Re Hells Angels Motorcycle Club Incorporated v the Honourable GL Hand, State Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 539; (1991) 25 ALD 659 (Extracts) (11 November 1991)

FEDERAL COURT OF AUSTRALIA

Re: HELLS ANGELS MOTORCYCLE CLUB INCORPORATED
And: THE HONOURABLE G.L. HAND, STATE MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. V G273 of 1991
FED No. 692

[1991] FCA 539; (1991) 25 ALD 659 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

HEARING

MELBOURNE
11:11:1991

Counsel for applicant: Mr P. Rose.

Solicitor for applicant: Mr J.P. O'Sullivan.

Counsel for respondent: Mr R. Downing.

Solicitor for respondent: Australian Government Solicitor.

ORDER

That by 5 p.m. on Tuesday, 12 November 1991 the respondent consider and make decisions pursuant to the Migration Act 1958 in respect to the visa applications of the persons named in the schedule to this order.

That in considering each of the visa applications referred to in order 1 the respondent is directed not to take into consideration the contents of the letter referred to in these proceedings as the Joseph letter or any like material nor the fact that each applicant is a member or an associate of the Hell's Angels Motorcycle Club.

That the several decisions made by the respondent on 6 November 1991 refusing applications for entry visas made by Mitchell Kenneth Riley, John Peter Bryce, Robert Charles Crouch and Richard Edward Phillips be and are hereby set aside.

That each of the applications for entry visa referred to in order 3 is hereby referred to the respondent for reconsideration according to law and the respondent is directed to reconsider the same and to make decisions in relation thereto pursuant to the Migration Act 1958 by 5 p.m. on Tuesday, 12 November 1991.

That in reconsidering each of the applications referred to in order 3 the respondent is directed not to take into consideration the contents of the letter referred to in these proceedings as the Joseph letter or any like material nor the fact that each applicant is a member or associate of the Hell's Angels Motorcycle Club.

That the costs of these proceedings including any reserved costs be taxed and paid by the respondent.
SCHEDULE

Adrian Charles Goody
Robert Eidsmo
Mario Lassy Vedesgaard
Gordon Gary Grow
Michael Henry Kean
Andrew Charles Springham
John Frank Burr
Geoffrey Louis Eagle
Frank Boris Cikovich
Alan Joseph Hogan
Alan James Hogan
Danny Maupin
Bjorn Anders Christopher Mellgren
Holger Bossen
Jack B. Cottrill
Harlem Leroy Brower
Dennis Patrick McNally
Carlo Mario Buono
Mark Stephen Perry

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

FINDINGS OF FACT

I find that :

1. Of the 25 individuals referred to in the affidavit of Michael John
Gallway sworn 4 November 1991, 23 of those named are non-citizen,
non-resident members or associates of HAMC who have made
applications for entry visas to attend the proposed World Run.
2. Of the 23 applications received, only 4 have been considered by
the Minister and in each case a decision has been made refusing a
visa.
3. The Minister has failed to make decisions in respect of 19 of the
applications, none of which has been considered by him.
4. There has been unreasonable delay in making decisions in respect
of the 19 unconsidered applications.
5. The material contained in the first Joseph letter and the fact of
the membership of the respective applicants of HAMC are irrelevant
to the consideration on their merits of the various applications.
6. It is the intention of the relevant departmental officers to refer
to the contents of the first Joseph letter or like material and to
the fact of the respective applicants' membership of HAMC in
submissions to be made to the Minister in respect of the 19
unconsidered applications.
7. In respect of the 4 applications which have been considered and
refused, the Minister took into consideration irrelevant material,
namely, the contents of the first Joseph letter or like material
and the fact that the respective applicants are members or
associates of HAMC.

DECISION

The applicant in these proceedings is an association incorporated under the Associations Incorporation Act (Victoria) established for the purpose, inter alia, to foster, encourage, promote and advance the sport and recreation of motor cycling and to promote the acceptance of the ethical code of morality of the Hell's Angels Club. It is common cause that in other states of Australia and in many overseas countries there are similarly named organisations which, together with the applicant, are in some undefined way loosely affiliated. It is also common cause that for some months it has been known that the applicant (which is known as the Melbourne Chapter of the Hell's Angels Motorcycle Club) planned to conduct a "World Run" in South Australia in either late October or early November 1991. It now appears that the date of this event is likely to be some time later in November. For the purpose of attending, and taking part in, the World Run a number of non-resident non-citizen members or affiliates of the wider Hell's Angels Motorcycle Club (HAMC) have made application for appropriate entry visas.

2. The respondent to the proceedings (referred to hereafter as the Minister) is the Minister of State for Immigration, Local Government and Ethnic Affairs and is the person authorised by the Migration Act 1958 to deal with applications for entry visas.

3. By letter dated 10 May 1991 one Emil Joseph (Joseph) an officer of the Commonwealth holding the position of Assistant Secretary, Visitors and Temporary Entry Branch in the Department of Immigration, Local Government and Ethnic Affairs (the department) wrote to the president of the applicant referring to the proposed World Run and informing him of a decision made by the Minister that it would be contrary to the public interest for non-citizen members of HAMC to enter Australia in order to attend the World Run. It was pointed out that the effect of the decision would be that visas would not be issued to members of HAMC (who are not Australian citizens or permanent residents) to attend the World Run. It appears that when this letter was received it was at first treated as a hoax and it was not until early July 1991 that members of the applicant realised that it was genuine.

4. On 9 August 1991 proceedings numbered VG 223/1991 were commenced by the applicant in the Melbourne Registry of the Court in which it sought a review of the decision adverted to in Joseph's letter of 10 May 1991. The proceedings were resolved by an order made by consent on 23 August 1991 when the proceedings were dismissed and the respondent ordered to pay the applicant's costs. The consent order was made pursuant to terms of settlement whereby it was agreed between the parties that:

1. Every applicant for a visa to enter Australia who is
affiliated with the organisation known as "Hell's Angels" is
to have such application considered individually upon its
merits according to law.
2. The applicant is to provide to the respondent's authorised
officer Emil Joseph details of name and date of application,
cancellation or refusal of persons who have -
(a) previously held a visa which has been cancelled or,
(b) been refused a visa,
and such persons shall be reconsidered according to law.
3. The applicant herein will supply details of persons who make
application for a visa and the applications and prescribed
fee for such a visa to the respondent's authorised officer,
Emil Joseph, Assistant Secretary, Visitors and Temporary
Entry Branch, Benjamin Offices, Chan Street, Belconnen, ACT
and such application will be taken as having complied with
the regulations and procedures of the respondent in respect
of the making of such applications.
4. Applicants will be notified of the approval or otherwise of
their application for a visa and visas to be issued will be
so issued at an appropriate Consular Office.
5. That the application and Notice of Motion herein be
dismissed and that the respondent pay the applicant's cost
of proceedings herein.

5. The present proceedings between the same parties were commenced on 18 October 1991.

6. In an amended application filed 28 October 1991 the applicant sought to have the following conduct reviewed:

1. The failure of the respondent to make any decision or give
proper consideration on the merits of each application made
by non citizen affiliated members of the Hell's Angels
Motorcycle Club for temporary entry visas to enable them to
enter Australia to attend the 1991 World Run to be hosted by
the applicant and others on a farming property in South
Australia over three days in mid November 1991.
2. The failure of the respondent to expeditiously make a
decision in relation to each application by non citizen
affiliated members of the Hell's Angels Motorcycle Club for
temporary entry visas in accordance with the terms of
settlement of the applicant's previous application in this
Court No. VG 223 of 1991.
3. The failure or delay by the respondent to make decisions in
respect of each application by non citizen affiliated
members of the Hell's Angels Motorcycle Club so as to
effectively prevent each application from being considered
on its merits and so as to prevent each applicant from being
able to attend the planned world run.
4. The taking into account of information purportedly received
from law enforcement authorities in Australia of the nature
set out in the letter of E. Joseph, Assistant Secretary
Visitor and Temporary Entry Branch dated the 15th of October
1991 being Exhibit "FLPA1" to the affidavit of Leslie
Francis Phillips sworn the 18th day of October 1991.

7. In the amended application the applicant also sought the review of the following decisions:

1. That each applicant for an entry visa affiliated with the
Hell's Angels Motorcycle Club be required to answer and/or
supply material and reasons why the Minister should not
determine that he is a person likely to become involved in
activities disruptive to, or violence threatening harm to
the Australian community or a group within the Australian
community on the basis of the material set out in the
exhibit marked "FLPA1" referred to in the affidavit of
Leslie Francis Phillips sworn the 18th of October 1991.
2. That each applicant affiliated with the Hell's Angels
Motorcycle Club applying for an entry visa to Australia be
required to answer the material detailed in letters of the
nature of the exhibit marked "FLPA1" referred to in the
affidavit of Leslie Francis Phillips sworn the 18th day of
October 1991.
3. To have regard to matters of the type raised in the letter
referred to in exhibit "FLPA1" referred to in the affidavit
of Leslie Francis Phillips sworn the 18th day of October 1991.

8. During the course of the hearing a further paragraph was added following advice from the counsel appearing for the Minister that the Minister had that day considered and refused the visa applications of 4 individuals. The additional paragraph is:

4. The decisions made on 6 November 1991 to refuse entry visas
to Mitchell Kenneth Riley, John Peter Bryce, Robert Charles
Crouch and Richard Edward Phillips.

(The visa applicants named in the additional paragraph are hereafter referred to collectively as the 4 Canadian applicants).

9. A copy of the full text of the letter referred to above as exhibit FLPA1 to the affidavit of Leslie Francis Phillips sworn 18 October 1991 (but without the attachment referred to therein) is set out in the appendix to these reasons. This letter and other letters in substantially similar terms will hereafter be referred to as the Joseph letter.

10. No question has been raised as to the standing of the applicant to seek the relief sought and I do not propose to dwell on that issue except to observe that in my view there is ample evidence to support the conclusion that the applicant is in the circumstances of the case an aggrieved person within the meaning of the relevant sections of the Administrative Decisions (Judicial Review) Act 1977.

11. The relief sought can be conveniently summarised as follows:

1. An order directing the Minister forthwith to consider and make
decisions in respect of certain applications for entry visas which
have not yet been dealt with.
2. An order that in considering the applications for entry visas
referred to, the Minister be directed to not take into account the
contents of the Joseph letter or the fact that the respective
applicants are members of HAMC.
3. Orders that the decisions refusing entry visas to applicants
Mitchell Kenneth Riley, John Peter Bryce, Robert Charles Crouch
and Richard Edward Phillips be set aside.
4. Orders that the Minister forthwith reconsider the visa
applications of Mitchell Kenneth Riley, John Peter Bryce, Robert
Charles Crouch and Richard Edward Phillips and in so doing not
have regard to the contents of the Joseph letter or the fact that
the respective applicants are members of HAMC.

12. It is appropriate now to summarise the relevant events which have occurred since 23 August 1991.

13. In the period immediately after 23 August 1991 the applicants' solicitor Mr J.P. O'Sullivan (O'Sullivan) was in contact with officers of the department on a number of occasions when matters relevant to these proceedings were discussed, either by telephone or by correspondence. As a result of these discussions it was agreed that the terms of settlement would best be implemented if HAMC members seeking visas to attend the World Run made personal application to their nearest overseas mission. The need for a prompt response to applications was prominent among the issues canvassed over this period and by letter dated 1 October 1991 Joseph requested O'Sullivan (or his client, the applicant) to advise details of persons affiliated with HAMC who wished to visit Australia in connection with the World Run "by the close of business on Friday, 11 October 1991 to allow processes to be completed, submissions prepared, decisions taken and action taken to implement those decisions in time for the World Run".

14. In the opening paragraphs of the letter last referred to Joseph wrote:

I refer to the consent orders of 23 August made in the
Federal Court in relation to an application by your client,
the Hell's Angels Motorcycle club.
Under those orders, your client is to provide me with
details of affiliated persons who made applications for
visas, or whose visas have been cancelled or who have been
refused visas.
So far, I have been so notified of the details in relation
to six affiliated persons.

15. Whilst it may have been true that at the time of writing Joseph had been notified by the applicant of only 6 affiliated persons, the evidence establishes that by the time the letter was written some 14 visa applications from non-citizen HAMC applicants had been received and were known to the department. The applicants in question were Messrs Goody (application received in Canberra on 2.9.91), Grow (29.8.91), Kean (3.9.91), Springham (23.9.91), Burr (14.9.91), Cikovich (27.9.91), Maupin (3.9.91), Bryce (3.9.91), Riley (20.9.91), Mellgren (3.9.91), Cottrill (18.9.91), Phillips (3.9.91), Perry (4.9.91) and Crouch (24.9.91). In addition 4 further applications were reviewed in Canberra prior to 11 October 1991, they being applications made by Messrs Eidsmo (3.10.91), Vedesgaard (4.10.91), Brower (7.10.91) and McNally (3.10.91). Of the remaining 7 HAMC members referred to in these proceedings, no applications appear to have been received from 2 (Messrs Wizlow and Brown) whilst applications were received from the remaining 5 as follows: Messrs Cagle (15.10.91), Hogan Sr and Hogan Jr (25.10.91), Bossen (23.10.91) and Buono (25.10.91). As to the latter 5 it is worth noting the following. The application of Messrs Hogan Sr and Jr is accompanied by a full criminal history and a detailed explanation in relation to it. In the case of Mr Bossen the evidence is that the application was lodged at the relevant overseas post on 26 September 1991. Mr Buono's application was accompanied by a full record of convictions.

16. Following what have been said to be discussions with law enforcement agencies in Australia, Joseph wrote to the Director of the Australian Bureau of Criminal Intelligence in Canberra (ABCI) on 10 September 1991 inviting any information the Director considered relevant and which he may "wish placed before the Minister when he is considering the entry of each member of the Hell's Angels". Although the letter to the ABCI is in evidence, the reply is not. All that is said about the reply is that on 28 September 1991 the Director provided a "formal albeit general response". It was said, however, in cross-examination by the respondent's main witness Mr Michael John Gallway (Gallway) that the ABCI response on 28 September 1991 contained some information that had not previously been known to the department and that the Joseph letter had been written on the basis of the response. This I find somewhat inconsistent with the initial description in the affidavit of a 'formal albeit general response'. In view of the fact that Gallway chose to exhibit some 75 documents to his main affidavit, many of which were merely formal, and some repetitious, I draw the inference from the failure to disclose the ABCI reply, that to do so would not have assisted the Minister's case.

17. In accordance with procedures decided upon within the department for the processing of visa applications, letters were written to ABCI seeking a criminal record check on 20 of the 23 applicants. Those applicants in respect of whom no such request was made are Messrs Hogan Sr and Jr, and Buono. (As noted above a complete record of convictions was supplied with each of the applications of those applicants). The various requests to ABCI were not always made with alacrity. True it is that in 4 cases the request was forwarded on the same day as the visa application was received in Canberra, but at the other end of the scale there was a delay in one case of 13 days and in another of 14 days. The average delay between the receipt of the visa application and the request being forwarded to ABCI was about 5 days.

18. On 10 October 1991 the first of the Joseph letters was sent out. In all, 18 such letters were sent. Those applicants to whom no such letter was sent are Messrs Hogan Sr and Jr, Riley, Bossen and Buono. In no case was a letter sent sooner than 3 days after the receipt of the visa application in Canberra, and in some cases the delay was as much as 46 days. The average delay between receipt of the visa application and sending the letter was about 25 days.

19. As at the date of trial, only 13 responses had been received from ABCI. The time for a response varied from 6 days to 41 days (average 22 days).

20. The departmental procedures decided upon involved the writing of a second letter by Joseph to visa applicants once their record of convictions had been received from ABCI. This second letter enclosed a copy of the relevant record and invited comment on it within 28 days. Six such letters were sent. The delay between the receipt of an applicant's record from ABCI and the writing of the second letter varied from 7 days to 35 days (average 16 days). In 7 cases the Joseph letter was sent after receipt of an applicant's record from ABCI but without reference to any such record. In one case the Joseph letter was sent after advice from ABCI that the applicant had no convictions.

21. The department received a number of responses to the Joseph letter. On 22 October 1991 a letter was received from a Canadian solicitor acting for Messrs Bryce, Phillips, Crouch, Riley and Kean and 3 others said to have received the Joseph letter but who are not mentioned in any of the affidavits. The reply consisted of a firm denial of the characterisation of HAMC and its members contained in the Joseph letter. It also contains an assertion, which has not been contradicted, that in 1988 a World Run similar to that planned by the applicant, was conducted by the British Columbia Hell's Angels, and was attended by members from throughout the world (including Australia). The Canadian government elected not to invoke legislative power to deny admission to overseas members.

22. By way of example, the following specific comments provide a clue to the underlying policy adopted by the department in processing applications. 1. Prior to making the visa application presently awaiting the

decision of the Minister, Goody had on 2 July 1991 applied to the
Australian High Commission in London for a visa which was granted
the same day. On 4 July 1991 the department requested ABCI to
provide a copy of the applicant's record. On 25 July 1991 the
visa was cancelled apparently on the ground that Goody failed to
disclose his membership of HAMC and his desire to attend the World
Run. This is not said in so many words in the evidence but it is
implicit from the contents of a letter written to the Senior
Migration Officer in London on 4 July 1991 in which reference is
made to a departmental instruction known to have been issued on 14
May 1991. It is clear that the visa was not cancelled by reason
of any record of convictions that the applicant may have had.
Goody's second application was received on 2.9.91; there was a
delay of 9 days before any request was made to ABCI, however, a
reply was received 14 days later. Some 42 days after the
application and 19 days after the ABCI reply was received the
Joseph letter was sent, without any reference to his record. A
second letter inviting comment on the record was sent after these
proceedings were commenced 35 days after the record was received.
2. Springham's application was received in Canberra on 23.9.91
although it had been lodged at the High Commission in London 14
days earlier. On 24.9.91 a request was sent to ABCI for
particulars of any record and 9 days later ABCI advised that he
had no record.
3. Mellgren's application was received in Canberra on 3.9.91. The
Joseph letter was sent 41 days later and on 28 October 1991 the
applicant replied with a strong denial of the assertions made in
it. He has no record.
4. Bossen's application was received in Canberra on 23.10.91 although
in Gallway's affidavit it is said that it was received at the
Embassy in Bonn on 26.9.91. No explanation for the delay in
forwarding it has been offered.
5. Phillips was originally issued with a visa in Canada on 3 July
1991. On 8 July 1991 Gallway requested ABCI to conduct a criminal
record check but there is no evidence that any response was
received. On 11 July 1991 his visa was cancelled. He was told by
letter dated 11 July 1991 that the visa had been cancelled because
he did not meet the public interest criteria as defined in the
Migration Regulations. He reapplied for a visa on 9 September
1991 and on 11 September 1991 (more than 9 weeks after having
previously done so) Gallway requested ABCI to again conduct a
criminal record check. A reply was received from ABCI on 9
October 1991 advising that Phillips' record has been purged, he
having been granted a pardon after meeting the requirement of not
coming to criminal notice for 10 years after his last conviction.
(The date of the purging of his record is not stated).
Notwithstanding receipt of this reply he was sent the Joseph
letter on 11 October 1991. A response containing a strong denial
of the assertions contained in the Joseph letter was received from
his Canadian solicitor on 22 October 1991 and his application was
considered and refused on 6 November 1991. The Minister through
his counsel has refused to give reasons for the refusal.
Section 7(1) of the Administrative Decisions (Judicial Review) Act
provides:
7. (1) Where:
(a) a person has a duty to make a decision to which this
Act applies;
(b) there is no law that prescribes a period within which
the person is required to make that decision; and
(c) the person has failed to make that decision;
a person who is aggrieved by the failure of the
first- mentioned person to make the decision may apply to the Court
for an order of review in respect of the failure to make the
decision on the ground that there has been unreasonable
delay in making the decision.

23. It is not suggested by the Minister other than that he is a person who has a duty to make a decision to which the Act applies, namely a decision pursuant to section 24 of the Migration Act in respect of the various visa applications referred to in the proceedings. It is also common cause both that there is no law that prescribes a period within which the Minister is required to make a decision on the various visa applications and that he has not made any such decision in respect of the 19 visa applicants referred to in the proceedings whose applications have not yet been considered by the respondent.

24. In respect of each of the 19 applications referred to I find that there has been unreasonable delay in making a decision. I have reached this conclusion after a consideration of the totality of the evidence which admits of no other explanation than that since the settlement of the earlier proceedings officers of the department whose function it is to process the applications to a stage where they can be submitted to the Minister for consideration and decision have embarked upon a planned course of conduct designed for no purpose other than to delay the decision making process until it would be too late for an applicant to attend the World Run. Some specific aspects of the evidence that support this conclusion are:

i) The first of the Joseph letters was not sent out until over 7
weeks after the terms of settlement were agreed to
notwithstanding that applications had been received as early as
27 and 28 August 1991. No explanation has been offered as to the
delays, in some cases quite inordinate delays, which occurred
between the receipt of an application and the despatching of the
Joseph letter.
ii) The Joseph letter has not been shown to contain any new
information that was not available to the respondent when the
original ban was placed on HAMC members attending the World Run
in May 1991. This strongly suggests that the letter was merely a
device for delaying the submission of applications to the
Minister for consideration.
iii) The period of 28 days referred to in the Joseph letter was
inordinately long given the relative dates of when the respective
letters were despatched and the proposed date of the World Run,
particularly in view of the ready availability world-wide of
facsimile communications. The submission made on the Minister's
behalf that the letter was sent, and the period of 28 days
allowed for a response, was for the purpose of applying the rules
of natural justice is not supported by the facts. Indeed, the
contrary is so.
iv) The non-specific and anecdotal nature of the allegations
contained in the Joseph letter rendered a meaningful response
virtually impossible and in any event the letter could have been
directed to the applicant for comment rather than to each
individual visa applicant.
v) The failure of the department, in circumstances in which it
purported to be co-operating with the applicant to deal
expeditiously with the visa applications, to notify the applicant
of its intention to send the Joseph letter or of its contents.
vi) The delay occasioned by the device of seeking the views of ABCI
in circumstances in which 4 months earlier the Minister had
decided that it would be contrary to the public interest to
refuse entry to Australia of non-citizen HAMC members wishing to
attend the World Run. No credible explanation has been offered
as to why any further inquiry from ABCI was necessary in
September 1991 nor what benefit was derived from making same.
vii) The sending of the Joseph letter to visa applicants whose records
had been supplied by ABCI without reference to the record and the
further delay in some cases before putting the record to the
applicants for comment.
viii) The failure to deal promptly with applications from visa
applicants who clearly had no record of convictions.

25. Whether or not the Minister had any personal knowledge of what was occurring in his department between 23 August 1991 (when the terms of settlement were agreed) and 18 October 1991 (when these proceedings were instituted) is not a fact upon which I am able to make any finding but assuming as I do that the Minister was privy to the terms of settlement entered into on his behalf, no explanation has been offered by him or on his behalf as to why the matter was allowed to drift on for over 2 months without any intervention on his part. There is nothing in the evidence to suggest that he had any involvement between 23 August 1991 and 6 November 1991 when he considered the visa applications of the 4 Canadian applicants. Given the circumstances of the case the whole procedure adopted to deal with the visa applications was unreasonable and the failure of the Minister to deal with the applications within a short period after their receipt in Canberra has occasioned an unreasonable delay in making the necessary decisions.

26. In my view the Minister's failure to make decisions in the case of the 19 visa applications should be reviewed. For the purpose of doing justice between the parties I propose to direct that the Minister by 5 p.m. on Tuesday, 12 November 1991 make decisions in response to the 19 visa applications identified earlier in these reasons.

27. I turn now to deal with the question of whether the Minister should be restrained from taking into account, when making the decisions directed to be made, the contents of the Joseph letter and the fact that the respective applicants are members of HAMC. In my view he should be so restrained.

28. The full text of the Joseph letter is set out below and I do not need to rehearse its contents. It was said in evidence that the letter reflects the information obtained by the department from law enforcement agencies, that the information in the letter represents the whole of the material available to the department concerning HAMC and that it was intended that the same be placed before the Minister as part of the department's submission to him in respect of each application. In the circumstances of the case the Minister will of course be aware that the visa applicants are members of HAMC and wish to attend the World Run.

29. The Joseph letter introduces its explanation of the criteria that applicants must satisfy to be eligible for the grant of a visa for travel to Australia by the statement:

In your application you have indicated that you are a member
of the Hell's Angels Motorcycle Club.

Clearly this fact is central to all that follows.

30. The information asserted to have been received from law enforcement agencies is said to be relevant to the "public interest" criteria and in particular reference is made to the "likely harm" criterion, which in Migration Regulation 2(1)(c) is expressed as:

... the person is not determined by the Minister acting
personally to be likely to become involved in activities
disruptive to, or violence threatening harm to, the
Australian community or a group within the Australian
community.

31. The information which Joseph suggests may cause the Minister to determine that as a member or associate of HAMC the visa applicant would be unable to satisfy the likely harm criterion of the public interest criteria contains a number of bald assertions, namely:

1. The Hell's Angels Motorcycle Club is an international
criminal organisation involved in: the manufacture and
distribution of the illicit drug amphetamine and its
derivatives; prostitution; juror intimidation; as well
as the commission of acts of violence including those
involving the use of firearms and explosives.
2. The Hell's Angels Motorcycle Club is not merely an
organisation of motorcycle enthusiasts some of whose
members have criminal histories, rather it is a highly
organised and disciplined criminal organisation whose
members have committed crimes arising from or in
connection with their membership of the club and in
furtherance of its criminal objectives.
3. The proposed World Run, which the Melbourne Chapter of
the Hell's Angels has advised us is to be held in
Australia during October or November this year, is an
event that would bring together international and
local members of the Club thereby providing an
opportunity for members to discuss and to plan the
organisation's international criminal activity, in
particular the manufacture and distribution of
amphetamines, and could also result in members'
involvement in activities disruptive to, or violence
threatening harm to, the Australian community or a
group within that community.

32. On any view the "evidence" advanced to support these assertions (assuming it to be factually accurate) does no more than establish that:

a) In 1985 in USA, 125 members of HAMC were arrested (emphasis added)
on State and Federal drug and racketeering charges. (Nothing is
said as to any convictions.)
b) In October 1990, after a 23 month investigation, 14 members and
associates of the Omaha (Nebraska) Chapter of HAMC were charged
(emphasis added) on a variety of offences. (Nothing is said as to
any convictions.)
c) In May 1990 a HAMC member in Adelaide was found to be the
proprietor of several escort agencies. (It is not asserted that
to conduct an escort agency is illegal.)
d) In November 1987, 44 HAMC members in USA were arrested (emphasis
added) on a variety of charges. (Nothing is said as to any
convictions.)
e) In Canada the HAMC has been identified as being involved in the
importation and trafficking of drugs, money laundering,
prostitution and dealing in stolen property. (Nothing is said as
to any convictions for these offences nor is any date mentioned
when the identification occurred.)
f) A former member of HAMC in USA made a number of accusations
against the HAMC organisation in a book published in 1978.
(Nothing is said as to any prosecutions or convictions flowing
from the revelations contained in the book in the 13 years since
its publication.)

33. It is sought to restrain the Minister from taking into account the contents of the Joseph letter and the fact of membership of HAMC in considering the visa applications and making decisions in relation thereto on the ground that the proposed decision would be an improper exercise of the power conferred by the Migration Act because it would involve

a) taking irrelevant considerations into account in the exercise of
the power;
b) an exercise of a discretionary power in accordance with a rule or
policy without regard to the merits of the particular cases.

(ADJR Act, s.6(1)(e) and (2)(a), (f)).

34. Other grounds contained in subsection 6(2) may also be relevant.

35. The past conduct of individual HAMC members in USA and Canada, and the proprietorship of 4 escort agencies in Adelaide by a HAMC member (to the extent documented in the Joseph letter) cannot in my view be relevant, in the absence of any other evidence (and I am told there is no other evidence), to the question of whether the Minister should determine that non-citizen members of HAMC wishing to attend the World Run would be likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community. The suggestion (apparently based upon what was written by a former American member in 1978) that the World Run would provide an opportunity to plan the organisation's international criminal activity is so fanciful, and so lacking in any factual basis to support it, that the only inference that can be drawn is that in October 1991 nothing had changed since the Minister's decision in May 1991 to exclude non-citizen HAMC members wishing to attend the World Run, irrespective of the merits of each particular case. The inference is also open that the settlement of the previous proceedings was but a step along the path of implementing the policy decision made in May. The department's conduct has tended to compromise the integrity of the Minister which it is supposed to serve.

36. There are ample grounds to justify an order restraining the Minister from taking the Joseph letter and the fact of membership of HAMC into consideration in the exercise of his power to make decisions in relation to the 19 outstanding visa applications.

37. The question of the review of the decisions made on 6 November 1991 to refuse visas to the 4 Canadian applicants involves much the same considerations. Although the Minister is not obliged to give reasons for decisions under the Migration Act in connection with the issue or cancellation of visas (ADJR Act, s.13(11)(c); Schedule 2, paragraph (d)(ii)) (and as I understand it, is not prepared to give his reasons for refusing visas to the 4 Canadian applicants) there is ample evidence from Gallway to indicate that the contents of the Joseph letter and the fact of the 4 applicants' membership of the HAMC were put to the Minister in each case and consistent with what has been said above I find that the decisions involved an improper exercise of power both by reason of irrelevant considerations having been taken into account in the exercise of the power and by reason that the power has been exercised in accordance with a policy without regard to the merits of the particular cases. This is clearly demonstrated by the refusal to grant a visa to Phillips, who has not been shown to have any record of convictions, and in respect of whom the only evidence to support the decision to refuse entry was his membership of HAMC.

38. I would set aside the decision of the Minister to refuse entry visas to the 4 Canadian applicants with effect from 6 November 1991 and refer each such application to the Minister for further consideration subject to the further directions that such reconsideration be completed before 5 p.m. on Tuesday, 12 November 1991 and that in so doing the Minister shall not take into consideration the contents of the Joseph letter or any like material nor the fact that each applicant is a member of HAMC.

39. The Minister should be ordered to pay the costs of these proceedings including any reserved costs.