FEDERAL COURT OF AUSTRALIA

Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318

MIGRATION – visa – refusal to grant – character test – review by Administrative Appeals Tribunal – expedited timetable – provisions for production of documents – powers of tribunal to receive documents in evidence – documents tendered on behalf of minister – not produced pursuant to particular statutory provisions – whether tribunal entitled to receive documents – failure of minister to make available witnesses for cross-examination – whether denial of natural justice – tribunal took into account breach of conditions in two previous visas – applicant contended that prior visas granted unlawfully – whether tribunal failed to take into account a relevant consideration – whether tribunal based its decision on unsubstantiated allegations of criminal conduct – whether tribunal applied wrong standard of proof – whether tribunal’s decision so unreasonable that no reasonable decision-maker would have made it – whether tribunal denied applicant natural justice by finding against him on basis different from that put by minister

Migration Act 1958 (Cth) ss 75, 500, 501(1), 501(6), 501G

Migration Regulations 1994 (Cth) regs 2.24, 2.51, 2.54, 5.03

Administrative Appeals Tribunal Act 1975 (Cth) ss 28, 29, 33, 37, 40, 44

Migration Reform (Transitional Provisions) Regulations 1994 (Cth)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth)

Goodwin v Phillips (1908) 7 CLR 1 cited

Rose v Hvric (1963) 108 CLR 353 cited

Butler v Attorney-General (Vic) (1961) 106 CLR 268 cited

South Australia v Tanner (1989) 166 CLR 161 cited

Saraswati v R (1991) 172 CLR 1 cited

Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 cited

Re Morris; Morris v Maroudas (1986) 66 ALR 699 referred to

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

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

(1999) 56 ALD 321 considered

BRIAN GERALD JAMES GOLDIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 244 of 2000

GRAY, RD NICHOLSON AND STONE JJ

19 SEPTEMBER 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 244 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BRIAN GERALD JAMES GOLDIE APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY, RD NICHOLSON AND STONE JJ
DATE OF ORDER:	19 SEPTEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 244 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BRIAN GERALD JAMES GOLDIE

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	GRAY, RD NICHOLSON AND STONE JJ
DATE:	19 SEPTEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

GRAY J:

1 This appeal raises important issues as to the manner in which an application to review a decision rejecting an application for a visa, applying the “character test”, is required to be dealt with.

2 The appellant is a citizen of the United Kingdom, who was born on 3 October 1967. On 24 March 2000, while in Australia, he applied to the Department of Immigration and Multicultural Affairs for a visa of the kind known as a bridging visa E. On 28 March 2000, a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) decided to refuse the grant of a visa, applying s 501(1) of the Migration Act 1958 (Cth) (“the Migration Act”). On the following day, the appellant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of that decision. On 12 June 2000, the Tribunal affirmed the decision of the delegate of the Minister. On 20 June 2000, the appellant filed an application by way of appeal on a question of law in the Western Australia District Registry of this Court. The application was heard by a single judge of this Court, who dismissed it on 22 December 2000. The appellant appealed to this Full Court.

3 Section 501(1) of the Migration Act provides:

“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

The phrase “character test” is defined in s 501(6) as follows:

“For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection
(7)); or

(b)       the person has or has had an association with someone else, or with a
            group or organisation, whom the Minister reasonably suspects has
            been or is involved in criminal conduct; or

(i) the person’s past and present criminal conduct;

(ii) the person’s past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia,
there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia;
or

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

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

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

Otherwise, the person passes the character test.”

The subsequent subsections of s 501 contain further provisions relevant to this definition, but it is unnecessary for present purposes to set out those provisions.

4 The effect of s 75 of the Migration Act and reg 2.24 of the Migration Regulations in the case of the appellant was that the delegate of the Minister was required to make the decision to refuse the appellant a visa within two working days after his application.

5 The manner in which notice of a decision pursuant to s 501 is to be given is dealt with in s 501G of the Migration Act. So far as relevant to the present case, that section provides as follows:

“(1) If a decision is made under subsection 501(1) … to:

(a) refuse to grant a visa to a person; or

…

the Minister must give the person a written notice that:

(d) specifies the provision under which the decision was made
and sets out the effect of that provision; and

(e) sets out the reasons (other than non-disclosable information)
for the decision; and

            (f)        if the decision was made by a delegate of the Minister under
                        subsection 501(1) … and the person has a right to have the
                        decision reviewed by the Administrative Appeals Tribunal:

(i) states that the decision can be reviewed by the
Tribunal; and

(ii) states the time in which the application for review may
be made; and

(iii) states who can apply to have the decision reviewed; and

(iv) states where the application for review can be made;
and

                        (v)        in a case where the decision relates to a person in the
                                    migration zone - sets out the effect of subsections
                                    500(6A) to (6L) (inclusive); and

(vi) sets out such additional information (if any) as is
prescribed.

(2) If the decision referred to in subsection (1):

(a) was made by a delegate of the Minister under subsection
501(1) … and

(b) is reviewable by the Administrative Appeals Tribunal; and

the notice under subsection (1) that relates to the decision must be
accompanied by 2 copies of every document, or part of a document,
that:

(d) is in the delegate’s possession or under the delegate’s control;
and

(e) was relevant to the making of the decision; and

(f) does not contain non-disclosable information.

(3) A notice under subsection (1) must be given in the prescribed manner.

(4) A failure to comply with this section in relation to a decision does not
affect the validity of the decision.”

The prescribed manner of giving notice for the purposes of s 501G(1) is found in reg 2.54 of the Migration Regulations. The time of receipt of the document is to be calculated according to reg 5.03.

6 The entitlement of the appellant to seek review of the delegate’s decision by the Tribunal is to be found in s 500 of the Migration Act. Subsection (5) of that section requires that the Tribunal be constituted by a presidential member alone. The section also contains the following subsections, which require departures from the procedures normally applicable in the Tribunal:

“(6A)   If a decision under section 501 of this Act relates to a person in the
            migration zone, section 28 of the Administrative Appeals Tribunal Act
            1975 does not apply to the decision.

(6B)     If a decision under section 501 of this Act relates to a person in the
            migration zone, an application to the Tribunal for a review of the
            decision must be lodged with the Tribunal within 9 days after the day
            on which the person was notified of the decision in accordance with
            subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections
            29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act
            1975 do not apply to the application.

(6C)     If a decision under section 501 relates to a person in the migration
            zone, an application to the Tribunal for a review of the decision must
            be accompanied by, or by a copy of:

(a) the document notifying the person of the decision in
accordance with subsection 501G(1); and

            (b)        one of the sets of documents given to the person under
                        subsection 501G(2) at the time of the notification of the
                        decision.

(6D) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

section 37 of the Administrative Appeals Tribunal Act 1975 does not

apply in relation to the decision.

(6E) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

            the Registrar, a District Registrar or a Deputy Registrar of the
            Tribunal must notify the Minister, within the period and in the manner
            specified in the regulations, that the application has been made.
            Accordingly, subsection 29(11) of the Administrative Appeals Tribunal
            Act 1975 does not apply in relation to the application.

(6F) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

then:

            (c)        the Minister must lodge with the Tribunal, within 14 days
                        after the day on which the Minister was notified that the
                        application had been made, 2 copies of every document, or
                        part of a document, that:

(i) is in the Minister’s possession or under the Minister’s
control; and

(ii) was relevant to the making of the decision; and

(iii) contains non-disclosable information; and

            (d)        the Tribunal may have regard to that non-disclosable
                        information for the purpose of reviewing the decision, but must
                        not disclose that non-disclosable information to the person
                        making the application.

(6G) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not:

(d) make a decision under section 43 of the Administrative
Appeals Tribunal Act 1975;

            in relation to the decision under review until at least 14 days after the
            day on which the Minister was notified that the application had been
            made.

(6H) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501; and

(b) the decision relates to a person in the migration zone;

            the Tribunal must not have regard to any information presented orally
            in support of the person’s case unless the information was set out in a
            written statement given to the Minister at least 2 business days before
            the Tribunal holds a hearing (other than a directions hearing) in
            relation to the decision under review.

(6J) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501; and

(b) the decision relates to a person in the migration zone;

            the Tribunal must not have regard to any document submitted in
            support of the person’s case unless a copy of the document was given
            to the Minister at least 2 business days before the Tribunal holds a
            hearing (other than a directions hearing) in relation to the decision
            under review. However, this does not apply to documents given to the
            person or Tribunal under subsection 501G(2) or subsection (6F) of
            this section.

(6K) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone; and

            (c)        the Tribunal is of the opinion that particular documents, or
                        documents included in a particular class of documents, may
                        be relevant in relation to the decision under review;

then:

            (d)        the Tribunal may cause to be served on the Minister a notice
                        in writing stating that the Tribunal is of that opinion and
                        requiring the Minister to lodge with the Tribunal, within a time
                        specified in the notice, 2 copies of each of those documents that
                        is in the Minister’s possession or under the Minister’s control;
                        and

(e) the Minister must comply with any such notice.

(6L) If:

(a) an application is made to the Tribunal for a review of a
decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone; and

(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

…

(8) In this section:

business day means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(d) a public holiday in the place concerned.”

7 Section 28 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) imposes an obligation on a decision-maker, on request, to furnish a statement in writing setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for a decision in respect of which an application may be made to the Tribunal for a review. Section 28 is excluded in the case of an application under s 500 of the Migration Act by s 500(6A). Section 29 of the AAT Act provides for the manner in which an application for review of a decision is made to the Tribunal. Section 29(1)(d) makes provision for a prescribed time within which an application is to be lodged. Section 29(7), (8), (9) and (10) provide for an extension of that time. These provisions are excluded in respect of an application pursuant to s 500 of the Migration Act by s 500(6B), which imposes a time limit of nine days after notification of the decision. Section 37 of the AAT Act concerns the lodging of documents with the Tribunal. Among its provisions are the following:

“(1)     Subject to this section, a person who has made a decision that is
            the subject of an application for a review by the Tribunal must, within
            28 days after receiving notice of the application (or within such further
            period as the Tribunal allows), lodge with the Tribunal 2 copies of:

            (a)        a statement setting out the findings on material questions of
                        fact, referring to the evidence or other material on which those
                        findings were based and giving the reasons for the decision;
                        and

            (b)        every other document or part of a document that is in the
                        person’s possession or under the person’s control and is
                        considered by the person to be relevant to the review of the
                        decision by the Tribunal.

…

(2)       Where the Tribunal is of the opinion that particular other documents
            or that other documents included in a particular class of documents
            may be relevant to the review of the decision by the Tribunal, the
            Tribunal may cause to be served on the person a notice in writing
            stating that the Tribunal is of that opinion and requiring the person to
            lodge with the Tribunal, within a time specified in the notice, the
            prescribed number of copies of each of those other documents that is
            in his or her possession or under his or her control, and a person on
            whom such a notice is served shall comply with the notice.”

8 Section 37 is excluded in the case of applications pursuant to s 500 of the Migration Act by s 500(6D). For the purposes of such an application, the provision of documents by the decision-maker is governed first by s 501G(2) in relation to relevant documents not containing non-disclosable information, and second by s 500(6F) in relation to documents containing non-disclosable information. Section 29(11) of the AAT Act is also excluded by s 500(6E) of the Migration Act, which substitutes for it a requirement for notification to the Minister that an application has been made to the Tribunal within the period and the manner specified in the regulations. The relevant regulation is reg 2.51 of the Migration Regulations; the notice must be received by the Secretary to the Department of Immigration and Multicultural Affairs within seven working days after the application has been made to the Tribunal.

9 The purpose of making the changes to normal Tribunal procedures in the case of applications under s 500 of the Migration Act is to expedite the determination of those applications. Under the provisions of s 500, statutory time limits are shorter than those in the AAT Act and some time limits left by the AAT Act to the discretion of the Tribunal are fixed by s 500. Of particular importance is the effective overall time limit fixed by s 500(6L). By this provision, the Tribunal is required to have made its decision within twelve weeks after the day on which the person affected by the delegate’s decision was notified of it. In the absence of a decision within that time, the Tribunal is taken to have affirmed the decision under review.

10 The appellant has a considerable history of applications pursuant to the Migration Act. It is unnecessary to canvass that history except in one respect. On 17 May 1993, the appellant made an application to remain permanently in Australia. The effect of the Migration Reform (Transitional Provisions) Regulations, which came into operation on 1 September 1994, was that the application to remain permanently in Australia became an application for a Transitional (Permanent) visa. On 20 May 1997, a delegate of the Minister refused the application for a Transitional (Permanent) visa, on the ground that the appellant did not satisfy the character test under s 501 of the Migration Act. The appellant applied to the Tribunal for review of that decision. At the time, the appellant was in Queensland. His application was dealt with in the Queensland Registry of the Tribunal. On 18 February 1998, the Tribunal affirmed the decision to refuse the visa. The appellant then appealed to the Federal Court of Australia. On 31 March 1999, the Court dismissed his appeal. The appellant further appealed to a Full Court. That appeal was allowed on 14 September 1999. The Full Court ordered that the Tribunal’s decision of 18 February 1998 be set aside and the matter be remitted to the Tribunal for further consideration. The matter was re-heard by the Tribunal on 18 December 1999. The Tribunal again affirmed the decision to refuse the applicant a Transitional (Permanent) visa.

11 The proceeding concerning the appellant’s application for a Transitional (Permanent) visa began in the Tribunal prior to the coming into operation of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth), which commenced on 1 June 1999. It was that Act which added subss (6A) to (6L) of s 500 of the Migration Act and also inserted s 501G of the Migration Act. Accordingly, the Tribunal was obliged to conduct that proceeding in accordance with the provisions of the AAT Act. It received pursuant to s 37 of the AAT Act a number of documents considered by the person who made the decision under review to be relevant to the review of the decision by the Tribunal. These documents were referred to for convenience in the present case as “the s 37 documents”.

12 When the matter was before the Tribunal for the second time, in December 1999, the representative of the Minister prepared for use in the hearing a statement of facts and contentions on behalf of the Minister. As its title suggests, this document contained allegations about the appellant’s history of making applications for visas, his relationships with various people and his alleged criminal activities. These included allegations that he had misappropriated the proceeds of cheques that he had been authorised to sign on behalf of his employer, Fluor Daniel Pty Ltd, in the total sum of $417,515.30. The statement contained what was represented to be an account of events and proceedings to which this alleged misappropriation had given rise, including the entry in the Supreme Court of Western Australia of summary judgment for the total sum allegedly misappropriated. The statement contained contentions as to the conclusions that ought to be drawn on whether the appellant satisfied the character test.

13 When the appellant made his application for a bridging visa E on 24 March 2000, the delegate of the Minister had only two days in which to make a decision. Perhaps because of the short time, the delegate did not have before her copies of the s 37 documents lodged in the Tribunal in Queensland in respect of the proceeding in which the Tribunal was dealing with the appellant’s application for a Transitional (Permanent) visa. Instead, the delegate received a copy of the statement of facts and contentions prepared for use in the Tribunal in that case. The delegate relied on the material in that statement of facts and contentions in making her decision to reject the appellant’s application for a bridging visa E. (In its reasons for decision dated 12 June 2000, the Tribunal described the delegate as having received “faxed copies” of the statement of facts and contentions. In fact, the document must have been transmitted electronically. The decision record of the delegate, setting out the reasons for her decision, records that the statement of facts and contentions is reproduced in the decision record. In fact, the decision record appears to have been incorporated into the statement of facts and contentions. The document bears on every page a footer containing the name, address, telephone number, facsimile number, document exchange number and reference name of the Australian Government Solicitor as “Solicitor for the Respondent”. There is an apparent difference in typeface between the statement of facts and contentions and the other material inserted by the delegate.)

14 Having made her decision on 28 March 2000, the delegate signed a letter to the appellant, bearing that date, attaching her record of decision, incorporating the statement of facts and contentions. This material was served on the appellant in accordance with reg 2.54 of the Migration Regulations. The delegate thereby satisfied the requirements of s 501G of the Migration Act by giving written notice of her decision in the required form, with the required information, and by providing copies of every document or part of a document in the delegate’s possession or under her control and relevant to the making of the decision.

15 Within the nine day period specified in s 500(6B) of the Migration Act, the appellant lodged his application to the Tribunal to review the delegate’s decision. In accordance with s 500(6C), he accompanied his application by a copy of the document notifying him of the decision and one of the sets of documents given to him at the time of the notification. He did this on Friday 31 March 2001.

16 The registrar, a district registrar or a deputy registrar of the Tribunal then became obliged by s 500(6E) of the Migration Act and reg 2.51 of the Migration Regulations to notify the Minister of the application within seven working days after the application was made. That period expired on Monday 10 April 2000. There is no finding in the reasons of the Tribunal to the effect that this requirement was carried out, but a directions hearing was held by telephone on 13 April 2000. In the course of that hearing, the appellant requested copies of the s 37 documents and all other documents filed in the Tribunal proceeding in Queensland with respect to the application for a Transitional (Permanent) visa. The Tribunal directed that the s 37 documents from that other Tribunal proceeding be filed in the instant Tribunal proceeding, but made no directions about exhibits or other documents filed in the other Tribunal proceeding. The Minister caused service of the s 37 documents to be effected on the appellant on 10 May 2000. The appellant claimed to have received them on 17 May 2000. The Tribunal began its hearing of the application for review of the decision to refuse the appellant’s application for a bridging visa E on 24 May 2000. Counsel for the Minister tendered in evidence before the Tribunal the s 37 documents from the Queensland proceeding.

17 In the course of its reasons for decision, the Tribunal said:

“At the hearing, the applicant objected to those documents being accepted in evidence by the Tribunal relying on s.500(6K) which he said required the respondent to give 14 days notice in writing or alternatively, that the documents should be excluded on the grounds of natural justice/procedural fairness.

I ruled that s.500(6K) had no application as it dealt with the filing of confidential documents, which these were not. I also ruled against the applicant’s submission that it would result in procedural unfairness. I so ruled because the applicant had already been served with the section 37 documents in Q1999/1070 and Q1997/621 prior to the hearing on 18 December 1999. Even though he was not personally served (because he was living illegally in the community as an unlawful non-citizen under a false name), his lawyer had been served on his behalf. Furthermore, the great bulk of the documents related to the Fluor Daniels wrongful conversion action in the Supreme Court which had been served upon him as part of those proceedings. In evidence the applicant agreed that none of the allegations in the section 37 documents took him by surprise. He claims, however, that he was prevented by s.500(6H) from giving oral evidence on his own behalf because he has not filed a written statement 2 days before the hearing. On this point Mr Macliver for the respondent, said he would consent to an adjournment for a few days to enable the applicant to reduce his submissions and proposed evidence into writing for filing at least 2 days before a resumed hearing to give him a fair chance to put his case in accordance with the legislation. The applicant decided not to take advantage of this offer but instead chose to proceed to give evidence and make submissions within the constraints imposed by the legislation.

I allowed the proceedings to proceed upon this basis party (sic) because that was the applicant’s free choice and partly because I am of the opinion that the copy of the allegations made in the Q1999/1070 Statement of Facts and Contentions which had been served fairly raised all the allegations which the respondent intended to establish in evidence and rely upon at this hearing. The allegations were cross-referenced to the folios in the section 37 documents, which contained the supporting documentary evidence. In my opinion, the applicant had ample opportunity to file a written statement rebutting any of those allegations if he so desired. In particular, he could have given written evidence explaining how the false Fluor Daniel cheques listed above ended up in his own bank accounts and were drawn upon for his benefit.”

18 In his appeal to the Court from the decision of the Tribunal, the appellant raised the ground of improper exercise of a power. He contended that the Tribunal exercised a power to admit documents into evidence that was not authorised by the Migration Act, the Migration Regulations or any other Act of Parliament. He raised the contention that the Tribunal was wrong in holding that s 500(6K) of the Migration Act had no application as it dealt with the filing of confidential documents. He contended that s 500(6K):

“has no such application, but gives the Tribunal a power to issue a notice to the respondent to produce documents in a prescribed period that the Tribunal contends is relevant. The Tribunal issued no such notice and therefore could not admit the documents in question.”

19 The learned judge who decided the appeal at first instance dealt with this point very briefly. At [17] of his judgment, his Honour said:

“This ground appears to rest on the premise that s 500 of the Migration Act establishes a code limiting the bases upon which and ways in which documents relevant to the case may be considered by the Tribunal. The section provides for certain documents to be lodged with the Tribunal and prevents reliance by an applicant on documents submitted in support of the applicant’s case unless prior notice of the documents has been given. The Tribunal is also empowered to require the Minister to provide relevant documents. These provisions do not exhaust the powers of the Tribunal in proceedings to which s 500 applies. In particular, the power of the Tribunal to inform itself in such manner as it thinks appropriate remains intact (s 33(1)(c) Administrative Appeals Tribunal Act 1975). The Tribunal was entitled to admit into evidence the s 37 documents from the Queensland Administrative Appeals Tribunal proceedings.”

20 The appeal to this Court was conducted on the footing that the Tribunal had not given a notice, or fixed a period for compliance with a notice, pursuant to s 500(6K) of the Migration Act. On that assumption, the appellant’s contention that the provisions of subss (6A) to (6L) of s 500 of the Migration Act constitute a code governing the manner in which the Tribunal is to conduct a review of a decision to reject an application for a visa on the ground that the character test is not satisfied is raised squarely.

21 Section 33(1) of the AAT Act provides as follows:

“(1) In a proceeding before the Tribunal:

            (a)        the procedure of the Tribunal is, subject to this Act and
                        the regulations and to any other enactment, within the
                        discretion of the Tribunal;

            (b)        the proceeding shall be conducted with as little formality and
                        technicality, and with as much expedition, as the requirements
                        of this Act and of every other relevant enactment and a proper
                        consideration of the matters before the Tribunal permit; and

            (c)        the Tribunal is not bound by the rules of evidence but may
                        inform itself on any matter in such manner as it thinks
                        appropriate.”

22 As I have already pointed out, a number of the subsections of s 500 of the Migration Act expressly exclude specified provisions of the AAT Act in the case of applications to the Tribunal under s 500. Section 33 is not one of the provisions excluded specifically.

23 Much of the argument on the appeal was devoted to the question whether subss (6A) to (6L) of s 500 of the Migration Act could properly be regarded as a “code”. In the context of this argument, I take the expression “code” to mean a set of provisions, complete in itself, indicating an intention that other provisions have no application to the subject matter. In my view, this is a false issue. It is unnecessary to determine whether s 500 of the Migration Act is intended to be the sole source of jurisdictional and procedural laws with respect to the applications for review referred to in it. If it were necessary so to determine, the answer would probably be that s 500 does not contain a code in the sense to which I have referred. A number of provisions of the AAT Act not mentioned specifically in s 500 of the Migration Act are readily applicable to proceedings of that kind. Instances are s 32 (a party to a proceeding may appear in person or may be represented by some other person), s 35 (the hearing is to be in public unless, on specified grounds, the Tribunal otherwise orders) and s 40 (powers of the Tribunal, including taking evidence on oath or affirmation and adjourning a proceeding from time to time). Section 500(6G) and (6L) make it clear that s 43 of the AAT Act remains applicable. Under s 43, the Tribunal may exercise all the powers and discretions conferred on the person who made the decision under review and is required to make a decision in writing affirming, varying or setting aside the decision under review and to give reasons either orally or in writing for its decision. To say that s 500 does not constitute a code, however, is not to exclude the possibility that there are provisions of the AAT Act, not specifically mentioned in s 500 of the Migration Act, but inconsistent with the scheme laid down in respect of proceedings under s 500, so that they are inapplicable to the conduct of applications to review under that section. The real question is whether the Tribunal was entitled to receive in evidence documents not produced in accordance with any of the provisions of s 500 of the Migration Act. This question arises whether or not the source of the Tribunal’s power to receive documents in an ordinary case is s 33(1)(c) of the AAT Act or some other provision, or is derived by inference from the nature of the Tribunal’s functions. It is to be decided according to the principles relating to the effects of a later enactment in relation to inconsistent provisions in an earlier enactment, when there has been no express repeal of the earlier enactment. Those principles are expounded in cases such as: Goodwin v Phillips (1908) 7 CLR 1 at 7 per Griffith CJ and 10 per Barton J; Rose v Hvric (1963) 108 CLR 353 at 360; Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275 – 276 per Fullagar J; South Australia v Tanner (1989) 166 CLR 161 at 171 per Wilson, Dawson, Toohey and Gaudron JJ; Saraswati v R (1991) 172 CLR 1 at 17 – 18 per Gaudron J; and Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 at 655 – 656 per Ormiston JA and 672 – 673 per Phillips JA.

24 Section 500 of the Migration Act contains provisions relating to four categories of documents. First, there are the documents required to be supplied by the Minister with the notification of the original decision, pursuant to s 501G(2). It should be noted that (leaving aside documents containing non-disclosable information) this category of documents is potentially broader than the equivalent category normally required by s 37(1)(b) of the AAT Act; the documents required to be provided by s 501G(2) are all those relevant to the making of the decision, whereas s 37(1)(b) requires only those documents considered by the decision-maker to be relevant to the review of the decision by the Tribunal. Documents provided pursuant to s 501G(2) are the documents that s 500(6C) requires to be forwarded to the Tribunal by the applicant for review of the decision, together with the application. The second category of documents is that dealt with by subs (6F), namely documents in the Minister’s possession or under the Minister’s control, relevant to the making of the decision and containing non-disclosable information. The term “non-disclosable information” is defined in s 5(1) of the Migration Act; it covers matters of national interest, the public interest and confidentiality. This category of documents must be lodged with the Tribunal within fourteen days after the Minister is notified of the application. Third, there is a category of documents to be relied on by the applicant for review at the hearing, which subs (6J) requires to be given to the Minister at least two business days before the hearing. The fourth category of documents is those required by the Tribunal by notice to the Minister under subs (6K). The Minister is obliged to lodge those documents with the Tribunal within the time specified in the notice. In the present case, the Tribunal characterised subs (6K) as relating to “the filing of confidential documents”. Plainly, this was an error. Subsection (6K) is intended to permit the Tribunal to have access to documents that were not available to the original decision-maker, or if so available were considered by the original decision-maker not to be relevant to the decision, and are not available to the applicant for review, but are in the possession or under the control of the Minister. It may be that a notice pursuant to subs (6K) will operate as a process analogous to discovery of documents in a court proceeding, ie the notice will be given as a result of a request by the applicant for review, who becomes aware that the Minister has relevant documents. The subsection is not limited by its terms to such a situation. No doubt it will usually be the case that the Tribunal will seek to maximise the opportunity that an applicant for review has to make use of, or to refute, information contained in documents the subject of a notice under subs (6K). Again, however, there is no requirement apparent in subs (6K) that the notice be given, and the period specified in it be fixed, so as to give the applicant for review such an opportunity.

25 The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).

26 It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to that case. It may be that the Minister’s response will be to rely on documents that have been in the Minister’s possession or under the Minister’s control but have not been produced previously, because they were not in the possession or under the control of the delegate who made the original decision, or were not considered relevant to the decision (s 501G(2)), do not contain non-disclosable information (s 500(6F)) or have not been the subject of a notice pursuant to subs (6K). It may be that, after receiving a statement under subs (6H) or copy documents under subs (6J), the Minister acquires documents not previously in the Minister’s possession or under the Minister’s control, for the purpose of using them to answer the case of the applicant for review. The Minister may wish to obtain documents by compulsion with a view to tendering them at the hearing in answer to the case of the applicant for review. In doing so, the powers of the Tribunal found in s 40(1A) to (1E) of the AAT Act may be important. They are powers that enable the Tribunal to compel production of documents in the manner in which a court compels production of documents by the use of a subpoena.

27 To deny the Minister capacity to rely on documents not previously made available to an applicant for review would be to constrain the capacity of the Minister to answer the case of an applicant for review. It would be at odds with the scheme for dealing with applications to review decisions applying the character test, laid down by s 500 of the Migration Act. It would deprive subss (6H) and (6J) of any useful purpose. Advance knowledge of the applicant’s case is of no value if the Minister cannot meet it.

28 It is difficult to detect in s 500 of the Migration Act the source of any supposed limit on the entitlement of the Minister to rely on documents at a hearing before the Tribunal. Such a limit is not found in s 500(6K). That subsection operates only when the Tribunal takes the step of causing a notice to be served on the Minister. That step can only be taken if the Tribunal forms the opinion required by the subsection, that particular documents, or a particular class of documents, may be relevant in relation to the decision under review. Unless the possible existence of such documents, or class of documents, is brought to the attention of the Tribunal by the applicant for review or by the Minister, it is unlikely that the Tribunal will ever form the necessary opinion. The possibility of the existence of such documents, or class of documents, may be evident from documents tendered by the Minister at the hearing. The Tribunal may wish to exercise the power in s 500(6K) to ensure that injustice is not done to an applicant for review by selective production of documents in the possession or under the control of the Minister.

29 Parliament has chosen to place an express restriction on the entitlement of an applicant for review to rely on documents at a hearing in the Tribunal. That restriction is found in s 500(6J). It would have been a simple matter to include an express restriction on the Minister’s entitlement to rely on documents. No such express restriction is to be found. Nor is there the implication of such a restriction arising from the limited categories of documents with which the section deals.

30 For these reasons, I am of the view that the special scheme laid down in s 500 of the Migration Act for dealing with applications to the Tribunal for review of decisions applying the character test does not deprive the Tribunal of the capacity to exercise its normal powers to receive documents in evidence. The exception is that an applicant for review is expressly disadvantaged by subs (6J) by having to supply copies of any documents to the Minister two business days prior to the hearing if the applicant for review wishes to rely on documents. In the present case, it was open to the Tribunal to receive in evidence at the hearing the s 37 documents from the Queensland Tribunal proceeding concerning the appellant. Although the Tribunal, in mischaracterising the effect of subs (6K), made an error of law, the error did not affect the outcome of the issue as to the receipt of the s 37 documents. The learned trial judge was correct to say that the provisions of s 500 of the Migration Act do not exhaust the powers of the Tribunal, particularly the power to admit into evidence documents, in a case to which s 500 applies.

31 The disadvantage suffered by the appellant at the hearing in the Tribunal by reason of the receipt of the s 37 documents from the Queensland case was ameliorated in two ways. First, the appellant actually had those documents some days before he was obliged by s 500(6H) to put his case in writing before the Minister, and by s 500(6J) to give the Minister a copy of every document on which he intended to rely. Second, counsel for the Minister invited the Tribunal to give the appellant an adjournment for some days to consider the contents of the s 37 documents. The appellant declined this offer. In any event, the offer was probably based on a misunderstanding of the effect of subss (6H) and (6J). Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing. Compare Re Morris; Morris v Maroudas (1986) 66 ALR 699.

32 Although he was disadvantaged in meeting the evidence contained in the s 37 documents from the Queensland case, the appellant’s disadvantage in that regard is the disadvantage required by s 500(6H) and (6J) of the Migration Act. It is not open to the appellant to rely on that disadvantage as a ground for contending that the Tribunal made an error of law. It should also be pointed out, as the Tribunal found, that the allegations made in the statement of facts and contentions on which the delegate of the Minister had relied in making the original decision fairly raised all the allegations which the Minister intended to establish in evidence and rely upon in the Tribunal hearing. The s 37 documents contained the supporting documentary evidence for those allegations. The appellant therefore had an opportunity to file a written statement rebutting any of those allegations if he so desired and was able to do so.

33 In his amended notice of appeal and his submissions on the appeal, the appellant relied on several other grounds. In my view, there is no substance in any of them. The appellant was not denied natural justice by reason of the failure of the Minister to make available in the Tribunal for cross-examination the persons who had made the statements that formed some of the s 37 documents that were tendered. A right to cross-examine is not a necessary part of the right to a fair hearing. It was for the Tribunal to give to written statements such weight as it saw fit in the light of the fact that the appellant had not cross-examined the makers of the statements. Indeed, it is by no means clear that the appellant requested the Tribunal to require the Minister to make available any person for cross-examination. Nothing appears in the Tribunal’s reasons for decision to suggest any such application. The point appears not to have been taken at first instance, as the learned trial judge did not deal with it in his reasons for judgment.

34 The appellant submitted that the Tribunal had expressly characterised as a “very relevant matter” that the appellant had broken the conditions of visas which had been granted to him on two occasions in the past. The Tribunal found that the appellant broke the conditions of visas granted on 27 February 1998 and 20 May 1998 regarding residence and not working. The appellant maintains that he was granted these visas unlawfully. His case was that he had been arrested and detained illegally, on the false assumption that he did not have a valid visa, and was required to apply for the visa of 28 February 1998 in order to obtain release from detention. He said that this visa, and the subsequent one, were granted unlawfully, because he already had a valid visa. He invited the Tribunal to consider these matters and to deal with the issue of his character on the basis that he was not in breach of the conditions of the two visas because he was not bound to comply with them when they were imposed upon him unlawfully. He therefore argued that the Tribunal failed to take into account relevant considerations, namely that the arrest and detention were unlawful and the conditions of the visas were not lawfully imposed. The short answer to this is that there is no indication that the Tribunal failed to take into account these matters in reaching the conclusion that the appellant had been in breach of the conditions. The failure of the Tribunal to mention every element in the process of reasoning that led to its conclusion is not an indication that it failed to take some matter into account. Nor are the allegations made by the appellant necessarily relevant considerations. That concept is confined to a consideration that a decision-maker is bound to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 42 per Mason J.

35 In Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 (1999) 56 ALD 321 at [8], the Full Court said:

“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.”

In reliance on this statement of the law, the appellant submitted that the Tribunal set too high a standard in a case in which the appellant was seeking a bridging visa E pending resolution of various legal proceedings and review of his substantive visa application. The appellant contended that this was an error by the Tribunal in the application of principles. He argued that the Tribunal should not have found that the appellant failed to satisfy the character test on the basis of unsubstantiated allegations of criminal conduct.

36 In fact, the Tribunal did not make its finding on this basis. It expressly gave little weight to allegations of crimes committed by the applicant in the United Kingdom, saying that:

“they are at this stage, mere unsubstantiated allegations and unserved warrants and charges. The [appellant] has not yet had an opportunity to defend or explain those matters and they remain mere allegations.”

In relation to the allegations of misappropriation of cheques from the appellant’s employer, the Tribunal relied upon the fact that they had been substantiated by affidavits and had been the subject of a summary judgment for conversion of the cheques. It referred to:

“a meticulously presented paper trail which satisfied the Supreme Court and also this Tribunal that a sum of at least $417,515.30 was converted by the use of 4 cheques which had been fraudulently altered or uttered. In the absence of any acceptable explanation from the [appellant], I am satisfied that his behaviour regarding those cheques shows him to be not of good character within the meaning of the Migration Act. Whether he committed a criminal offence will be determined shortly by the District Court.”

37 A finding that the appellant was likely to act dishonestly at the expense of the Australian community, if he found himself free to do so, was based on the appellant’s breaches of conditions attached to previous visas and on a finding that he had deceived a woman with whom he had been living under an assumed name by letting her see false papers in that assumed name. The finding of likely dishonesty was not based on mere allegations of criminal conduct against the appellant. There was no misapplication of principle by the Tribunal. What the appellant really sought was to challenge the Tribunal’s findings of fact against him. An appeal from the Tribunal lies only on a question of law (s 44(1) of the AAT Act). If a finding of fact was open to the Tribunal, it cannot be challenged in such an appeal.

38 Similarly, the appellant’s attempts to argue that the Tribunal applied the wrong standard of proof, and that its decision was so unreasonable that no reasonable decision-maker would have come to it, cannot succeed. They are attempts to re-agitate issues of fact in this Court. The appellant also attempted to argue that the Tribunal has found against him in the application of the character test on a basis different from that put by the Minister. His argument was that the Minister put a case based on criminal misconduct, whereas the Tribunal found one based on civil misconduct, and that natural justice required the Tribunal to give notice to the appellant of the changed basis and provide him with an opportunity to meet the different case. The findings of the Tribunal were well within the ambit of the case put on behalf of the Minister. The fact that the Tribunal was not satisfied as to the full extent of that case but still found against the appellant does not demonstrate that the basis of the case changed.

39 For these reasons, I am of the view that the appeal must be dismissed. I would make an order to that effect, and order that the appellant pay the Minister’s costs of the appeal.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 19 September 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 244 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BRIAN GERALD JAMES GOLDIE

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	GRAY, RD NICHOLSON and STONE JJ
DATE:	19 SEPTEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

RD NICHOLSON J

40 I agree with the reasons of Gray J and the orders proposed by him.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.

Associate:

Dated: 19 September 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 244 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BRIAN GERALD JAMES GOLDIE

APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	GRAY, RD NICHOLSON AND STONE JJ
DATE:	19 SEPTEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

STONE J:

41 I agree with the orders proposed by Gray J and with his reasons for making those orders.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 19 September 2001

Counsel for the Appellant:	The appellant appeared in person

Counsel for the Respondent:	Mr P Macliver

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	28 May 2001

Date of Judgment:	19 September 2001

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