|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 7 July 1998
IMMIGRATION - cancellation of visa - application to review decision of the Minister to cancel the applicant's visa and declare him an excluded person under ss 501 and 502 of the Migration Act 1958 (Cth) - previous decision by the Administrative Appeals Tribunal directing grant of a visa refused by reason of applicant's conviction and imprisonment for offences committed in Australia - good character - seriousness of circumstances - national interest - whether actual bias by Minister - whether exercise of power under ss 501 and 502 precluded by prior decision of Administrative Appeals Tribunal on same facts and circumstances.
Migration Act 1958 (Cth) ss 501, 502
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 139 ALR 84, cited
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 151 ALR 505, cited
Wannakuwattewau v Minister for Immigration and Ethnic Affairs (Fed C of A, North J, 24 June 1996, unrep), cited
Sing v Minister for Immigration and Ethnic Affairs (Fed C of A, Lockhart J, 18 October 1996, unrep), cited
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136, cited
Gunner v Minister for Immigration and Multicultural Affairs (Fed C of A, 19 December 1997, Sackville J, unrep), not followed
JIA LE GENG V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
WAG 63 OF 1997
FRENCH J
PERTH
1 JULY 1998 IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY WAG 63 of 1997
BETWEEN: jia le geng
applicant
and: the minister for immigration and multicultural affairs
RESPONDENT
|
JUDGE: | FRENCH J |
| DATE OF ORDER: | 1 JULY 1998 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIAN DISTRICT REGISTRY | WAG 63 of 1997 |
|
BETWEEN: | JIA LE GENG
APPLICANT |
|
AND: | THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT |
|
JUDGE: | FRENCH J |
| DATE: | 1 JULY 1998 |
| PLACE: | PERTH |
In this case, Jia Le Geng, a Chinese national challenges by way of judicial review a decision of the Minister for Immigration and Multicultural Affairs to cancel his visa and declare him to be an excluded person. The Minister has done so on the basis of convictions for sexual assault and related offences against Mr Jia which have led him to form the view that Mr Jia is not a person of good character and that the seriousness of the circumstances and the national interest justify his exclusion from Australia. This view is formed in spite of a decision of the Administrative Appeals Tribunal, substantially upheld on review by this Court, that Mr Jia is, notwithstanding his convictions, a person of good character. That decision had regard to the particular circumstances surrounding the convictions and the strong support and evidence as to Mr Jia's character from a number of Australian residents.
The challenge to the Minister's decision raises the question whether it was affected or induced by actual bias and whether he acted upon a wrong view of the relevant law. It also raises a question whether in light of the Administrative Appeals Tribunal decision the Minister had the authority, acting on essentially the same facts and circumstances, to effectively override that decision.
The case is, in my opinion, a very sad one. It is, however, to be determined by reference to the relevant legal principles. Its outcome does not reflect any view as to the correctness or otherwise of the assessment of Mr Jia's character by the Minister or the Tribunal.
FACTUAL BACKGROUND
Jia Le Geng is a Chinese national who arrived in Australia on a student visa on 17 August 1991. On 12 September 1991 he applied for refugee status in Australia and for a Domestic Protection (Temporary) Entry Permit (784). On 30 November 1992 a delegate of the Minister for Immigration, Local Government and Ethnic Affairs (as he was then designated) refused Mr Jia's application for refugee status. Mr Jia applied for review by the Refugee Status Review Committee of that decision and following a recommendation from the Committee on 17 March 1993 the Minister's delegate again determined on 17 May 1993 that he was not a refugee.
On 8 September 1993 Mr Jia was detained in custody under the Migration Act 1958 (Cth)as an illegal entrant and on 9 September 1993 requested an extension of time to lodge an application for an entry permit/reconsideration/review. He was released from custody on conditions including employment restrictions and a bond of $5,000 on 20 September 1993. He sought a review by the Minister of the refusal of his refugee status application. On 24 September 1993 a delegate of the Minister ordered that he be deported from Australia pursuant to s 60(1) of the Act. In October 1993 Mr Jia undertook employment under a false name, and on 19 October 1993 was taken into custody for breaching a condition of his release in relation to employment. The $5,000 bond was forfeited. He was charged with breaches of the Migration Act 1958 (Cth) and the Taxation Administration Act 1953 (Cth).
On 1 November 1993, the Minister made a statement in relation to Chinese nationals in Australia announcing special criteria for permanent entry permits (here referred to as Special Entry Permits). On 19 November 1993 a Custody Review Officer of the Department of Immigration and Ethnic Affairs decided that Mr Jia met threshold criteria for an application for a Special Entry Permit. He was released from custody on his undertaking to abide by conditions of release.
In December 1993, Mr Jia was arrested and charged with offences of sexual assault and deprivation of liberty of a woman, You Li, with whom he had previously had a relationship. While awaiting trial on these charges he was convicted on 11 January 1994, in respect of the earlier illegal employment, of performing work while an illegal entrant without permission contrary to s 83(2) of the Act. He was also convicted in relation to that matter, of using another person's tax file number in a manner connecting it with that person's identity contrary to s 8WB(1)(b) of the Taxation Administration Act 1953 (Cth). He was fined $600 and costs in relation to the convictions but served a period in custody in lieu of paying the fines.
On 18 February 1994 Mr Jia was granted permission to work in Australia. In April 1994 he applied for a Special Entry Permit. On 11 August 1994 he was advised by the Department of Immigration and Ethnic Affairs that he had been granted a Processing Entry Permit allowing him to maintain his legal immigration status in Australia whilst his substantive application for a Special Entry Permit was processed.
In February 1995, Mr Jia was brought to trial on the charges laid against him in December 1993. He was convicted after trial on four counts. They were, in substance, as follows:
1. That on 21 November 1993 at Northbridge he unlawfully assaulted You Li and thereby did her bodily harm.
2. That on 29 November 1993 at Wembley he unlawfully detained You Li.
3. That on 30 November 1993 at Wembley he made a threat to unlawfully harm You Li.
4. That on 30 November 1993 he sexually penetrated You Li.
He was sentenced to a total of six years and three months after credit for three months spent in custody at the Canning Vale Remand Centre. On the sexual penetration charge he was sentenced to four years and nine months after allowing credit for time spent in custody. On the charge of threatening to do unlawful harm he was sentenced to one and a half years cumulative on the sentence for sexual penetration. On the unlawful detention charge he was sentenced to one and a half years which was made concurrent with the other sentences and on the charge of unlawful assault he was sentenced to twelve months imprisonment also concurrent with the other sentences.
In his sentencing remarks, Walsh J in the Supreme Court of Western Australia, said it was clear that Mr Jia had assaulted You Li on 21 November without any justification or excuse and with considerable force. Although he had sought to minimise that during his evidence, it was the view of the Judge that he should be sentenced on the basis that he applied considerable force when he struck her thereby causing her to go to the ground and at the very least leaving her with a bruise to her buttock. The Judge remarked that it may be that she was fortunate that no further injury of any substance was inflicted.
The remaining three offences occurred about eight or nine days later in the early hours of the morning when Mr Jia detained You Li for a considerable period of time over some hours and during that time threatened her with harm and sexually penetrated her without her consent.
Referring to the background of the offences the sentencing Judge said:
"It is clear from the evidence adduced before the jury that you had an association with You Li during 1993 which developed initially into one of love and affection between both of you. Subsequently, however, it became clear on the evidence that You Li determined that she no longer wished to continue with the relationship. It's apparent that difficulties had been caused over, amongst things, (sic) gambling and moneys said to have been taken and no doubt your emotional state was compounded by worry over immigration and by two periods of detention.
Be that as it may, in my view you became obsessed with her and were not prepared to accept her choice to not have anything further to do with you. Against that background you detained her in the flat, threatened to harm her and sexually penetrated her. In relation to the sexual penetration, whilst you did not inflict any injury to her as such, nonetheless that does not mitigate your actions having regard to the fact that you obtained her consent, to use the word "consent" in an inept way, by reason of a threat. "By consent" - I withdraw that; "submission" would be the more appropriate word - by reason of the threat that you made to her, and I accept that she was in genuine fear of you."
The sentencing judge said in the circumstances a substantial custodial sentence must be imposed to deter others in the community who might be tempted to treat women in the way that Mr Jia had done which would not be tolerated in any civilised community.
Looking at the positive side of Mr Jia's background, the sentencing judge said:
"Having said that, there is much in your background to your credit. You were educated in China and obtained a degree, you came to this country as a refugee and it is clear that within the limits of your capabilities you worked hard and endeavoured to make this country your home.
I have emphasised that you were under a great deal of emotional strain at the time by reason of the difficulties you had with immigration, compounded with the obsessive attitude you had to your former partner. Having said all that, at the end of the day I am still required to impose a substantial custodial sentence. However, because of the particular circumstances of this case, I impose a sentence which I would have thought is at the lower end of the scale for these types of offences."
Mr Jia appealed against the convictions to the Western Australian Court of Criminal Appeal and on 4 August 1995 the appeal was dismissed.
On 18 August 1995 a delegate of the Minister refused Mr Jia's outstanding application for a Special (Permanent) Entry Permit. Mr Jia applied to the Migration Internal Review Office for a review of that decision. Following review, on 22 November 1995, his case was reassessed and on 1 December 1995 a delegate of the Minister refused to grant him a Transitional (Permanent) Visa or a Resident Return Visa. Mr Jia then applied to the Administrative Appeals Tribunal for a review of the decision. His application was made on 8 January 1996 and the hearing proceeded before Deputy President Barnett on 25 and 26 June 1996.
On 23 July 1996 the Tribunal set aside the decision under review and remitted it to the Minister with a direction that Mr Jia qualified for obtaining a Transitional (Permanent) Visa on the basis that he was a person of good character.
In his decision, the Deputy President said, applying Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 that the Tribunal did have the power to consider the circumstances surrounding the commission of an offence for the purpose of determining what weight and gravity should be attributed to the conviction as one of the relevant factors in assessing whether an applicant for a visa was "of good character" for the purposes of the Migration Act 1958 . He described Mr Jia as a 32 year old man from a Chinese cultural background who arrived in Australia after his involvement with the Chinese Democratic Movement and the Tiananmen Square events of 1989. He commenced a post-graduate diploma in chemistry at Curtin University on 17 August 1991. The Tribunal found that as a result of his move to Australia he was isolated from his family, social support systems and Chinese "norms" of behaviour. The Tribunal described Mr Jia's relationship with You Li as "complex and bizarre" and "intensely sexual and emotional".
The Tribunal accepted Mr Jia's evidence that You Li used his telephone for long expensive international telephone calls at his expense, despite his frequent objections, and also accepted his evidence about what it described as "her compulsive and irresponsible gambling". On several occasions, it found, she borrowed his money and lost it at the casino until he refused to lend or give any more. She borrowed from other men and Mr Jia felt obliged to repay those loans. The Tribunal accepted that he became quite distraught that he was unable to avoid the constant drain on his funds caused by her compulsive gambling addiction. It also found that in order to acquire funds to support her addiction she involved herself in relationships with men from whom she could borrow money.
In May 1993, having received advice from the Minister's delegate which to Mr Jia indicated that his deportation was imminent, he had withdrawn from bank accounts his savings of $11,000 to fund his return to China and to provide money for his father whose health was deteriorating. The money, which he hid in his flat, went missing. Mr Jia subsequently viewed a video of Li You losing large sums of money at the casino on the night that the $11,000 had disappeared. The Tribunal found that "she falsely denied that she had taken the money and pretended that $100 of her own money had also been stolen".
Their relationship deteriorated thereafter. They frequently argued about money and about her gambling. Subsequently she moved out of the flat at his request but maintained contact with him and continued a sexual relationship with him. He continued to provide her with money to pay off her gambling debts. The Tribunal found that during the period that Mr Jia was in immigration custody in September 1993, Li You finally admitted to losing his $11,000 at the casino. In the meantime she had moved into a unit occupied by another person, Mr Ian Kerr. Mr Jia felt that his relationship with Li You had developed an ambiguous on/off nature.
Following his release Mr Jia, according to the Tribunal, became very jealous, hurt and confused over Li You's relationships with Ian Kerr and with another friend, Mr Ji. On 20 November 1993 he went to collect Li You from the Northbridge Pavilion where she worked only to find that she had arranged for Mr Kerr to collect her. He later met her outside Mr Kerr's flat and there was an argument which culminated in him pushing her and as a result of which she fell on to the kerb and bruised her buttock. It was this incident, the Tribunal found, which resulted in the assault conviction. The Tribunal also found that there was an incident between Mr Jia and Mr Ji on 29 November when the two men were involved in a struggle in the presence of Li You who "continued to play an ambiguous role, hoping to maintain a relationship with both men". The Tribunal's findings in relation to the events constituting the sexual assault and related charges of 29 November 1993 are as follows:
"Later that evening the applicant went for a walk and met up with Li You, the two of them went back to his flat. The two of them talked about matters including Li You's gambling. The applicant and Li You then went to the applicant's car, drove it to the Herdsman Hotel and they had sex while parked in the carpark. The applicant insists that Li You consented to this and that they then drove back to his flat. Li You later claimed that she had not consented to the sex in the car park and that he had forced her to return to his flat. These charges were denied by the applicant had (sic) he was found not guilty of any offences in the car park. Once back in the flat they again had sex and again the jury found him not guilty of rape. However, in the early hours of the morning he refused to take her home and this refusal was the subject of the unlawful detention conviction. This incident occurred whilst the applicant's flatmate, Brad, was in an adjoining room. Li You had become very upset at the applicant's refusal to take her home, a distance of 200 metres and she called out loudly and kicked at Brad's bedroom door until he came out. She then went home by herself. Later in the day the applicant walked to Li You's flat to find that Li You was not there. On the way back to his flat, Mr Ji and Li You drove up to the applicant. Mr Ji parked the car and Li You got out and came and spoke to the applicant. Li You then went back to Mr Ji's car and told Mr Ji that he could leave. As a result of a threat to unlawfully harm her (of which the applicant was convicted) Li You accompanied the applicant back to his flat again. Once at the flat, the applicant and Li You engaged in sexual conduct which was interrupted by the arrival of the police. After a police officer questioned Li You outside the flat she complained that the applicant had just raped her before the police arrived. It was then that she also complained about the incident in the Hotel car park. The applicant was later acquitted of rape in the car park but convicted of rape and unlawful detention in the flat."
The Tribunal did not accept Li You as a witness of credit saying that she was manipulative and argumentative and that some of her evidence to the Tribunal was inherently unbelievable and in conflict with the transcript of her evidence at the criminal trial. The Tribunal found that she was clearly lying. Mr Jia on the other hand was found to present as an intelligent person with a good reputation amongst his peers and friends except his conduct at the time of the offences. Since his conviction he had had a record of good conduct in prison. He was not required to participate in the sex offenders' treatment program because his offence was considered to be a "situation" offence but he did do a "control of aggression course". His job prospects were found to be reasonably good. The migration offences relating to illegal employment and the use of another person's tax file number in connection with that employment were not raised by the Minister before the Tribunal as evidence of lack of good character and the Tribunal gave them little weight.
The Tribunal concluded that Mr Jia's past criminal conduct was all related to one stage of his relationship and did not indicate a long term tendency to violence, criminal conduct or antisocial sexual behaviour.
Excellent character evidence was given for him by "an impressive cast of witnesses". The Tribunal found that for approximately twelve months after the offences, while he was free on bail awaiting trial, Mr Jia obtained legal employment, worked industriously, lived quietly and without trouble, formed a loving and respectful relationship with another woman and her family and paid back to his friend the $5,000 bond which had been forfeited. It said he had proved to be a good member of Australian society during this period and retained the respect of his friends and supporters. The Tribunal noted that two years and eight months had elapsed since the commission of the offences. This it characterised as a significant period against which to assess a short period of atypical criminal conduct in an otherwise well behaved person. It found there was no significant likelihood of undue harm to the Australian community of Mr Jia reoffending or engaging in further unacceptable conduct in Australia. Despite the fact that Mr Jia had been convicted of serious offences, after considering all the circumstances of his past criminal conduct and viewing it in the light of all the other evidence relating to his character, the Tribunal was not satisfied that he was a person who was not of good character as that phrase is used in s 501 of the Migration Act 1958 . Having made that assessment the Tribunal set aside the decision under review and remitted the matter to the Minister with a direction that Mr Jia qualified for a Transitional (Permanent) Visa on the basis that he was of good character.
The Minister appealed to the Federal Court from the Tribunal's decision and on 20 December 1996 Carr J ordered the decision to be set aside and remitted to an identically constituted Tribunal for further consideration. The basis of his decision however was limited to a finding that in certain respects the Minister was denied procedural fairness.
His Honour found there was nothing in the Tribunal's reasons to suggest that it had misdirected itself about the meaning of "good character" or that it had approached the task of considering whether it was satisfied that Mr Jia was not of good character in any manner inconsistent with what was said by the Full Court in Irving v Minister of State for Immigration Local Government and Ethnic Affairs (Fed C of A, Full Court, 30 July 1996, unrep).
The setting aside of the Tribunal's decision by Carr J depended on two elements of procedural unfairness. The first was that the Tribunal relied to a significant extent on a finding of a relationship between Li You and Mr Ji, whereas in the course of the hearing the impression was created that it did not regard that matter as of any relevance to its decision. The second element of procedural unfairness arose out of the Tribunal's reference to a Corrective Services file which had not been made available to the Minister for consideration of its content in order to enable the Minister to address that content at the hearing.
Having regard to the width of the Minister's grounds of appeal against the Tribunal's decision Carr J referred to the outcome as a "fairly limited degree of success on the applicant's part".
On 14 March 1997, the matter having been remitted to the Tribunal, Deputy President Barnett, in accordance with the findings of Carr J, heard evidence from Mr Ji who was cross-examined and also accepted into evidence the relevant Corrective Services file on which neither party made submissions. The Tribunal came to the same conclusions and again set aside the decision under review and remitted the matter to the Minister with a direction that Mr Jia qualified for obtaining a Transitional (Permanent) Visa on the basis that he is of good character. In that month also Mr Jia was released on parole.
On or about 14 April 1997 officers of the Department of Immigration and Multicultural Affairs prepared a background brief for the use of the Minister as required. It was not prepared under his instructions. The first page of the brief in block letters contained the following text:
ISSUE:
PRINT AND ELECTRONIC MEDIA HAVE REPORTED THE DECISION BY THE AAT THAT A NON CITIZEN SENTENCED TO 6 AND A HALF YEARS JAIL FOR OFFENCES INCLUDING RAPE, ASSAULT OCCASIONING BODILY HARM, THREATENING TO DO UNLAWFUL HARM AND UNLAWFUL DETENTION IS OF GOOD CHARACTER AND IS TO BE GRANTED A PERMANENT VISA.
TALKING POINTS:
. MOST AUSTRALIANS WOULD FIND IT DIFFICULT TO RECONCILE A 6 AND A HALF YEAR JAIL SENTENCE FOR RAPE WITH A FINDING BY A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL THAT THE PERSON CONCERNED IS OF GOOD CHARACTER;
- JUST FOR GOOD MEASURE MR JIA ALSO HAS BEEN CONVICTED OF IMMIGRATION AND TAXATION OFFENCES SINCE ARRIVING IN AUSTRALIA IN 1991 AS A STUDENT.
. THIS LATEST AAT DECISION HAS ESSENTIALLY REJECTED THE COURT'S FINDING OF CULPABILITY BY FINDING MR JIA'S BEHAVIOUR LEADING TO THE OFFENCES JUSTIFIABLE BECAUSE OF THE RAPE VICTIM'S CONDUCT TOWARDS HIM AND HIS OWN REASONABLE OR UNREASONABLE FEELINGS OF JEALOUSY. THE AAT CONCLUDED NOTWITHSTANDING HIS CONVICTIONS THAT HE IS OF GOOD CHARACTER.
. I FIND THE LINE OF REASONING TAKEN BY THE AAT BEYOND COMPREHENSION;
- AN APPEAL AGAINST THE AAT'S LATEST DECISION IS BEING MADE.
- I AM SURE THAT MOST AUSTRALIANS WOULD BE APPALLED THAT MR JIA HAS BEEN FOUND TO BE OF GOOD CHARACTER.
. THE GOVERNMENT IS CONCERNED ABOUT EMERGING TRENDS FOR TRIBUNALS TO DISCOUNT THE IMPORTANCE THE GOVERNMENT ATTACHES TO CHARACTER ISSUES. I HAVE REFERRED TO THE JOINT STANDING COMMITTEE ON MIGRATION THE HANDLING OF APPEALS AND WHETHER THE DEPORTATION REGIME NEEDS TO BE STRENGTHENED. I ALSO WILL SOON BE WRITING TO THE ATTORNEY GENERAL AND THE PRIME MINISTER ABOUT OPTIONS WHICH MIGHT BE TAKEN TO STRENGTHEN DECISIONS TO REFUSE OR TO CANCEL VISAS ON CHARACTER GROUNDS."
An alternative version of this brief softened the criticism of the AAT by substituting for it the following words:
". I HAVE DIFFICULTY IN ACCEPTING THE LINE OF REASONING TAKEN BY THE AAT;
- A PROTECTIVE APPEAL AGAINST THE AAT'S LATEST DECISION HAS BEEN LODGED
- I AM SURE THAT MOST AUSTRALIANS WOULD BE MOST SURPRISED THAT A NON-CITIZEN WITH SUCH CONVICTIONS HAS BEEN FOUND TO BE OF GOOD CHARACTER."
The text of the rest of the alternative version is the same as the first version.
It was an agreed fact between the parties in these proceedings that at the time the background brief was prepared the Minister did hold the following opinions:
1. That most Australians would find it difficult to reconcile a 6 and a half year jail sentence for rape with a finding by a Deputy President of the Administrative Appeals Tribunal that the person concerned is of good character.
2. That "this latest AAT decision has essentially rejected the court's finding of culpability by finding Mr Jia's behaviour leading to the offences justifiable because of the rape victim's conduct towards him and his own reasonable or unreasonable feelings of jealousy".
3. That "the government is concerned about the emerging trends for tribunals to discount the importance the government attaches to character issues".
It is also agreed that the Minister did not publicly express those opinions. Nor did he hold the opinion that the line of reasoning taken by the Tribunal was "beyond comprehension" or that most Australians would be appalled that Mr Jia had been found to be of good character". His opinion at this time was better expressed in the background brief of 24 April 1997 which stated:
"I have difficulty in accepting the line of reasoning taken by the AAT....I am sure that most Australians would be surprised that a non-citizen with such convictions has been found to be of good character."
On 14 April 1997 the Minister was interviewed on radio 2GB by Clive Robertson.
In the course of his interview with Mr Robertson the Minister said:
"I'm very unhappy about the way in (sic) the Administrative Appeals Tribunal has been dealing with numbers of matters involving the Immigration Department in the way in which these discretions have been exercised by members of the Tribunal.
Well, I've asked the Joint Committee on Migration of the Parliament to look at the whole question of criminal deportation as to ways and means in which we can strengthen the provisions to have them operating as they, I believe, they were originally intended and as, I think, the public would expect them to operate."
The Minister in the course of the interview, expressed disappointment that the Tribunal seemed to be overturning a very large number of cases and that criminal deportation had come down to a point where only about forty or fifty people are in fact deported in any one year. Asked by Mr Robertson whether it was written down anywhere exactly what a person of good character is, the Minister answered:
"What we are looking at here is the commission of offences. I don't believe you are of good character if you've committed significant criminal offences involving penal servitude. The law does actually write down that that is the test and it adds another test, of course - we used it in the case of Adams from the Sein Fenn organisation - if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character.
Asked by Mr Robertson what power he had to overturn the Tribunal's decision and whether he could ask for a report or appeal, the Minister answered:
"I'm considering what steps I can take and there are some avenues. One of the suggestions that's been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential cost might be to the community if it opens up a whole host of other possible appeals to the Federal Court."
On 15 April 1997 a "protective" appeal was lodged by the Minister with the Federal Court against the decision of the AAT.
On 23 April 1997 the Assistant Secretary of the Department's Migration and Temporary Entry Branch, Mr Rizvi, sent a minute to the Minister setting out options for action following the AAT decision about Mr Jia. Options put to the Minister were:
1. To further appeal to the Federal court on matters of law; or
2. To proceed to visa grant but for you then to decide to intervene and personally cancel the visa under section 501 of the Migration Act on the basis that Mr Jia is not of good character; or
3. To accept the AAT's decision and finalise the assessment of Mr Jia's application.
In further discussion of the options and in particular the option of granting the visa and then cancelling it, the minute said:
"In any litigation arising from decisions by you to cancel Mr Jia's visa and to declare him an excluded person, you could be called to give evidence and be subject of close scrutiny. You could well be called upon to give evidence about your views as to Mr Jia's character and be subject to cross-examination about the justification of your decisions and to rebut any possibility of grounds of bias or improper purpose being made out."
Mr Rizvi concluded in his advice to the Minister that a decision to cancel the visa and declare Mr Jia to be an excluded person would indicate to the community the government's concern about the acceptability of the Tribunal decision in the national interest and reflect its determination that a non-citizen with a history of criminal conduct and an apparent disregard for the law, as in Mr Jia's case, should not remain in Australia. Mr Rizvi added:
"However, this course of action would most likely lead to prominent litigation against the Commonwealth involving yourself personally, with a real risk that the Commonwealth would lose."
On 23 May Mr Jia was granted a Transitional (Permanent) Visa. The Minister had also instructed Mr Rizvi to prepare a letter to Mr Jia indicating that he wished to personally consider the matter of visa cancellation and the making of a declaration under s 502 of the Migration Act and providing Mr Jia with an opportunity to make a submission in that regard. In the letter dated 26 May 1997 and signed by Roger Neilson, the Director of the Health and Character Section of Mr Rizvi's branch, Mr Jia was advised that the Minister had indicated that he proposed to personally examine whether to cancel the visa under s 501 and declare Mr Jia an excluded person under s 502. It was pointed out that as an excluded person Mr Jia would not be able to seek review in the Administrative Appeals Tribunal of any decision of the Minister to cancel his visa.
It was said that before the Minister considered these questions he wanted to provide Mr Jia with an opportunity to comment. Matters to be taken into account by the Minister were then set out and Mr Jia was invited to comment on them and provide any information which he might consider relevant.
In the meantime the Department had prepared a pro forma letter sent to the Minister's office for possible use in responding to correspondence from members of the public concerning the Tribunal decision. Only one copy of that letter was actually sent to anyone. In it the Minister acknowledged his correspondent's concern and that of others that non-citizens who are convicted "of the kind of offences as in this case" should not be permitted to remain in Australia. He said:
"The decision made by the AAT was under the "character" provisions of the Migration Act 1958. In line with the Government's commitment during the 1996 Federal election, I am currently pursuing measures which will significantly enhance decision-making to refuse and to cancel visas on character grounds, and to ensure more effective use is made of information provided to the Department of Immigration and Multicultural Affairs by law enforcement agencies. I will be reviewing the role of the AAT in this area."
The Minister also referred to the fact that he had asked the Joint Standing Committee on Migration to enquire into the effectiveness of the current legislation policy and procedures "to remove these people from Australia", the latter being a reference to non-citizens who during their first ten years of permanent residence in this country are sentenced to a term of imprisonment for twelve months or more.
On 30 April the Minister had sent to Justice Jane Mathews, President of the Administrative Appeals Tribunal, a letter in which he expressed concern about a number of decisions of the Tribunal on criminal deportation matters. He asserted, inter alia, that while the number of cases overturned by the AAT were not large, they were sensitive and significant in that they:
1. Set standards of decision-making by other Tribunal members and officers.
2. Undermined the confidence of the community.
3. Were against the Government's requirements for which the Minister was responsible and accountable to parliament.
4. Appeared to indicate a tendency to afford greater weight to the interests of
individuals and their families relative to the seriousness of the offence.
5. Raised the question of what arrangements need to be considered by the Minister so that he could intervene where the government's requirements were being undermined.
Referring specifically to the decision with respect to Mr Jia, he said that the Tribunal member appeared to have confused the fact that decisions made under s 501 would involve a two step consideration. The first was to determine whether the person is or is not of good character. If determined not to be of good character, the second question is whether to exercise the discretion to refuse to grant (or cancel) the visa. He went on:
"That persons such as Mr Jia can be found to be of "good character", despite his recent conviction for a serious crime undermine the Government's ability to control entry into Australia on character grounds. I am concerned that this may set a precedent for decisions by the AAT in the future. To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations. Although I recognise that AAT decisions are not precedential, as a matter of law, such decisions may be viewed by the Tribunal and officers in determining the character requirements under s 501 as the acceptable standard. It would undermine the Government's desire to protect the Australian community. "
He then referred to another case and then went on:
"The significance of these two cases is that they show that the AAT has on occasion misconstrued the tests involved in character decisions. They also illustrate, to my mind, a tendency on the part of the Tribunal to afford greater weight to the interests of the individual and their family than to the protection of the Australian community and the integrity of Australia's entry programs."
While acknowledging that the AAT is an independent tribunal he said it was difficult to maintain public confidence in the government's ability to control entry into Australia in the face of decisions like that taken in Mr Jia's case. The seriousness of the crime did not appear to have been given sufficient weight in the Tribunal's deliberations. Where the courts had determined that a substantial period of imprisonment was appropriate for the crime committed, the seriousness of the crime was "a primary consideration". He concluded:
"The community's expectations of the Government to prevent entry or remove or deport will not be met if the Tribunal overturns the Government's decisions in relation to those who are not of good character or have committed serious crimes. The recent decisions of non-citizens convicted of serious criminal offences who have had their deportation orders overturned, as well as decisions to overturn the refusal of visas on character grounds, have heightened community concerns especially where a number of these have re-offended. The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia."
On 27 May the Minister discontinued the appeal to the Federal Court. On 4 June the Department received a letter from Mr Jia's solicitor warning that any decision to cancel his visa on grounds which had already been considered by the Administrative Appeals Tribunal would give grounds for an application for review in the Federal Court under s 476 of the Migration Act.
On the same date, Mr Jia wrote to the Department arguing against cancellation of his visa.
On 6 June Mr Rizvi sent a minute to the Minister. The minute was to submit for the Minister's consideration:
". the question whether you are satisfied that Mr Jia is not of good character, and if you so decide, the question of whether you wish in the exercise of the discretion under s 501, to cancel Mr Jia's permanent visa;
. if you intend to cancel Mr Jia's permanent visa, the question whether you wish to exercise the discretion under s 502 to declare Mr Jia to be an excluded person."
The minute then outlined the background facts of Mr Jia's history including the convictions and his unsuccessful appeal. It quoted the appeal court's comment that the sentence imposed for the rape conviction was "a very moderate sentence" and that the sentences imposed for the other convictions were also "moderate". It outlined the matters which had been put in material submitted by Legal Aid WA on behalf of Mr Jia and by Mr Jia himself. This list of matters appeared to be comprehensive. The AAT's reasons for decision on 26 July 1996 and 14 April 1997 were an attachment to the minute. The minute noted that in relation to his past criminal record the following comment was made:
"Mr Jia was sentenced to 6 1/2 years imprisonment following his conviction on several charges involving offences against the person. The convictions and sentences imposed were upheld on appeal;
- these offences which occurred several weeks after he had been released from immigration custody, were found by the AAT to have been committed in mitigating circumstances and to have been out of character;
- however, related argument was unsuccessfully presented to the WA Court of Appeal which upheld the convictions and the sentences imposed by the WA Supreme Court."
It should be noted that the reference to "related argument" being unsuccessfully presented to the WA Court of Appeal may be based upon a misconception of the function of the Court of Criminal Appeal in an appeal against a jury verdict. The role of the AAT, as was made explicit in its reasons, was not to decide whether Mr Jia had been rightly convicted but rather whether the circumstances of his conviction indicated that he was a person who was not of good character for the purposes of the Migration Act 1958 and the relevant regulations.
The minute referred also to Mr Jia's disregard for the law as reflected in his criminal record in the convictions (subject to guilty pleas) for having worked in Australia without authority and for having used another person's tax file number. It is difficult to relate this position taken in the departmental minute to the Minister, with the position taken on behalf of the Minister before the AAT where the convictions relating to illegal work and the use of a false name were not advanced as factors relevant to good character. And yet emphasis was placed upon these matters again in the submission to the Minister where he was invited to consider that the offence of working without authority was "a premeditated breach of a condition of his release from immigration custody and in direct defiance not only of counselling by departmental officers with the assistance of an interpreter prior to his release that he was not to do so, but also of an undertaking by him that he would abide by that and other conditions". Mr Rizvi however also invited the Minister in exercising his discretion whether to cancel Mr Jia's visa, to take into account that he had formed a substantial relationship with several Australian citizens and that his departure upon cancellation of the visa would adversely impact on them. It noted that the AAT had twice found him to be of good character and to meet the requirements of a Transitional (Permanent) Visa and that he had received strong and continuing support from Australian citizens and residents who know him. It also said that he would experience "loss of face and some hardship" if required to depart Australia if the Minister were to cancel his permanent visa.
At paragraph 18 of the minute it was said:
"If you are satisfied that Mr Jia is not of good character you must then decide whether to cancel his visa. It remains open to you to decide one way or the other after balancing the various factors to Mr Jia's advantage (including any compelling or compassionate circumstances) and disadvantage."
The minute then went on to consider the possibility of a ministerial declaration under s 502 that Mr Jia should be an excluded person. It referred to circumstances reflecting the apparent contempt and disregard by Mr Jia "not only for the immigration, and taxation laws which involve core national government functions, but also for the criminal law of WA (which is reflected in laws of other states and territories)".
Reference was made to the media attention which some of Mr Jia's conduct had attracted, the erosion of the reputation and the regard in the community for law abiding non-citizens who are here as either permanent or temporary residents and the adverse impact upon Australia's social cohesion. The minute suggested:
"- he has presented as an exemplar for others to denigrate non-Australian born persons who are an important and valued part of the fabric of the Australian community and to foment attitudes and behaviour which are not in the national interest;
- you might agree that the circumstances of Mr Jia's conduct undermines significantly the extent of community acceptance and tolerance of Australia's visa policies and programs."
Again the minute made reference to the support Mr Jia has from Australian citizens and residents and other positive claims made by him and on his behaviour in the attached papers.
While the minute leaned in favour of cancellation of the visa and the making of a declaration under s 502, the recommendation to the Minister was in the following terms:
"That you:
(a) determine whether for the purposes of exercising the power to cancel a visa under s 501 of the Act, that Mr Jia is or is not of good character;
(b) determine whether, if you decide he is not of good character, to exercise the discretion under s 501 to cancel or not to cancel Mr Jia's visa;
(c) determine whether the circumstances leading to a decision to cancel his visa are so serious that it is in the national interest that Mr Jia be declared to be an excluded person under s 502; and
(d) sign a certificate (at Attachment D) declaring Mr Jia to be an excluded person, if you decide to cancel Mr Jia's visa and declare him to be an excluded person."
The Minister's decision dated 10 June 1997 was endorsed on an attachment to the minute. It was to the effect that Mr Jia is not of good character, that the discretion to cancel his visa would be exercised, that he was to be declared an excluded person and that a certificate to that effect would be signed.
On 16 June 1997 the current proceedings were instituted in this Court.
The Application for Review
Mr Jia's application was for an order for review pursuant to s 476 of the Migration Act. The application was amended by leave on 29 January 1998. The grounds of the application are as follows:
"(a) Both of the said Decisions were induced or affected by the bias held by the Respondent towards the Applicant.
(b) The Decision to cancel the Applicant's residence visa was an improper exercise of the power conferred on the Respondent by the Migration Act in that the Respondent exercised a discretionary power in accordance with a rule or policy of the Respondent (namely that the criminal convictions against the Applicant meant that he could not be "of good character") without regard to the merits of the Applicant's case.
(c) The Decision to cancel the Applicant's residence visa involved an error of law as to the meaning of "good character" as used in Section 501(2) of the Migration Act.
(d) The decision to declare the Applicant to be an excluded person involved errors of law as to the meaning of:
(i) "the seriousness of the circumstances" and
(ii) "in the national interest"
as used in Section 502(1(b) of the Migration Act.
(e) The Decisions were not authorised by the enactment in pursuance of which they were purported to be made, namely Sections 501 and 502 of the Migration Act, in the circumstances where the Administrative Appeals Tribunal, on the same facts and circumstances, had already determined, by its decision of 14 March 1997, the issue of the Applicant's character, which decision was binding on the Respondent.
(f) The Decisions involved errors of law in that the Respondent departed from the decision of the Administrative Appeals Tribunal dated 14 March 1997, which decision was binding on the Respondent.
(g) The Decisions were an improper exercise of the power conferred by Sections 501 and 502 of the Migration Act, in that the Respondent exercised such power for a purpose other than a purpose for which the power was conferred, in that the Decisions were designed to overturn the decision of the Administrative Appeals Tribunal dated 14 March 1997.
(h) The Decisions were otherwise contrary to law."
Mr Jia's counsel did not proceed with ground (f) and did not separately argue ground (h).
Statutory Framework
It is not in dispute that the Minister's decisions to cancel the applicant's visa under s 501 and to declare the applicant to be an excluded person under s 502 are judicially reviewable decisions within the meaning of s 475 of the Act. The relevant provisions of s 476 setting out the grounds for review of such decisions are as follows:
"476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
.
.
.
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involving an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b) an exercise of a personal discretionary power at the direction or behest of another person; and
(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d) taking an irrelevant consideration into account in the exercise of a power; or
(e) failing to take a relevant consideration into account in the exercise of a power; or
(f) an exercise of a discretionary power in bad faith; or
(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)."
Subsection (4) is not relevant for present purposes.
The provisions under which the Minister made the decisions under review in the present case were ss 501 and 502 of the Migration Act and it is convenient to set them out in full here:
"501(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a) subsection (2) applies to the person; or
(b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i) be likely to engage in criminal conduct in Australia; or
(ii) vilify a segment of the Australian community; or
(iii) incite discord in the Australian community or in a segment of that community; or
(iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2) This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
502(1) If:
(a) the Minister, acting personally, intends to make a decision:
(i) under section 200 because of circumstances specified in section 201; or
(ii) under section 501; or
(iii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
in relation to a person; and
(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;
the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.
(2) A decision under subsection (1) must be taken by the Minister personally.
(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made."
Actual Bias
The ground of review relating to bias requires an applicant to show that the decision in question "was induced or affected by fraud or actual bias". These words are to be construed by reference to their ordinary meaning. That meaning is not to be extended by the common law rules of natural justice as their application is expressly excluded by s 476(2)(a). In particular, that rule which would vitiate a decision on the grounds of reasonable apprehension of bias is inapplicable. What must be demonstrated is actual bias. The word "actual" in my opinion in this collocation does not limit or qualify the meaning of bias but rather emphasises the exclusion of apprehension of bias as a ground of review.
The range of ordinary English meanings of "bias" relevant for present purposes as defined in the New Shorter Oxford English Dictionary is:
"An inclination, a propensity, a predisposition (towards); prejudice"
Judicial review at common law generally protects the subject against unlawful, unfair or irrational decision making. It seeks to rectify what might be called dysfunctional decision making. "Actual bias" within the meaning of s 476 must be dysfunctional in the sense that it induces or affects the decision. It must be a pre-existing state of mind which disables the decision maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made. This analysis does not offer bias as a basis for admitting as a ground of review what the act expressly excludes, namely consideration of irrelevant factors or failure to consider relevant factors. The emphasis is upon a state of mind which affects decision making rather than elements of the process of decision making taken in isolation.
Actual bias may arise from awareness of some but not all of the circumstances of the case in point. It may be based upon circumstances which are relevant or irrelevant. If, for example, a decision-maker were predisposed against the subject of the decision because of his or her ethnic background or gender to the extent that he could not bring his mind to a proper consideration of the full range of circumstances relevant to the decision, that would be actual bias affecting the decision. It might also amount to racial or gender prejudice. But such prejudice is merely a particular case of bias.
Equally, the decision-maker's awareness of a relevant factor before he considers all the circumstances might so affect his mind that he could not or would not properly consider or evaluate those circumstances. If the fact of Mr Jia's conviction of criminal offences could be shown to have so affected the Minister's mind that he could not properly consider or evaluate the circumstances of those offences and other factors relevant to his decision, then actual bias affecting the decision would be demonstrated even though based upon factors relevant to it.
This approach to the concept of "actual bias" nevertheless permits the decision-maker to form a strong inclination or predisposition to a particular outcome on the basis of a partial knowledge of the relevant facts. That is provided the decision-maker is not thereby disabled from considering or unwilling to consider all relevant circumstances in coming to a decision.
The emphasis in this approach is not upon appearance or process but proper decision making.
There are other verbal formulae adopted in the cases to like effect. Some of these were reviewed by the Full Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 151 ALR 505. Wilcox J at 551 referred to the observation of North J in Wannakuwattewau v Minister for Immigration and Ethnic Affairs (Fed C of A, North J, 24 June 1996 unrep) that s 476(1)(f) requires an applicant to show "that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case". Wilcox J referred also to the approach adopted by Lockhart J in Sing v Minister for Immigration and Ethnic Affairs (Fed C of A, Lockhart J, 18 October 1996 unrep) where three points were made:
1. The fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration.
2. Any particular matter relied on as showing actual bias must be considered in the context of the whole hearing.
3. It is not enough that a decision-maker displays irritation or impatience or even uses sarcasm.
Burchett J in Sun Ahan Qui at 555 observed that:
"Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. On this basis, the appellant relies on various aspects of the tribunal's decision as explicable only, or at least most naturally, by bias. When the court examines the material bearing on this issue, I think it should interpret the words of s 476(1)(f) in their natural sense. The use of the word "actual" strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law.
.
.
.
In my opinion, the statute, when it used Devlin LJ's expression "actual bias", substituted a test that looks to whether the tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say "at least in some respect" because the statute extends to the situation where "the decision was ... affected ... by actual bias". The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, [Bilgin v Minister of Immigration and Ethnic Affairs (Fed C of A, Finkelstein J, 6 October 1997, unrep)] with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach."
And at 562 North J said:
"Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant... The courts have rarely found actual bias to exist. That is principally, because at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias."
Counsel for Mr Jia submitted that in the present case "an overwhelming inference of bias" can be drawn from the following matters:
(a) The appeals pursued by the Minister in the Federal Court against the successive decisions of the Administrative Appeals Tribunal which appeals in each case included the ground that the Tribunal's decision was so unreasonable that no reasonable decision-maker could reach such a decision.
(b) The Minister's personal and public criticism of the Administrative Appeals Tribunal in relation to its decision concerning Mr Jia on radio on 14 April 1997.
(c) The Minister's personal involvement in the decision to proceed with a course of action which involved granting and then cancelling Mr Jia's visa.
(d) The Minister's clearly expressed (but mistaken) view of the law that Mr Jia having been convicted of a serious crime and imprisoned could not be a person of good character.
(e) The Minister's criticism of the Administrative Appeals Tribunal's decision in his letter to Justice Mathews dated 30 April 1997.
(f) The Minister's decision to exercise the power given under s 502 to declare Mr Jia an excluded person.
(g) The failure of the Minister to give any personal evidence to this Court as to his state of mind.
In my opinion the evidence points to the Minister having formed, on the basis of Mr Jia's convictions and sentence, a view strongly adverse to the conclusion that he could be described as a person of good character.
The convictions upon which that view was based were plainly relevant to the decision to cancel the visa. The Minister was entitled and, in my opinion, obliged to have regard to Mr Jia's past criminal conduct in determining whether he was satisfied that Mr Jia was a person not of good character. He was entitled, and I would think, obliged to have regard to other factors relevant to the question whether Mr Jia was a person of good character. And having decided he was not a person of good character, he had a discretion whether or not to cancel the visa granted to Mr Jia. It would be appropriate in the exercise of that discretion to have regard to the full range of relevant circumstances. Whether or not he was bound to have regard to any particular circumstance is not to the point. The question is whether by his mental state he was disabled from or unwilling to have regard to other relevant circumstances.
The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.
The Minister's case may not have been helped by his public discussion of Mr Jia's case on radio in a way that exposed his views adverse to Mr Jia. For the hypothesis is then open that having taken a public position on what is undoubtedly a politically sensitive case the Minister would find it difficult to appear to resile from that position. On the other hand, he did leave himself an escape route in the radio interview referring as he did to the need to "weigh up" whether it was proper for him to adopt the procedure of granting the visa and then cancelling it on character grounds. Moreover, the Minister is an elected official, accountable to the public and the parliament and entitled to be forthright and open about the administration of his portfolio which, it is common knowledge, is a matter of continuing public interest and debate.
The Department had provided the Minister with a comprehensive minute in advance of his decision which drew attention to factors both adverse and favourable to Mr Jia.
The Minister's criticism of the Administrative Appeals Tribunal related not just to the Jia case but was placed in a wider context of concern about his perception of a trend in Tribunal decision-making. He was entitled to make those observations and to draw them to the attention of the Tribunal President. In assessing the standards of behaviour required of the Minister it is important to bear in mind that he is not acting as a judge or tribunal but as an administrative decision-maker implementing government policy.
While it is clear that the Minister had strong views about Mr Jia's case, I am not satisfied that those views precluded him from the consideration of all the relevant circumstances so as to constitute actual bias inducing or affecting the decision within the meaning of s 476(1)(f).
Improper Exercise of Power
It is contended for Mr Jia that the Minister exercised his discretionary power to cancel the visa in accordance with a rule or policy that the criminal convictions against Mr Jia meant that he could not be of "good character" without regard to the merits of his case. This reflects the provisions of paragraph 476(3)(c) of the Migration Act which provides that an improper exercise of power as a ground of review in s 476(1)(d) includes "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case".
In the event little or no argument was addressed to this ground. It seemed really to be a way of advancing an argument that the Minister erroneously applied an unduly narrow view of what constituted "good character" under s 501 by holding that its existence was negatived upon conviction for serious criminal offences.
In any event, as counsel for the Minister pointed out, there is no basis for suggesting that the Minister made his decision to cancel the visa on the basis of the alleged policy without regard to the merits of his case. As was submitted, it is unlikely that the Minister failed to have regard to the merits of the case in circumstances where there had been a decision of the Tribunal that Mr Jia was a person of good character and where the Minister had specifically invited Mr Jia to make comments and provide information in relation to his proposal to consider personally whether or not the Transitional (Permanent) Visa should be cancelled pursuant to s 501 of the Migration Act and whether Mr Jia should be declared to be an excluded person pursuant to s 502 of the Act. The proposition is further undermined by the submission to the Minister of 6 June 1997 which reviews the issues advanced by Mr Jia and his solicitors and sets out various factors in Mr Jia's favour as well as those adverse to him.
The Department's Procedures Advice Manual provides at paragraph 8.5.2 that:
"In the absence of special circumstances, a person would normally as a matter of policy, be taken to be not of good character because of their past criminal conduct if the person:
(a) has at any time been convicted of a crime and sentenced to death, or to imprisonment for life or to a period of not less than one year; or
......"
As a statement of policy that is really not exceptionable. It raises a presumption which is reasonable against the character of a person who has been convicted of a serious crime but allows for departure from that conclusion by reference to "special circumstances" and the fact that such a person would "normally" be taken to be not of good character.
In my opinion the allegation that the decision to cancel the visa was an improper exercise of power made in accordance with a rule or policy without regard to the merits of Mr Jia's case fails.
Error of Law - Meaning of "Good Character"
Counsel for Mr Jia submitted that the term "good character" in s 501 refers to the enduring moral qualities of a person and can change over time. The circumstances surrounding the commission of offences and the individual's general conduct both prior to and subsequent to the offences are relevant in determining the issue of character which is to be assessed at the time the decision was made. Assessment of a person's good character involves assessment of the enduring moral qualities of that person - Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94 (Lee J) approved in Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 143.
Mr Rizvi's submission to the Minister of 6 June 1997 referred to Mr Jia's "moral qualities" and his "true character". It is true that the Minister made a statement in his radio interview with Clive Robertson on 14 April 1997 to the effect that:
"I don't believe you are of good character if you've committed significant criminal offences involving penal servitude. The law does actually write down that this is the test...."
If that be a misstatement of the law the making of an erroneous statement in the course of a radio interview is not, in my opinion to be given any particular weight in inferring that the Minister's acted upon an erroneous view in making the decision to cancel a visa particularly having regard to the direction and assistance he received from the Departmental minute. In my opinion this ground fails.
Error of Law - Section 502 Seriousness of Circumstances and National Interest
In arriving at a decision to cancel a protection visa if the Minister decides that because of the seriousness of the circumstances giving rise to the making of that decision it is in the national interest that the person be declared an excluded person, the Minister may include a certificate so declaring. It was submitted for Mr Jia that these words in the subsection are intended to place a restriction on the general exercise of the power to exclude a person. Moreover it is said the Court should narrowly construe any power involving a restriction of liberty or reduction of civil rights which includes a power removing from the individual the normal right of independent merit review granted under s 500. It was said to be probable that s 502 was intended to meet a situation where the Minister or his department had information not available to be presented to the Tribunal in circumstances where the safety of the Australian community was at stake. The seriousness of the circumstances cannot have been intended to refer to a situation where there is merely a dispute between the Minister and the Tribunal as to whether a particular applicant meets the character test.
Counsel for the Minister pointed out that Mr Rizvi's submission of 6 June 1997 considered the possibility of a decision under s 502 of the Migration Act and set out a number of matters which, it was said, the Minister might consider in relation to that question. These were:
1. The material which the Minister had already read in relation to his decision under s 501.
2. The apparent contempt and disregard by Mr Jia for immigration and taxation laws which involved core national government functions and the criminal law of Western Australia.
3. The adverse impact upon Australia's social cohesion.
4. The exploitation and breach of trust of the Australian government.
5. The community's perception of the government's attitude to a person such as the applicant if he did not exercise the sanctions which Parliament had provided.
6. The interests of social justice.
7. The violation of the rights and security of a woman and the protection to which she is entitled under Australian law.
The seriousness of circumstances giving rise to the making of a decision under s 501 of the Migration Act is a matter peculiarly for assessment by the Minister. So too, is the question of national interest. It is of significance that in this case one aspect of the seriousness of the circumstances and national interest was community perception of governmental policy and its impact on attitudes to other non-citizens and general considerations of social cohesion. In my opinion this was plainly a matter for the Minister to assess and there is nothing on the materials to indicate that he strayed beyond the proper limits of that assessment.
The Decisions Were Not Authorised or Alternatively Were Improper Exercises of Power
The two grounds under this heading are grounds 3(e) and 3(g) of the amended application. In relation to the first of those grounds it was submitted for Mr Jia that the Administrative Appeals Tribunal decision of 14 March 1997 that he met the character requirements for the grant of a resident's visa and the respondent's decision of 10 June 1997 to cancel that visa were made on the same facts. As a matter of fact that proposition was not in dispute. However, the next step in the argument for Mr Jia was contentious and that is that s 501 of the Act did not authorise the Minister to cancel Mr Jia's resident's visa in circumstances where the Administrative Appeals Tribunal had made a decision on the same facts which decision was binding on the Minister and his delegates.
The question of the authority of the Minister to cancel a visa under s 501 and make an exclusion order under s 502 where the matter had been before the Administrative Appeals Tribunal and had there been decided favourably to the applicant, was considered by Sackville J in Gunner v Minister for Immigration and Multicultural Affairs (Fed C of A, 19 December 1997, Sackville J, unrep). His Honour accepted that a number of considerations suggest that ss 501 and 502 are framed broadly enough to authorise the Minister acting personally to cancel a visa and to declare the former visa holder to be an excluded person notwithstanding that the Administrative Appeals Tribunal has determined on the same facts and circumstances considered by the Minister that the person should not be deported under s 200 by reason of criminal convictions in Australia. The considerations referred to by his Honour in summary are:
1. Neither ss 501 nor 502 expressly limit the Minister's power in this respect.
2. Relevantly to the case before Sackville J the statutory powers under consideration by the Administrative Appeals Tribunal reviewing a decision to deport differ from those exercised by the Minister under ss 501 and 502.
3. The exercise of the powers under ss 501 and 502 is not limited by prior review by the Administrative Appeals Tribunal of a deportation order provided the Minister did not act on the basis of the same facts and circumstances as were before the Administrative Appeals Tribunal.
4. It is open to the Minister to bypass the Administrative Appeals Tribunal by making a cancellation and exclusion order where there has been no deportation action under s 200. That being so, it is arguable there is no reason why he should not be able to reach a different conclusion to the Administrative Appeals Tribunal where it has set aside a deportation order.
5. The power under s 502 is of an exceptional character but it has safeguards built in to prevent possible abuse.
On the other hand, Sackville J considered as a countervailing factor, the binding nature of Administrative Appeals Tribunal determinations and the serious and perhaps profound consequences of deportation for the person concerned. By enabling the Minister to make a determination in the national interest that a person is an excluded person, admittedly creates an exception to the general system of merit review. But as to this his Honour said:
"... scrupulous care should be exercised in construing an exception or qualification to a safeguard of such acknowledged importance as the right of merit review by the AAT."
His Honour concluded:
"In my view, it is one thing to read ss 501 and 502 as authorising the Minister, acting personally, to cancel a person's visas and preclude review of that decision by the AAT, where no previous decision has been made by the AAT or where any such decision has been based on different facts and circumstances. It is quite another to construe the section as authorising the Minister, acting personally, to take the same action on the basis of the same facts and circumstances that caused the AAT to set aside a deportation order against the applicant. In effect, the Minister has decided to overturn a decision of the AAT which had overturned an earlier decision made by the Minister's delegate. In my view, having regard to the statutory context and to the "scrupulous care" with which ss 501 and 502 should be read, the legislation was not intended to confer on the Minister power to set at nought a determination by the AAT simply because the Minister takes a different view of the material considered by the AAT: cf Lynch v Minister for Human Services and Health (1995) 61 FCR 515 (FCA/FC), at 527-528 per Moore J. Whether the Minister's view of the merits is or is not reasonable is not the point. It is that clearer language is required before ss 501 and 502 should be read as authorising such a result.
In reaching this conclusion I have not overlooked the objectives of the provisions introduced into the Migration Act in 1992. These include protecting the Australian community against persons who constitute a danger or threat by reason of past criminal conduct. But it is necessary to take into account other considerations in construing the relevant provisions, including Parliament's recognition of the importance of review by the AAT of deportation decisions based on criminal conduct, including the AAT's power to substitute its own decision in a particular case for that of the Minister." (34-35)
His Honour's decision is subject to an appeal to the Full Court which is listed for hearing today. It is important, however, that the first instance disposition of this application not be delayed pending the outcome of the proceedings in the Full Court. There are a number of other grounds which have required consideration and no doubt the ultimate fate of these proceedings will depend upon the Full Court's decision in Gunner or an appeal to the Full Court in this case.
As to the merits of the point taken about the limitation on the Minister's power where the AAT has made a decision favourable to the applicant on the same facts and circumstances, I respectfully disagree with Sackville J. There is no express limitation upon the exercise of the Minister's powers under ss 501 and 502 where the AAT has made a decision favourable to the grant of a visa on the same facts and circumstances. To imply such a limitation where Parliament has not expressed it, is a serious matter. In my opinion that highly specific limiting implication is not visited upon the combined exercise of the powers under ss 501 and 502 by the general system of merits review through the AAT for which the Act otherwise provides.
It is notable as counsel for the Minister submitted that a decision to cancel a visa under s 501 would not, unlike s 502, exclude merits review. To that extent the argument for the proposed limiting implication on the combined exercise of the powers under ss 501 and 502 is undermined.
There are important considerations of a more general character, however, which militate against the view adopted in Gunner. The Administrative Appeals Tribunal is not a court. It is an administrative decision-maker and is part of the continuum of administrative decision-making under the Migration Act and a number of other Commonwealth Acts in respect of which merits review is available. It binds the Minister in the limited sense that the Act authorises the Administrative Appeals Tribunal to substitute its own decision for that of the Minister or his delegate in those cases which are susceptible of merits review.
Section 502 is a special provision which confers a special power to be exercised by the Minister personally and in respect of which the Minister is accountable to Parliament under s 502(3). The criteria for the exercise of the power include reference to the seriousness of the circumstances which give rise to the making of the primary decision that triggers the exercise of the discretion under s 502 and the national interest. The consideration of the national interest is a matter peculiarly within the province of a Minister of the crown responsible to the Parliament. It is this character of the power under s 502 as well as the exclusion of Administrative Appeals Tribunal review in relation to its exercise, that lifts the power beyond the reach of the legislative scheme of merits review. In my opinion there is no limiting implication of the kind for which counsel for Mr Jia contends in this case.
I should perhaps also add that the formulation of the limiting implication by reference to a decision taken on the basis of the same facts and circumstances as were before the Administrative Appeals Tribunal is an implication that may prove in practice to be of considerable difficulty in its application. In the present case it was not disputed that the Minister's decision rested upon the same facts and circumstances. However it is not clear to me in respect of s 502 that the concession, if it be one, was properly made. The national interest considerations to which the Minister must have regard under s 502 may raise issues of a policy character which transcend the circumstances of the individual case. Some of these considerations can be seen referred to in the minute prepared for the Minister by Mr Rizvi. In particular the significance of the case for public acceptance of Australia's immigration program is a matter which is beyond the scope of the AAT review and peculiarly within the province of the Minister.
Improper Exercise of Power
The final ground of review relied upon by Mr Jia was that the Minister's decisions were an improper exercise of the power conferred by ss 501 and 502 in that he exercised those powers to overturn the decision of the Administrative Appeals Tribunal.
Once it is accepted that the exercise of the Minister's powers under ss 501 and 502 is not limited in the way contended for by the fact of a prior Administrative Appeals Tribunal decision on the refusal of a visa, the consequence that the Minister's decision might have that effect and that it was designed to have that effect does not amount to an improper exercise of the power. This ground therefore also fails.
Conclusion
For the reasons which I have given, in my opinion, the application must be dismissed with costs.
|
I certify that this and the preceding thirty seven (37) pages are a true copy of the Reasons for Judgment herein of the Honourable
Justice French |
Associate:
Dated: 1 July 1998
|
Counsel for the Applicant: | Mr H.N.H. Christie |
| Solicitor for the Applicant: | Legal Aid WA |
| Counsel for the Respondent: | Mr R.R. S. Tracey QC with Mr P.R. Macliver |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 22 June 1998 |
| Date of Judgment: | 1 July 1998 |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/1998/768.html