Vaitaiki v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 114 (28 February 2003)

Last Updated: 28 February 2003

FEDERAL COURT OF AUSTRALIA

Vaitaiki v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 114

IMMIGRATION - Administrative Appeals Tribunal - whether decision affirming the decision of a delegate of the Minister refusing application for a Short Stay Medical visa is a "privative clause decision" within s 474 of the Act

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Migration Act 1958 (Cth) s 200, 234, 474, 483, 499(2), 500(GH), 500(GJ), 500(1)(b), 501, 501(6)(c), 501(7)

Judiciary Act 1903 (Cth) s 39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2 referred to

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 applied

TEVITA VAITAIKI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1276 OF 2002

HELY J

28 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1276 OF 2002

BETWEEN:	TEVITA VAITAIKI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	28 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1276 OF 2002

BETWEEN:	TEVITA VAITAIKI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	28 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is or purports to be an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of Deputy President Block which affirmed a decision of the Minister's delegate to refuse an application by the applicant for a Medical Treatment (Temporary) Short Stay (Class 675) visa ("the medical visa"). The matter came before the Administrative Appeals Tribunal ("the AAT") under s 500(1)(b) of the Migration Act 1958 (Cth) ("the Act").

2 The application was refused by the Minister's delegate under s 501 of the Act on the grounds that the applicant has a substantial criminal record (s 501(7)) and on the ground that the applicant is not a person of good character (s 501(6)(c)).

Background

3 The applicant is a citizen of Tonga. He first entered Australia in December 1976 on a one month entry permit, which he overstayed. On 1 April 1978 he was deported to Tonga.

4 In June 1978 the applicant returned to Australia under an assumed name. On 11 January 1994 the Minister ordered the deportation of the applicant under s 200 of the Act, based upon the applicant's conviction on a charge of serious sexual assault of a female, for which he was sentenced to a minimum term of imprisonment of three years and three months.

5 This order was not executed until 12 January 2000. The reason for the delay is explained in some detail in the AAT's reasons. For present purposes it is sufficient to say that the delay was largely attributable to challenges which the applicant mounted to the deportation order.

6 The applicant married on a number of occasions whilst he was in Australia. He has seven children of those marriages whose ages, at the time of the AAT hearing, ranged from 3 to 17 years.

7 A consequence of the applicant having been deported from Australia was that he was prohibited from applying outside of Australia for a visa of any kind for which he might conceivably have been eligible. The AAT found that the applicant knew, at least from 1997 onwards, that he was so prohibited.

8 In 2001, in Tonga, the applicant changed his name to Tevita Musie. The applicant "corrected" his family surname by dropping "Vaitaiki" from it. Under Tongan law this change of name appears to have been perfectly lawful, and the applicant obtained a Tongan passport in his changed name. Whilst the AAT referred to the changed name as an "assumed" name, it is clear from the terms of its decision that the AAT was aware of the change of name in Tonga, and that the new name was not assumed in the sense that it was in terms false.

9 However, the AAT found that the name change was the first step in a scheme designed to get the applicant back into Australia, and it was in this sense that the changed name was "assumed".

10 On 25 October 2001 the applicant arrived in Australia on a transit visa in the name of Tevita Musie for the ostensible purpose of transiting to the USA. The applicant abandoned his journey in Sydney, and claimed an inability to travel to Honolulu due to ill health. The evidence before the Tribunal revealed that the applicant claimed to be suffering from a heart condition.

11 On 26 October 2001 the applicant applied for the medical visa in his changed name. In his application for the medical visa the applicant answered a number of questions untruthfully, including questions as to whether he had ever been convicted of any crime, and whether he had ever been excluded from or asked to leave any country. It is an offence under s 234 of the Act to make knowingly false or misleading statements to an immigration officer in connection with entry into Australia or with an application for a visa.

12 The Department received some information that the applicant had returned to Australia under a different name, as a result of which he was detained on 1 November 2001. At the time of his detention the applicant produced the Tongan passport in the name of Tevita Musie, and upon questioning, he denied his immigration history. The applicant was incarcerated in Silverwater Correctional Centre, until he was transferred to Villawood Detention Centre on 6 February 2002, where he has remained ever since.

13 In interviews with Departmental officers after his detention, the applicant stated that he had never used any name other than Tevita Musie and that he had never been convicted of any criminal offences in Australia or elsewhere.

14 Whilst the applicant was in Villawood Detention Centre he was the subject of various investigations regarding his claimed medical condition. No evidence of any cardiac condition was found by the medical officer at Villawood or disclosed by any pathology reports. On 5 August 2002 he was examined by Dr Day, a consultant physician and cardiologist, who reported that there was no evidence that the applicant had ischaemic heart disease. The nature of the chest pain of which he complained suggests that it is musculo-skeletal in origin rather than ischaemic. The AAT records that it was put to the applicant that the objective evidence all established that he does not have a heart problem, and that it was with some reluctance that he agreed that he might not. The AAT found that there is a body of medical evidence which establishes conclusively that he has no heart problem of any kind.

The AAT's decision

15 The AAT made the following finding:

"17. The untruthful statements made by the Applicant in relation to the transit visa, the medical visa and at interviews are such that they constitute breaches of section 234 of the Act. The maximum penalty prescribed for a breach of section 234 is a prison term of 10 years. The conduct of the Applicant since his unlawful return to Australia is such that when regard is had to that conduct, and also his prior criminal conduct, a finding that he fails the character test under section 501(6)(c) of the Act must be made. It is, however, unnecessary to resort to that section since the prison terms served by the Applicant have the effect that he fails the character test under section 501(6)(a) with section 501(7) of the Act."

16 There was no challenge to this finding which is demonstrably correct.

17 Having found that the applicant failed the character test, the AAT recognised that there was a residual discretion whether or not to refuse the medical visa and went on to consider how that discretion should be exercised. In doing so, the ATT had regard (as it was required by s 499(2A) to do) to Direction number 21(1) issued by the Minister under s 499(2) of the Act. Under that Direction (par 2.3) in making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the persons under consideration, the best interests of the child or children.

Each of these primary considerations is the subject of elaboration in the Ministerial Direction. It is sufficient for present purposes to say that any risk of recidivism and general deterrence are factors to be taken into account.

18 In short, the AAT considered that whilst the interests of the applicant and his family, and in particular his children, would be furthered by the applicant remaining in Australia, the interests of the Australian community pointed in the opposite direction. The interests of the family were subordinate to those of the wider Australian community, particularly having regard to the fact that the maximum duration of a medical visa is three months.

19 The AAT accepted that if the applicant did have a serious health problem, to send him back to Tonga at a time when to do so would endanger his life, would not be right. The AAT was satisfied that no such circumstances exist. It found that much of the applicant's evidence, particularly the evidence as regards his health, was untruthful. It expressed its conclusion as follows:

"The evidence before me establishes that the medical visa application was nothing more than a part of his illegal plan to get back into Australia. The Applicant is a man who has little credibility and whose behaviour has consistently been both amoral and unprincipled. I have previously found that the risk of recidivism is unacceptably high. This is quintessentially a case where the considerations which favour the Applicant, and being the primary interests of his children under 18 coupled with the hardship considerations for other members of his family (limited by the short-term nature of the visa sought) are greatly outweighed by the primary considerations against him."

The AAT agreed with the respondent's submission that if ever there were a decision which ought to be affirmed, then this is it.

The appeal to this Court

20 Section 483 of the Act provides that s 44 of the AAT Act does not apply to a privative clause decision. "Privative clause decision" is defined in s 474 of the Act in terms which are familiar. If the AAT's decision was affected by jurisdictional error, then following the judgment of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2, such a decision is not made "under" the Act, and is therefore not a privative clause decision within the meaning of s 474(2) of the Act. If, on the other hand, the applicant is unable to establish a jurisdictional error, then s 483 applies according to its terms. In such a case, s 44 of the AAT Act would not apply to the decision. The Court would still have jurisdiction under s 39B of the Judiciary Act 1903 (Cth), although any application invoking that jurisdiction would be bound to fail for want of jurisdictional error.

The applicant's submissions

21 The applicant appeared for himself, and without the benefit of legal assistance. The grounds of appeal as specified in his Notice of Appeal are as follows:

"(a) Some of my medical reports, while in Villawood went missing, and Villawood doctors never presents my whole files in my Tribunal, which vital to my case.

(b) The officer who escorted me to see (DIMA's) Dr Day witnessed the doctor fall asleep during consultation, refused to say anything because he might lost his job.

(c) Tribunal decision seem racist and inconsistent and unsafe. They protected one part off the communities, but not the interests of my childrens and families as they are all Australian and their natural justic and their human rights been denied.

(d) The Tribunal takes side with the Minister, by asking what's the DIMA's solicitors say and what to do, throughout the hearing."

22 The applicant elaborated on those grounds of appeal in a written submission dated 17 February 2003, which I have had placed with the papers.

23 In his written submissions, the applicant challenges the AAT's factual conclusions, particularly in relation to the risks of recidivism and the welfare of his children. The applicant draws attention to the hardships which have been imposed upon him by detention and makes unsubstantiated and irrelevant accusations of corruption and abuse of power on the part of unnamed Department of Immigration & Multicultural Affairs ("DIMA") officials. Save in one respect the written submissions are entirely misconceived, as they assume that the proceedings in this Court are in the nature of a merits review, and that the Court has some discretion which it can exercise to grant a medical visa, particularly having regard to the applicant's claims that he is a person who has reformed since the deportable offence was committed in 1988.

24 So far as the ground of appeal are concerned, (a) and (b) are not grounds of appeal. They are merely unsubstantiated allegations. The applicant sought an adjournment of the hearing before me in order to issue subpoenas for the persons referred to in these paragraphs to give evidence. I declined to grant that adjournment, because the application for it was based upon a misconception as to the role of the Court to which I have earlier referred.

25 Ground (c) attacks the decision of the AAT on its merits. The AAT took into account the interests of the applicant's family, and in particular the interests of his children, but decided that they were subordinate to the interests of the wider Australian community, particularly in the context of a three month visa. This is an evaluative exercise which is peculiarly a matter for the AAT to undertake. No question of law arises in relation to this ground, and no error in the approach of the AAT to the resolution of this question has been demonstrated.

26 Paragraph (d) appears to raise an issue of bias, whether actual or apparent. That same matter is raised by par 15 of the written submissions, and is the one exception to my earlier observation that those submissions address matters which are largely irrelevant and are thus misconceived. On the current state of the authorities, as I understand them, actual or apparent bias in a decision-maker results in a denial of procedural fairness, and the failure to accord a fair hearing is an error going to jurisdiction. The test for apprehended bias is that laid down by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425.

27 The applicant pointed to particular passages in the transcript as demonstrating bias. Mr Markus, for the Minister, referred to other passages in the transcript. In fairness to the applicant and at the request of Mr Markus, I considered that I should look at the whole of the transcript. My general impression, having undertaken that exercise, is that the Deputy President was at pains to ensure that the applicant understood the matters which the AAT had to determine, and gave the applicant every opportunity of putting what he wished to put in relation to those matters. It is fair to say that occasionally during the course of the hearing the Deputy President exhibited a degree of scepticism in relation to what was put to him. Particularly towards the end of the hearing, he asked some questions which exhibited a degree of impatience with the applicant and his invocation of biblical stories. I will return to the specifics of this aspect of the matter later.

28 The passages to which I was taken in the transcript can be broken down into two categories. The first category consists of passages which, in the applicant's submission, indicate that the AAT allowed itself to be influenced by the views of the Minister's solicitor, Mr Markus, such that the AAT ceased to be independent. The second category consists of passages which, in the applicant's submission, demonstrate that the AAT came to the matter with a closed mind.

29 So far as the first category is concerned, the Deputy President announced at the commencement of the hearing that it was his usual practice, where an applicant was not legally represented, to ask counsel on the other side to state what the case is all about, and what the case is that the unrepresented litigant has to meet. The Deputy President said:

"Now, I only do this, Mr Vaitaiki, with your consent and if you think it will be of assistance to you."

The applicant at least acquiesced in that course, if he did not specifically consent to it.

30 At page 70 of the transcript an issue arose as to whether a particular matter to which the applicant referred was in evidence before the AAT. The Deputy President said to Mr Markus:

"Mr Markus, I'm relying on you to tell me what is and what isn't in evidence".

The context in which that remark was made is that under s 500(GH) and (GJ) of the Act, the AAT is not to have regard to information or documents unless given to the Minister within a specified time. The AAT did not want to fall into the error of taking into account matters which, under the Act, it was not entitled to take into account, and it was perfectly reasonable for the Deputy President to seek assistance from the Minister's solicitor in this respect. Mr Markus, in offering to keep tabs on what was and what was not in evidence before the AAT was simply doing his job.

31 At page 80 of the transcript the following appears:

"THE D. PRESIDENT: But in this case, as you have told me, the interests of the children are necessarily limited by the fact that at best for him I could never give him more than three months. Now, Mr Markus, since you are plainly experienced in this area, how in your view should I regard that?

MR MARKUS: Well, I don't think you have ---

THE D. PRESIDENT: You agree with me about the character test, don't you?

MR MARKUS: Well, I would have to. I put those submissions ---

THE D. PRESIDENT: I am only putting it like that, Mr Markus, so that Mr Vaitaiki can hear."

It seems to me that the Deputy President was seeking to have said out loud matters which it might be assumed that the Deputy President was aware of, so that the applicant would be aware of the issue and would have the opportunity of responding to it.

32 At page 91 of the transcript the Deputy President raised the issue of recidivism. He invited Mr Markus to put a percentage on it, and Mr Markus properly and sensibly declined to do so. The Deputy President said that he would not push Mr Markus in that respect. In my view, nothing flows from this exchange. Recidivism was a relevant matter in terms of the Ministerial Direction and was a matter that required discussion.

33 Finally, the applicant directs attention to page 101 of the transcript where the following appears:

"THE D. PRESIDENT: I will do my best to get it out as soon as possible. Thank you both - and Mr Markus, I am indebted to you, both for a very good statement of facts and contentions which is a big help and also for explaining the regulations to me. Thank you."

It is not uncommon for a hearing to conclude with a polite observation on the part of the presiding officer to the effect of that made by the Deputy President. It is devoid of sinister overtones.

34 As to a closed mind, it is fair to say that occasionally the Deputy President exhibited a degree of impatience and scepticism in the questions which he put. An example appears at page 64 of the transcript as follows:

"THE D. PRESIDENT: Mr Vaitaiki, you have been deported. Have you forgotten that? --- No, I haven't forgot because as a result one of my sons is in gaol - that's one of the result They didn't take ---

Mr Vaitaiki, are you trying to get back into Australia? --- I will be trying to get back in the normal way, in the right way.

But you can't. You can't apply for a visa, you admitted that earlier. You can't get back into Australia. You may come back over and over again on different passports - and indeed I am sure Mr Markus will suggest to me that that is exactly what will happen but the truth of the matter is Mr Markus is right, if you were really concerned about your health you could leave tomorrow and see any doctor you please in Tonga and New Zealand or wherever? --- Don't forget my problem was happening in the flights. It might be the economy syndrome, you know, which can kill. But I want to see my doctor before I can go back, that's all I'm asking for."

35 The Deputy President returns to this topic at page 70 of the transcript where the following appears:

"THE D. PRESIDENT: Mr Vaitaiki, I don't know that you quite understand what this case is about.

MR VAITAIKI: This might not be very important ---

THE D. PRESIDENT: What you are trying to do is get back into Australia and that is impossible. You have been deported from Australia after a string of criminal offences. Now, you told Mr Markus in answer to his cross-examination that in order to get a transit visa you told the authorities a string of lies. Now, here you are in Villawood and you are complaining bitterly about the doctors, every single one of them. Either they are no good or they fall asleep. You could leave this country tomorrow, assuming there is a plane, and you could go to Tonga where you can get whatever medical treatment you want - whatever. You could hire the top specialists in all of Tonga.

I don't know if you have got problems with New Zealand but maybe the same applies to New Zealand. Now, you are staying in Villawood and fighting bitterly to avoid being sent away from Villawood for reason which I don't even pretend to understand. If we assume for the moment that I am in your favour and I give you a three month medical visa - right?

MR VAITAIKI: Right.

THE D. PRESIDENT: Where does that get you? Three months will expire.

MR VAITAIKI: It will mean a lot for me, Mr Deputy President ---

THE D. PRESIDENT: What? What does it mean to you? It means that you stay in Australia a little longer so that you can make more applications.

MR VAITAIKI: No, I won't.

THE D. PRESIDENT: Oh yes, you will. You have never stopped making applications over 25 years."

36 In this passage, the Deputy President makes it clear that he has difficulty understanding the applicant's case. The Deputy President is clearly sceptical as to that case given the applicant's concession in cross-examination that in order to get a transit visa, he told the authorities a string of lies. It may be that the Deputy President is effectively putting the Minister's case the applicant, but it was the Minister's case that the applicant was engaged in a scheme to get back into Australia, and that was a case which the applicant had to meet.

37 At the end of the hearing the following appears; although this was not a passage relied upon by the applicant in his submissions:

"MR VAITAIKI: Thank you, Mr Deputy President. I just finish up with another biblical story, very short story.

THE D. PRESIDENT: All right.

MR VAITAIKI: This is about Mary and her sister ---

THE D. PRESIDENT: Is this from the Bible?

MR VAITAIKI: Yes, this is two sisters, Mary and Martha. And when their brother - they have only got one brother and he died, he passed away. And they were crying and mourning and while they crying Jesus came past and asked them why they crying and they said, `Oh, our brother, he died. If you were here you raise him from dead - he won't die if Jesus was there'. But then Jesus said, `Oh, he is only sleeping.' Then he ended up waking him up - called him out from the tombs. Raise - and he came out. Today I am lost, not only as a brother for my sisters, but a father. Even though I am still alive, or maybe I am sleeping, but I am like a dead person. I am not allowed ever to come back ---

THE D. PRESIDENT: Tell me something, Mr Vaitaiki, what does the Bible say about bearing false witness?

MR VAITAIKI: Apart from that, is nothing ---

THE D. PRESIDENT: What does the Bible say about telling untruths?

MR VAITAIKI: It is bad. It is not good - but what I ---

THE D. PRESIDENT: And what did you do?

MR VAITAIKI: What I give today is the whole truth. What I told the immigration when they first arrest me on those circumstances, my mind was not in with me.

THE D. PRESIDENT: And when you applied for the visa, your mind wasn't on that either?

MR VAITAIKI: Yes, I didn't want to go that far, Mr Deputy President. I just want to finish up this and ---

THE D. PRESIDENT: So your mind wasn't on matters properly when you told immigration a whole load of - a number of untruths but when you applied for a visa in Tonga your mind was similarly disengaged. Is that right - or you don't want to go that far?

MR VAITAIKI: I rather bring my story short and ---

THE D. PRESIDENT: My decision is reserved."

38 The Deputy President appears to have run out of patience with the applicant who was invoking biblical stories to assist his case, when he was not prepared to live by the Bible's precepts himself. It may have been better if this exchange had not occurred, but it is neither demonstrative nor indicative of actual or apparent bias. At the most, it is an expression of impatience at what the AAT appears to have regarded as cant on the part of the applicant.

39 The appeal should be dismissed with costs.

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

Associate:

Dated: 28 February 2003

	The applicant appeared in person
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 February 2003
Date of Judgment:	28 February 2003