Minister for Immigration and Multicultural Affairs v White P74/2000 [2000] HCATrans 625 (24 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P43 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

LEGENG JIA

Respondent

Office of the Registry

Perth No P77 of 2000

In the matter of -

An application for a Writ of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

LEGENG JIA

Prosecutor

Office of the Registry

Perth No P74 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

TE WHETU WHAKATAU WHITE

Respondent

Office of the Registry

Perth No P81 of 2000

In the matter of -

An application for a Writ of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

TE WHETU WHAKATAU WHITE

Prosecutor

GLEESON CJ

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 24 OCTOBER 2000, AT 4.02 PM

Copyright in the High Court of Australia

__________________

MR R.R.S. TRACEY, QC: If the Court pleases, I ask for leave to appear unrobed momentarily. I appear with my learned friend, MR P.R. MACLIVER, for the Minister in all those matters. (instructed by the Australian Government Solicitor)

MR W.S. MARTIN, QC: If it please the Court, with my learned friend, MR H.N.H. CHRISTIE, I appear on behalf of the respondents to the appeals and the applicants for prerogative relief. (instructed by the Director of Legal Aid, Legal Aid Western Australia)

GLEESON CJ: In all four matters?

MR MARTIN: In all four matters, yes.

GLEESON CJ: That is a relief to me. So counsel have come prepared to argue the four cases together. Is that convenient to everybody?

MR MARTIN: Yes.

GLEESON CJ: Have you agreed between yourselves on an order of presentation of arguments?

MR MARTIN: No.

GLEESON CJ: We will hear from the Minister first.

MR TRACEY: If your Honour pleases. May I start, I think logically, with Jia and the appeal in Jia as distinct from the prerogative relief that is sought. I do that because, as the Court may be aware, the Full Federal Court in White relied very heavily on Jia and the findings of the Full Court in Jia and there will therefore be a lot less to say about White if we deal with Jia first.

The issues raised on the appeal in Jia are these. The first two are related. They are whether it was open to the Full Court majority to draw and act on inferences contrary to those drawn by the trial judge and, secondly, whether on the material it could be asserted that the only inferences open to the Court was that the Minister was actually biased by reason of prejudgment. There is an issue that is brought into contest by a notice of contention which suggests that the court at all levels applied an incorrect formulation of the test for actual bias and there are certain additional issues raised by the notice of contention, principally, whether the decision of the Full Court of the Federal Court in Gunner correctly represents the law as to the relationship of decisions by the Minister and decisions by the Administrative Appeals Tribunal.

GLEESON CJ: Do we get into the area that was argued the other day about the construction of the statute and exclusion of requirements of natural justice?

MR TRACEY: No, your Honour, it is no part of the Minister's contention in these matters that the exercise of his powers personally are unconstrained by the requirements of natural justice and I say that because the specific powers that we are dealing are the power of cancellation of a visa which is provided for quite separately from the provisions for dealing with applications for the grants of visas which were the subject - - -

GUMMOW J: It is a different part of the Act.

MR TRACEY: It is indeed, your Honour. It is in Part 9 of the Act, as distinct from Part 7 which was the subject of attention in the earlier matter. The trial judge in Jia, his Honour Mr Justice French, was - - -

GUMMOW J: No, his Honour's judgment is reported in 84 FCR 87 and the Full Court in [1999] FCA 951; 93 FCR 556.

MR TRACEY: Yes. That is so, your Honour, and all the judgments are to be found in the appeal book. Could I go first to what his Honour Justice French had to say in dealing with the - - -

GUMMOW J: Should we not look at the sections first to confer the power?

MR TRACEY: If that is to be of assistance, certainly, your Honours. I should say that the sections as they stood at the time that these decisions were made are different from the - - -

GUMMOW J: That is why I asked.

MR TRACEY: Yes. Perhaps they can be conveniently found in the judgment of his Honour Justice Nicholson which appear in the book at 228 to 229. They are sections 501 and 502 of the Act in the form that they then appeared.

GUMMOW J: What is the relevant date?

MR TRACEY: The relevant date of decision, your Honour, was 10 June 1997.

GUMMOW J: Is that the relevant date for the statutory form? Which decision are we talking of?

MR TRACEY: We are talking of the Minister's decision to cancel Mr Jia's visa, and that was done on 10 June 1997

GUMMOW J: Yes, thank you.

GLEESON CJ: So the legislation we are looking at is what?

MR TRACEY: We are looking at the Migration Act - - -

GUMMOW J: Is it Reprint No 6?

MR TRACEY: I think your Honour can safely work on No 6. I will check that overnight, but I think that, in all relevant respects, has the law as it stood at the relevant time.

GLEESON CJ: Thank you.

MR TRACEY: If I could go to section 501, the relevant parts are these:

(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 -

one then goes down to subsection (2) and it provides:

(2) This subsection applies to a person if the Minister:

(a) having regard to:

(i) the person's past criminal conduct.....

is satisfied that the person is not of good character.

Then in section 502, the relevant parts are these:

(1) If:

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

(ii) under section 501;

.....

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 -

The effect of that certificate is to preclude access to the Administrative Appeals Tribunal by way of appeal from the Minister's decision:

(2) A decision under subsection (1) must be taken by the Minister personally.

(3) If the Minister makes a decision under subsection (1) -

then he is required to -

cause notice of the making of the decision to be laid before each House of Parliament within 15 sitting days - - -

GLEESON CJ: I am sorry, Mr Tracey, I have just overlooked something here. Section 501(2) says that section 501(2) "applies to a person" in certain circumstances, that is:

if the Minister:

(a) having regard to -

et cetera.

MR TRACEY: Yes, your Honour.

GLEESON CJ: What is the consequence subsection (2) applying to a person?

MR TRACEY: Your Honour, the consequence is to be found in the prefatory words of 501(1).

GLEESON CJ: Of 501(1)(a)?

MR TRACEY: Yes, the Minister can cancel the visa.

GLEESON CJ: Thank you.

GUMMOW J: Where do we find the consequence you mentioned about exclusion and certificates, consequences for AAT review.

MR TRACEY: Your Honour, I think that is to be found in section 500. If your Honour will bear with me, I will just - - -

GUMMOW J: Yes, section 500(1).

MR TRACEY: Yes, your Honour. So that what occurred - - -

KIRBY J: What is the point of distinction between 502, where it talks of "the Minister, acting personally", and 501, where it just talks of "The Minister may"? Does that imply that under 501 the Minister may act through agents, and under 502 the Minister must do it himself or herself?

MR TRACEY: Under 501, the Minister may act through delegates, your Honour, and a delegate of the Minister may cancel a visa.

GUMMOW J: There is a separate section about delegates, is there not?

MR TRACEY: There is a separate power that enables the Minister to delegate his powers.

GUMMOW J: We had better have that too.

MR TRACEY: Yes, your Honour. I think your Honour will find that at 497 or thereabouts. Section 496, your Honour, is the power.

KIRBY J: Section 496?

MR TRACEY: Yes, your Honour, and what 502 does is prevent the power to issue a certificate cannot be delegated because it only can occur if the Minister is acting personally under 501 or one of the other provisions there mentioned.

GUMMOW J: What is the consequence of 502(3)? Does the Acts Interpretation Act give any consequence of resolution by either House?

MR TRACEY: No, it does not.

GUMMOW J: Is there a power of disallowance of some sort?

MR TRACEY: No, I do not think it is a disallowable instrument because all that he is doing is causing notice of the making of the decision. That is provided to the Parliament as a matter of information.

KIRBY J: That seems unlikely, that Parliament would add that rider to the Minister's power in order, one would have thought, to activate a parliamentary supervision of what the Minister does?

MR TRACEY: Your Honour, I think what I have said is correct. It will certainly be checked overnight, but I do not think that the notification, the notice, would constitute a disallowable instrument, but I will check that. It may be sufficient for the parliamentary purpose that the Parliament be alert to what has occurred and the matter can be raised - - -

GUMMOW J: No, no, it is not the Parliament, it is a House.

MR TRACEY: I am sorry?

GUMMOW J: It is in either House, is it not?

MR TRACEY: Yes, it is, yes. It has to be laid before both Houses and either one of them may wish, through questions or other procedures, to take up the matter with the Minister, and that could be done in many ways. But what is important - and it is important for the purposes of this case - that it was plainly contemplated by the legislature that any exercise of the Minister's power under section 502 would be reported to it. Now, whether the consequences of that in any given case can be predicted is difficult to say. The answer is probably no, but at least the Parliament is formally informed.

It was alleged that in making decisions in relation to Mr Jia, under sections 501 and 502, that he was actually biased and thereby disabled from being the decision maker and that was an allegation that was first advanced before the trial judge, Justice French, and he, having examined - - -

KIRBY J: Remind of the facts that the Minister - was the step taken under 501 first and then 502?

MR TRACEY: They were taken together, your Honour. That emerges from the signing of a minute to the Minister that had sent to him various options. Your Honour will find the relevant part at 101 of the appeal book, where the Minister made a series of decisions, including both of the ones to which your Honour has just referred.

GUMMOW J: What was the basis of Justice French's jurisdiction? What was the proceeding he was dealing with?

MR TRACEY: The proceedings that were taken before his Honour were proceedings under Part 8 of the Migration Act for judicial review of the Minister's decision, and the relevant ground that is relied upon - there were a number, but for present purposes the relevant ground was an allegation of actual bias which is provided for in section 476(1)(f) of the Act.

GUMMOW J: Yes, thank you.

MR TRACEY: I am conscious of the time, your Honour. Do your Honours wish me to continue?

GLEESON CJ: We will sit until 4.30.

MR TRACEY: Yes, your Honour. The allegation of actual bias was supported by a number of matters that were advanced on behalf of the applicant before his Honour and it may be convenient to go to his Honour's reasons at this stage starting at 153 in the appeal book. His Honour there sets out certain facts that had been agreed as between the parties prior to the hearing and they were certain opinions held by the Minister, but not publicly expressed by him, namely:

1. That most Australians would find it difficult to reconcile a six and a half year jail sentence for rape -

that is a sentence that had been imposed on Mr Jia by the Supreme Court in this State -

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 was also an agreed fact, as is set out about line 27, that the Minister had:

difficulty in accepting the line of reasoning taken by the AAT -

in Mr Jia's case -

I am sure that most Australians would be surprised that a non-citizen with such convictions has been found to be of good character.

There was then reference to certain things that the Minister had said in April 1997, some two months before he made the decision in the course of a radio interview with a Mr Robertson in Sydney and in the course of that interview, the Minister said a number of things about the issue of people who were not Australian citizens and who had committed serious criminal offences in this country. He said, for a start that he was:

unhappy about the way in (sic) the Administrative Appeals Tribunal has been dealing with -

such matters, and he indicated that he had asked a parliamentary committee:

to look at the whole question of criminal deportation -

He expressed disappointment that the Tribunal had been overturning a large number of cases in which criminal deportation had been ordered. He was asked what a person of good character was and his response to that was:

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 -

that is Gerry Adams from Sein Fenn -

if you are known to association with organisations that are involved in criminal activity, you can be found to be of not good character.

That being a reference to another of the parts of 501 that are not presently relevant.

KIRBY J: He was let in to Australia eventually, was he not?

MR TRACEY: Eventually he was, your Honour, but he was refused prior to 1997 and then I think after things settled down in - - -

KIRBY J: His character improved a bit, did it?

MR TRACEY: I think that was the general view, your Honour, yes. Then the interviewer asked what the Minister could do to overturn the effect of the Tribunal's decision and the Minister's response was this:

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.

It is then recorded that on 23 April an officer of the Department sent a minute to the Minister relating to Mr Jia advising the Minister that he had three options available to him in the wake of the Administrative Appeals Tribunal's decision. He could seek to go to the Federal Court on a matter of law; he could do what, in fact, he did do; or, thirdly, he could accept the AAT's decision and finalise the assessment of Mr Jia's application.

GUMMOW J: How would the matter have got from the AAT to the Federal Court?

MR TRACEY: It could only have got there, your Honour - - -

GUMMOW J: It did not, it went before Justice Carr, but I just wonder how?

MR TRACEY: Your Honour, I think it would have been an appeal under, I think, it is section 43 of the Administrative Appeals Tribunal Act which allows appeals on questions of law.

GUMMOW J: Yes. It is quite outside the Migration Act?

MR TRACEY: Yes, your Honour.

GUMMOW J: Could that just be checked overnight?

MR TRACEY: Yes, certainly, your Honour. There were various other matters of advice that I do not need to trouble the Court with that were contained in that minute.

Could I take the Court over to 156 at the bottom where it is recorded that on 30 April, the Minister had sent a letter to the then President of the Administrative Appeals Tribunal in which he expressed a number of concerns relating to Tribunal decisions on criminal deportation matters. At the top of 157, there is a summary of the Minister's view about the importance of Tribunal decisions in the area, and then he turns specifically later in that letter to the question of the decision in Mr Jia's case and he expressed the view - it appears at about line 22 on page 157:

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.

He expresses some concern about a possible precedent that the decision may have set. He referred to another case and said some other things about the significance of those cases. Then, over at 158, he is reported further to have said that:

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.

There was then another minute sent by an officer on 6 June - - -

GUMMOW J: I will just stop you there for minute. Is there any point taken against your client that it is in any way improper for a Minister having administration of a particular Act, decisions under which go to the AAT for review, but is it in any way improper for a responsible Minister to make representations to the AAT as to the conduct of its review procedures?

MR TRACEY: Your Honour, we do not understand our friends - - -

GUMMOW J: I am not suggesting it is, but I just want to be quite clear about it.

MR TRACEY: No, we do not understand our friends to be making that submission and, indeed, we do not understand it to have been made at either level below; but I have to say to your Honour that even though the submission was not made a the Full Court, Justice Spender's judgment plainly - - -

GUMMOW J: It seemed to be implicit, perhaps.

MR TRACEY: Yes, he makes it very clear that he regards it as improper, but we would submit that it is not, and writing to one member of the Tribunal, albeit the President, after cases have been decided, expressing concern, is not the same thing as writing in relation to pending cases and submitting what ought to occur, which we would have to concede was improper.

On 6 June there was a further minute sent to the Minister and that is the minute that I took the Court to briefly which concludes at 101 which dealt in some detail with the background of the matter and concluded, as is evident at 161 of the appeal book, that the Minister consider various options. The Minister, on 10 June, made the decision which is subject to challenge in this proceeding.

CALLINAN J: Can I just ask you a question about the construction of section 501(2)?

MR TRACEY: Yes, your Honour.

CALLINAN J: Justice Spender, at page 197, says, right at the bottom of the page:

Subsection 501(2) does not equate significant past criminal conduct with the absence of good character.

Do you see that?

MR TRACEY: Yes, I do, your Honour.

CALLINAN J: What do you say about that proposition of his Honour's?

MR TRACEY: Your Honour, on a strict construction, it does not because what it hinges on is the Minister's satisfaction.

CALLINAN J: But to what else can the Minister have regard in reaching that state of satisfaction?

MR TRACEY: Your Honour, under (2)(a)(ii), he could look just to the person's general conduct. He is not limited to criminal conduct.

CALLINAN J: Yes. For example, prospects of rehabilitation would hardly be relevant, would they? The only two matters to which the Minister has to have regard or may have regard under subsection (2) are:

(i) the person's past criminal conduct; or

(ii) the person's general conduct -

there are no other relevant matters, are there, or are there?

MR TRACEY: Well, your Honour, there is Full Court authority in the Federal Court - - -

CALLINAN J: Do not worry about the authority, just looking at the meaning of words.

MR TRACEY: Yes, your Honour. Your Honour, as the section reads, your Honour is, with respect, perfectly correct.

CALLINAN J: It states alternative criteria, and there are only two of them.

MR TRACEY: Yes.

KIRBY J: But presumably by using criminal conduct, but nonetheless contemplating that the Minister might be satisfied that a person was of good character, there is no necessary antithesis between having the relevant criminal conduct and yet being of good character, because that is the very thing that is committed to the Minister to decide.

GLEESON CJ: It might depend on the criminal conduct, might it not? Would exceeding the speed limit be a criminal conduct?

MR TRACEY: Yes, it would have to depend on degree, and the Minister's position, as the Court will see throughout this, is that he is talking about serious criminal conduct, not trivial breaches of criminal law.

GUMMOW J: Does Wednesbury unreasonableness come into this discretion?

MR TRACEY: Unreasonableness was a ground that was - - -

GUMMOW J: But do you dispute that it can come into play on this section?

MR TRACEY: No, we do not dispute that, your Honour, but we do not understand it to be an issue that arises here.

GUMMOW J: No.

MR TRACEY: But it is certainly a ground that has been relied on.

GUMMOW J: What was that Full Court decision that seemed to be embarrassing for you?

MR TRACEY: Your Honour, it is a decision in Irving v Minister of State for Immigration, (1996) 68 FCR at 422, and your Honour will see the relevant extracts set out in the appeal book at 218 to 219.

GUMMOW J: Thank you.

GLEESON CJ: Mr Tracey, how long do you think your argument will take?

MR TRACEY: As to all the matters?

GLEESON CJ: Yes.

MR TRACEY: Your Honour, I would expect that I would need another hour and a half to two hours.

GLEESON CJ: Mr Martin.

MR MARTIN: Perhaps an hour and a half, your Honour.

GLEESON CJ: We will adjourn until 10.00 tomorrow morning. Now, tomorrow morning, Mr Tracey, I would be obliged if you could let us know what your submissions are on the meaning of two expressions that appear in section 501. One expression is "criminal conduct" and the other is "good character".

MR TRACEY: Yes, your Honour.

KIRBY J: Mr Tracey, could I just say - and this is also for Mr Martin - I knew the Minister at university many, many years ago and I have met him from time to time socially. I do not feel embarrassed to sit and I feel it is my duty to sit, but I thought I should put that on the record, given the fact that the issues in the case raise questions of actual bias. I perhaps ought to have mentioned it at the outset, but I think I ought to put it before you so that you can consider the matter if you want to.

MR TRACEY: Thank you, your Honour.

GLEESON CJ: We will adjourn until 10.00 o'clock.

AT 4.35 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 25 OCTOBER 2000