard to the likelihood of future criminal conduct by the Appellant.

3.                  The learned Judge failed to find that the Respondent was precluded from acting under ss.501 and 502 of the Migration Act in respect of the Appellant as the Appellant had previously, and in respect of the same factors, been the subject of an order under s.200 of the Migration Act which had been set aside by the Administrative Appeals Tribunal.  To this extent, the Appellant contends that the decision of this Honourable Court in Minister for Immigration and Multicultural Affairs v Gunner was wrong.”

33                  The appellant subsequently decided that he would not press ground 3 in the original notice of appeal, contending that Gunner was wrongly decided, but that he would seek leave to add further grounds which are contained in a notice dated 14 July 1999.  They are described as “grounds 3, 4 and 5”.  It is obvious that these grounds have been personally drawn by the appellant.  In substance, they are as follows:

·                    In making the orders which he did under ss 501 and 502 of the Act, the Minister, acting in his executive capacity, violated “the independence of the judiciary”.

·                    In exercising the powers which he did pursuant to ss 501 and 502 of the Act in circumstances where he had previously failed in an endeavour to have the appellant deported, the Minister violated “the principle against double jeopardy”.

·                    In exercising the powers which he did pursuant to ss 501 and 502 of the Act, the Minister had unlawfully discriminated against the appellant because he had permitted another person, similarly affected by those provisions, to be released pending review, while refusing to permit the appellant’s release pending such review.

34                  It follows that there are five grounds of appeal extant before this Court.  These are grounds 1 and 2 of the original notice of appeal, and the appellant’s supplementary grounds 3, 4 and 5.

The reasoning of the Court regarding the existing grounds of appeal

35                  We have reached the conclusion that none of these five grounds of appeal has been made out. 

36                  Grounds 1 and 2 (which complain that the respondent erred when deciding to cancel the appellant’s visa by having regard to factors other than the appellant’s past criminal conduct) were dealt with by the primary judge in a manner which we regard as wholly unexceptionable.  We therefore reject the appellant’s submissions in support of these grounds.

37                  The appellant’s contention in supplementary ground 3 that the respondent, by cancelling the appellant’s visa, has acted in a manner which violates “the independence of the judiciary” is, in our view, devoid of any merit.  The AAT does not exercise the judicial power of the Commonwealth.  It is an administrative body which has been given the power and responsibility of reviewing, on the merits, certain specified decisions made pursuant to Commonwealth enactments.  There is no impediment whatever, in any constitutional or other sense, to the respondent’s cancelling the appellant’s visa notwithstanding the AAT’s earlier decision to set aside the respondent’s deportation order – Minister for Immigration and Multicultural Affairs v Gunner (supra).

38                  The appellant’s contention in supplementary ground 4 that the Minister’s conduct violates the “principle of double jeopardy” is also without merit.  That principle is well established within the field of criminal law and procedure.  It prevents a person from being tried for a crime in respect of which he or she has already been acquitted or convicted.  It also operates as a principle of restraint in Crown appeals against sentence.  It has no application at all in circumstances such as those relied upon in the present case.

39                  The appellant’s final contention in supplementary ground 5 complains of unlawful discrimination said to arise from the respondent’s decision to deny him release from custody pending review of the decision to cancel his visa while allegedly permitting the release, pending review, of another, similarly affected by the same provisions of the Act.  This ground of appeal is untenable.  The fact that a person involved in other, unrelated, proceedings has been released from migration detention, while the appellant has been denied such release, is clearly irrelevant to any issue before this Court. 

40                  It follows that each of the grounds of appeal contained in the notice of appeal, and also in the supplementary notice, must be rejected. 

41                  Ordinarily, it would follow that the appeal would be dismissed.  There is, however, a complication in the present case which first emerged during the course of the hearing of the appeal and which must be addressed.

The actual bias contention revived

42                  It will be recalled that in his original application for review, the appellant claimed that the respondent’s decision was induced or affected by fraud or by actual bias.  The basis for that contention was that the remarks of Mildren J, when sentencing the appellant in March 1994, had not been submitted by the Department to the Minister before he exercised the powers under the relevant provisions of the Act.  Those sentencing remarks were said by the appellant to be generally favourable to his case, and to demonstrate that there were mitigating circumstances attending the commission of the offences in question.  The failure by the Department to place his Honour’s sentencing remarks before the Minister was said to be evidence of an attempt by it to induce actual bias in the Minister’s mind.

43                  Counsel who appeared for the appellant before French J did not pursue this ground of review.  That is scarcely surprising.  The fact that Mildren J’s sentencing remarks were not included in the submission to the Minister by the Department provides no basis for a finding that the Minister’s decision was, within the meaning of s 476(1)(f) of the Act, induced or affected by fraud or actual bias. 

44                  The AAT’s reasons for decision included extracts from Mildren J’s sentencing remarks.  Those reasons for decision in their entirety were before the respondent when he took the decisions which are impugned.  Moreover, the appellant was given the opportunity to place before the respondent whatever material he wished to have taken into account when the respondent made the relevant decisions.  He could scarcely complain of a failure to have the sentencing remarks taken into consideration when he did not avail himself of the opportunity afforded to him to have their full text placed before the Minister.

45                  What the appellant has sought to do on the appeal, however, is to revive his original claim of bias, but  upon a completely different basis.  He has relied in support of his revived contention upon the very recent judgment of the Full Court in Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951.  In that case, the Full Court, by majority, held that the relevant Minister (who is also the respondent in the present proceedings) had displayed actual bias in the exercise of his statutory powers under ss 501 and 502 of the Act.  The Minister’s decision to cancel the appellant’s visa and his decision to declare him an excluded person were therefore set aside. 

The Full Court finds actual bias against the Minister

46                  The decision of the Full Court in Jia Le Geng was delivered on 15 July 1999, almost two months after French J had delivered his judgment in the present case.  It concerned a Chinese national who had arrived in Australia on a student visa on 17 August 1991.  Shortly thereafter, he applied for refugee status.  That application was refused by a delegate of the Minister whose decision was upheld on review.  However, on 1 November 1993, the Minister made a statement in relation to Chinese nationals in Australia announcing special criteria for Special (Permanent) Entry Permits.  On 19 November 1993 it was determined that the applicant met threshold criteria for an application for such a permit.  He was, accordingly, released from custody. 

47                  In December 1993 the applicant was arrested and charged with various sexual offences alleged to have been committed against a woman with whom he had previously been in a relationship.  In February 1995 he was brought to trial on those charges.  He was convicted on four counts, including assault occasioning actual bodily harm, unlawful detention and sexual penetration.  He was sentenced to a total of six years and three months’ imprisonment.

48                  On 18 August 1995 a delegate of the Minister refused the applicant’s outstanding application for a Special (Permanent) Entry Permit.  On 23 July 1996 the AAT set aside that decision.  It remitted the matter to the Minister with a direction that the applicant qualified for a Transitional (Permanent) Visa.  The AAT expressly found that, notwithstanding his conviction and imprisonment, the applicant was a person of good character.  It concluded that his offences did not indicate any tendency on his part to violence, criminal conduct, or anti-social sexual behaviour.  It noted that excellent character evidence had been given on his behalf by “an impressive cast of witnesses”. 

49                  The Minister sought a review by this Court of the AAT’s decision.  On 20 December 1996, Carr J ordered that decision to be set aside and remitted the matter to the AAT for further consideration.  The basis of his Honour’s decision was that, in certain respects, the Minister had been denied procedural fairness. 

50                  On 14 March 1997, on the remittal, the AAT arrived at the same conclusions as it had previously done.  It again set aside the decision under review and remitted the matter to the Minister with a direction that the applicant qualified for a Transitional (Permanent) Visa, and an express finding that he was of good character.

51                  On 14 April 1997, officers of the Department prepared a background brief for the assistance of the Minister.

52                  The judgment of Spender J in Jia Le Geng refers to the Minister’s state of mind at the time of the preparation of the background brief, and states at par 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”.”

53                  Spender J then set out in par 25 of his reasons various extracts from an interview on Radio 2GB on 14 April 1997 between the Minister and a Clive Robertson.  In the course of that interview the Minister made a series of statements expressing his dissatisfaction with the way in which the AAT had dealt with a number of matters involving criminal deportation.  One statement attributed to the Minister was in response to a question asked of him as to what constituted a person of good character.  The Minister had replied:

“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]

54                  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]

55                  On 15 April 1997 a “protective” appeal against the decision of the AAT of 14 March 1997 was lodged by the Minister with the Federal Court. 

56                  On 23 April 1997, the Department sent a minute to the Minister setting out options for action following the AAT decision concerning Mr Jia.  One option which was canvassed was to grant the visa, but then to intervene and cancel it personally under s 501 of the Act on the basis that Mr Jia was not of good character.

57                  Spender J then referred in par 30 of his reasons to a letter which had been sent to Mathews J, then President of the AAT, by the Minister on 30 April 1997.  Spender J stated:

“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 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 (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.””

58                  On 27 May 1997 the Minister discontinued the appeal to the Federal Court which had been lodged on 15 April 1997.  The Department subsequently, on 6 June 1997, sent a minute to the Minister inviting him, if satisfied that Mr Jia was not of good character, to exercise the discretion under s 501 to cancel his permanent visa, and then to exercise the discretion under s 502 declare him to be an excluded person.

59                  The Minister’s decision, dated 10 June 1997, was endorsed on an attachment to the minute.  The Minister decided that Mr Jia was not of good character, that his visa should be cancelled, and that he should be declared an excluded person.

60                  The appeal to the Full Court in Jia Le Geng raised, as a central question, whether the decision of the Minister that Mr Jia was not of good character, resulting in the exercise of the discretion to cancel his visa, was a decision made by the Minister that was induced or affected by actual bias. 

61                  Spender J stated at par 40:

“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.”

62                  His Honour continued at par 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.”

63                  Spender J concluded that, in the particular circumstances before the Court, the evidence suggested that the Minister had not expressed a view that was provisional or qualified but rather a view that Mr Jia was a person of bad character because any person with a recent conviction for a serious crime could not be a person of good character.  His Honour referred, in particular, to the Minister’s statements in the radio interview of 14 April 1997, and in the letter of 30 April 1997, and observed that these were not expressions of a preliminary view, capable of alteration, nor the statement of a general rule, subject to exception in the particular circumstances of a case.

64                  Spender J continued (at pars 49-50):

“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.

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.”

65                  His Honour continued (at par 52):

“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.”

66                  His Honour was particularly critical of the Minister’s conduct in writing to the President of the AAT in relation to the decision in the Jia case.  He concluded that the Minister had sought improperly to pressure the AAT into accepting his view, a view which was, in any event, fundamentally mistaken.  The Minister’s decision to cancel Mr Jia’s visa and his decision to declare him an excluded person were affected by actual bias and should be quashed. 

67                  RD Nicholson J agreed with the judgment of Spender J.  His Honour’s reasons contain a particularly thorough and helpful analysis of the relevant principles governing findings of actual bias.  He referred extensively to the decision of the Full Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 122 per Wilcox J, at 126 per Burchett J and at 134 per North J. 

68                  RD Nicholson J observed at par 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.”

69                  Having then set out the various statements which the evidence disclosed had been made by the Minister, his Honour concluded at par 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.”

70                  Cooper J dissented.  His Honour was not persuaded that the statements attributed to the Minister demonstrated that he was unwilling or unable to be dissuaded from the conclusion which he had reached concerning the effect upon character of a conviction for a serious offence which had led to imprisonment.  He concluded that it had been open to French J, as the primary judge, 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 when he exercised his statutory powers under ss 501 and 502 of the Act on 10 June 1997.

71                  The judgment of the Full Court in Jia Le Geng is the subject of an application for special leave to appeal to the High Court.  That application will not, however, as we understand the position, be heard in the immediate future. 

The disposition of the present appeal

72                  The difficulty which presents itself in the present case is that there is a judgment of a Full Court of this Court, delivered as recently as 15 July 1999, in which that Full Court, by majority, held that the very Minister who is the respondent to the present proceedings had displayed actual bias in a decision taken by him on 10 June 1997 in relation to the same sections of the same Act as are the subject of this appeal.  Findings of actual bias are rarely made.  If actual bias vitiated the Minister’s decisions taken in Jia Le Geng on 10 June 1997, might it also vitiate the Minister’s decisions taken in the present case on 14 October 1998?

73                  The allegation of actual bias raised by the appellant in his original application for review was effectively abandoned before French J once the appellant was provided with pro bono legal assistance.  That was understandable, given the spurious basis upon which that allegation had originally been formulated. 

74                  The argument now sought to be advanced by the appellant on the appeal to this Court is based entirely upon the decision of the Full Court in Jia Le Geng, and, in particular, the actual bias imputed to the Minister by that Full Court.  It is a very different argument from that which was abandoned before French J.

75                  Counsel for the respondent submitted, in reply, that merely because the Minister had displayed actual bias in the manner in which he approached ss 501 and 502 of the Act on 10 June 1997 did not entail the conclusion that he had also been guilty of actual bias when he considered the appellant’s position on 14 October 1998.

76                  That submission may well be correct, as a matter of logic.  There are, however, several countervailing considerations.  There is nothing to suggest that the Minister would have understood, at any time before the Full Court published its reasons in Jia Le Geng on 15 July 1999, that his approach to ss 501 and 502 of the Act was erroneous.  There is no reason to believe that he would not have approached those provisions in exactly the same erroneous manner when, on 15 October 1998, he decided to cancel the appellant’s visa, and to declare him an excluded person.

77                  The judgment in Jia Le Geng at first instance was delivered on 1 July 1998.  The judge at first instance in that case (who, coincidentally, was French J) rejected the contention that the Minister had displayed actual bias when he determined that the application for review should be dismissed.  The decision of French J would, in all likelihood, have fortified the Minister in his belief that he had acted correctly in cancelling Mr Jia’s visa, and in declaring him an excluded person.

78                  As at November 1998, when the appeal to the Full Court in Jia Le Geng was argued, the Minister continued to maintain that he had not erred in cancelling Mr Jia’s visa, and in declaring him an excluded person.  That hardly suggests that the Minister had changed his views between June 1997 and October 1998.

79                  Counsel for the respondent quite properly drew attention to the fact that in Jia Le Geng there had been a body of evidence placed before the Court, both at first instance and on appeal, in support of the contention that the Minister had displayed actual bias in arriving at the relevant decisions.  Indeed, in Jia Le Geng there were agreed facts which facilitated the resolution of the question whether there had been such bias. 

80                  It is true that the appellant in the present case has adduced no evidence to support his contention that the Minister approached the exercise of his discretion under ss 501 and 502 of the Act in his case in a biased manner.  The appellant is, however, unrepresented.  Not surprisingly, he displays little understanding of the relevant principles concerning actual bias, or of their proper application. 

81                  We would regard it as inappropriate to dispose of this appeal without affording the appellant the opportunity, which we understand he seeks, to adduce further evidence.  The reception of further evidence is provided for in s 27 of the Federal Court of Australia Act 1976 (Cth) – see generally CDJ v VAJ (1998) 157 ALR 686 at 707 per McHugh, Gummow and Callinan JJ.  We assume that the respondent, acting as a “model litigant”, will make the concession that the statements attributed to him in the judgment of Spender J in Jia Le Geng were, in fact, made, unless there is some proper basis for challenging any such finding.  Similarly, we assume that the respondent will also concede, as he did for the purposes of the proceedings in Jia Le Geng, that the opinions which he held on 14 April 1997 were as set out in those agreed facts.

82                  It is appropriate, in our view, in the unusual circumstances of this case, where the appellant relies entirely upon findings of fact made by the Full Court in Jia Le Geng, that the respondent file and serve any affidavits upon which he wishes to rely before the appellant is required to file additional material in support of his claim.

83                  In due course the Court will make orders which reflect these reasons for judgment, and any necessary orders that arise out of the further hearing of the appeal.

Associate:

Dated:              22 October 1999