Hell's Angels Motorcycle Club Incorporated v The Honourable Gerry Hand, State Minister for Immigration, Local Government and Ethnic Affairs

[1992] HCATrans 77

..

"I

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M6 of 1992

B e t w e e n -

HELL'S ANGELS MOTORCYCLE CLUB

INCORPORATED

Applicant

and

THE HONOURABLE GERRY HAND,

STATE MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Hell's 1 13/3/92

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 MARCH 1992, AT 12.07 PM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC: If the Court pleases, I appear with my

learned friend, MR B.A. KEON-COHEN, for the

applicant. (instructed by John P O'Sullivan)

MR D. GRAHAM, QC:  May it please the Court, I appear with my

learned friend, MR R.M. DOWNING, for the

respondent. (instructed by the Australian

Government Solicitor)

MASON CJ: Yes, Mr Castan.

MR CASTAN:  If the Court pleases, there are two matters

which we seek to hand up to the Court - two sets of

materials. Firstly, the Migration Regulations and

the Migration Act 1958, relevant extracts, of which

we hand up three copies. Secondly, may I mention

to Your Honours that there has been sworn a further

affidavit which brings up to date the state of the

applicants' intentions in relation to the

continuity of their applications in relation to

events which have occurred since the preparation of

the application book. That is to say, if it be

said, and we are not sure whether this - it may

only be relevant in reply, but if it be said that

the matter is moot or that they no longer intend to

come - because the event which was the subject of

consideration in the Full Federal Court, took place

in December - if it be said that they do not want

to still come, we have got the material which makes

it clear that they intend still to come for a

further meeting. The applicants for visas still

desire to come to Australia and their applications

are still alive. The affidavit brings up, since

the printing of the application book, the

correspondence which deals with that and - - -

MASON CJ: Well, I do not think there is any occasion at

this stage to go into that.

MR CASTAN:  No, it may be that it can be dealt with in due

course if it arises. If the Court pleases, before

His Honour Mr Justice Olney, the matter in so far

as arguments are now relevant - - -

MASON CJ: Yes, now can you identify what are going to be

the issues in the case; the materials are diffuse,

and it is not altogether easy to identify what the

issues are that you want to agitate.

MR CASTAN:  Yes, Your Honour. There are three matters in

essence: one is a construction point which, as we
would put it, opens up the gate to the character

question.

MASON CJ: This is regulation 4(1).

Hell's	13/3/92
MR CASTAN: Regulation 4(1).

GAUDRON J: This not having been at the forefront of any

submissions hitherto?

MR CASTAN:  It was not at the forefront of any submissions

and I will explain the way the matter went.

GAUDRON J:	And it was not even part of the submissions?
MR CASTAN:	It was not part of any written submissions, but perhaps I will need to explain how the matters
arose. Could I just summarize, the second matter
which we raise relates to the possible relevance of
the matters which are alleged to be intelligence or
allegations relating to the organization in various countries, which are contained in the so-called
Joseph letters, and the third matter is the way in which the court should evaluate that kind of material.

There is also a natural justice point, but it

may be that it turns out that has also now been

by-passed by subsequent events and we will briefly

refer to that, but I think it is not any longer

critical.

Now, can I briefly explain the way in which

the matter went before the courts, in order to

respond to the question that Your Honour has just

put to me. The matter was dealt with by the

department in its correspondence on the

applications upon the assumption that the

allegations made in relation to the organization

and its activities and some of its members were

allegations which bore upon criterion (c) in the

definition of public interest criteria; that is the

likely harm criterion. And the letters themselves

reveal that the department apparently, one can say,
regarded the matters that were known or alleged to

be known about the organization as relevant and

bearing upon the likely harm criterion.

That is apparent from the fact that letters

sent to people about whom nothing was known

individually about their character or criminal

record, were confined and specifically said, likely

harm criterion, and then set out the material, and

nothing was put to them, asking them to respond in

relation to character. And towards the end of

those letters, it is said, now you are asked to

respond as to why you should not be considered that

it is likely that you may cause harm to Australia.

So, the letters themselves illustrate the view

that the question of character was not open, unless

there were specific allegations of criminality or

Hell's 3 13/3/92

having been refused entry to a country. And it

would seem that the reasons why the department took

that view, and certainly the argument before His

Honour Mr Justice Olney proceeded upon that basis,

and in so far as the argument dealt with this

question of relevance, addressed the question of

relevant considerations or irrelevant

considerations, solely by reference to criterion

(c), the possibility of activities which might

cause harm.

The manner of suggesting that - there was no

suggestion that those general allegations, criminal

intelligence as it is called, might be taken into

account on the question of character, and

His Honour below did not address that question at

all, because, as we understand it, it was not

suggested that it could bear upon that matter.	The
reason, we suspect, is that there is a gate that

must be opened, if I can use that term, that is to say one must by-pass regulation 4(1). On the face

of it, regulation 4(1) poses a barrier to
consideration of anything relating to character,

except the specific matters which regulation 4

itself sets out.

If I can take Your Honours to page 7 of the

print of the Regulations, first of all,

Your Honours will see the "public interest

criteria" there set out. It is expressed as a

definition:

"public interest criteria", in relation to a

person who seeks to enter, or to remain in,

Australia under a visa or an entry permit,
means the following criteria, namely, the

person:

(a) is of good character;

and that is the matter that was not addressed by
His Honour Mr Justice Olney below.	And then (c) is
the one that was addressed:

(c) is not determined by the Minister acting

personally to be likely to become involved in

activities disruptive to, or violence

threatening harm to, the Australian community

or a group within the Australian community.

Now, criterion (a) is then picked up in

regulation 4(1) on page 13 of the print.	One sees
there:

For the purposes of these Regulations, a

person is to be taken not to be of good

character if:

Hell's 13/3/92

and there are then set out two paragraphs (a) and

(b). (a) is:

in the case of an applicant for a visa or an

entry permit of any class:

(i) the applicant has been assessed by the

competent Australian authorities to be a risk

to Australian national security;

And then:

sentenced to death, to imprisonment for life

or to imprisonment for a period of not less

than one year;

convicted of 2 or more crimes and sentenced to

imprisonment for a period totalling not less

than one year;

charged with a crime and either found guilty

of having committed the crime while of unsound

mind or acquitted;

deported -

is (D). (E)

excluded from another country in the

circumstances prescribed -

And then:

(iii) the applicant has, in the reasonable

belief of the Minister, been involved in

activities indicating contempt, or disregard,

for the law or for human rights; and

(b) in the case of an applicant -

wanting to come -

as a permanent entry ..... - the applicant has

at any time been convicted of an

offence ..... in circumstances indicating, in
the reasonable belief of the Minister,
habitual contempt, or disregard, for the law

or for human rights.

Now, Your Honours, in essence, if this is the

definition of good character, as the heading

suggests it is -

Interpretation - good character

Hell's 13/3/92

then the matters that were considered by the

Full Court were not open to be considered.	They
were just - - -

MASON CJ:  But why does the heading suggest a definition?

MR CASTAN: Well, it says "Interpretation - good character".

It then says - - -

MASON CJ: But it does not necessarily mean that it is an

exclusive definition, which is what you are

contending, is it not?

MR CASTAN:  It is what we are contending. What we are

contending is that these Regulations have been

promulgated, we would respectfully submit, so that

there are criteria set out in as many possible

circumstances as one can find, and one finds them

in, for instance, regulation 3, a reference to:

an aged parent is to be taken to satisfy the

balance of family -

The words "taken not to be" are perhaps unusual.

One is tempted to say that they might, in another

era of drafting, perhaps the word "deemed" might

have been used, but we would respectfully submit

that what is being done here is setting up the

criteria, just like there are criteria for public

interest, so here there are criteria and one finds

that in a number of these provisions, in

regulation 8, the same sorts of words are found;
there are a number of them where that is the mode

of language used, and in our respectful submission, the view taken by the department itself originally

and apparently assumed to be the appropriate view,

at least until a suggestion to the contrary

emanated, as we understand it, from the bench in

the Full Federal Court, has been that character is

delimited by this provision, regulation 4(1), and

in our respectful submission, it is so delimited

and in our respectful submission, to take it

otherwise is to open up precisely the kind of, if I

can say so with great respect, difficult questions, the kind of tangle one gets into when one starts to

try to take into account the whole variety of other

considerations.

But, the way in which the case went was that

the case went forward, including the written

submissions and oral submissions by both sides, at

least until a suggestion emanated from the bench in

the Full Federal Court, that perhaps, while the

arguments were very persuasive that there might be

difficulties in seeing how these generalized

allegations that were made could possibly bear on

criterion (c), they might, nevertheless, have some

Hell's 6 13/3/92

relevance to criterion (a). In order to reach that
result, the Full Federal Court had to escape the
operation, if I can use that term, the delimiting
operation, as we put it, of regulation 4(1), and

they did so and dealt with the matter at

pages 69 to 70 of the appeal book.

Now, before leaving the Regulations, we also

should take Your Honours to regulation 143 at

page 171 of the print, because this, in our

respectful submission, reinforces the view which,

we would respectfully submit, leads to the

conclusion that Their Honours were in error.

Regulation 143 is headed:

Waiver of good character requirement

And then provides:

Notwithstanding any other provision of these

Regulations, the Minister may grant a visa or

an entry permit to an applicant who fails to

satisfy public interest criteria only because

the applicant is to be taken not to be of good

character -

So if the person otherwise meets the criteria of

not owing debts and all the other criteria that are

set out on page 7 in regulation 2, but does not

meet good character, then the Minister, if he is

satisfied that, in the case of a circumstance

referred to in subparagraph 4(a)(i):

the circumstance no longer obtains; or

(ii) in the case of conduct referred to in

subparagraph 4(a)(ii) or (iii) - the applicant

has shown by subsequent conduct that he or she

is reformed; and

(b) the Minister is satisfied that undue harm

would be unlikely to result to the Australian

community if the visa or entry permit was

granted; and

(c) where the applicant is an applicant for a

refugee or humanitarian visa or entry permit,

the Minister is satisfied:

(i) that the applicant satisfies the other

prescribed criteria in relation to a refugee
visa or entry permit or a humanitarian visa or

entry permit; and

(ii) that any period of imprisonment imposed

on the applicant was imposed, in reality, for

a political offence.

Hell's 7 13/3/92

Now, in our respectful submission, what

regulation 143 is doing is picking up, as the
defining characteristics of good character or the
disqualifying characteristics for good character,

those matters which are set out in regulation 4 - -

GAUDRON J: Yes, but that is explicable, is it not,

Mr Castan, because of the expression "taken not to

be of good character"?

MR CASTAN: Well, it is explicable because what has happened

is that in regulation 143 the regulation is dealing

with those circumstances where a person is to be

taken not to be of good character, and in our

respectful -

GAUDRON J:	And so is regulation 4.
MR CASTAN:	Yes, Your Honour.

GAUDRON J: And what you have got - regulation 143, I should

not have thought, helps you - what you have really

got to do is say that regulation 4 is exhaustive

and exclusive, which seems to me to be a difficult

proposition in the light of a concept like good

character.

MR CASTAN:  But in our respectful submission, it would lead

to an oddity, one is tempted to say, an absurd

result, that if a person missed out on good

character by reason of any of these specific

matters in regulation 4, there was a ministerial

discretion or power to waive, but if it was at

large, as perhaps might be suggested by

Your Honour's question and as held by the

Full Federal Court, the Minister had no power to

waive or otherwise to deal with a person who has

redeemed themselves or otherwise might be,

nevertheless, no danger to Australia. The

difficulty is that the nature of the waiver is one

which is limited to those persons who fail to meet	the good character test by reference to
regulation 4, but there is no waiver power for those persons who might be, not of good character -
one can posit, for instance, a person who is a
professional person, perhaps, who has been
disbarred for something, but, one might say, not convicted of an offence, but nevertheless not of good character and a person who there is absolutely
no reason why they should not come into Australia
as a tourist.

There are any number of instances one can

posit where there would be circumstances where, to

have a waiver that is restricted in this way, would

be - - -

Hell's	13/3/92
GAUDRON J: Well, one other way of reading it is a

modification of the automatic effect of

regulation 4(1), but not having anything to do with

the obverse of whether or not a person is of good

character.

MR CASTAN:  Yes, but the difficulty one is left with, if

that is the case, was the oddity of having no

provision for waiver, where a person is of, not of

good character, but is otherwise of no danger

whatsoever to the Australian community, or there is

no reason why they should not come in for some

express purpose, or for some - one can imagine a

person who wants to come to Australia for a

swimming meeting, who is a swimming champion, who

is perhaps not of good character because in some

other capacity they have done something wrong,

which does not amount to a criminal offence. There

are any number of instances one can imagine, where

it would be an oddity to have no waiver provisions,

while the waiver provision is there, for criminals

and the like. Now, we respectfully submit that

that is an impossible result which would have to be

rejected.

Now, that in essence is the first matter. The

view that the Full Federal Court took was the view

that has been put by Your Honour Justice Gaudron to

me; we would respectfully submit, it is both - - -

GAUDRON J: Without any real argument, was it not?

MR CASTAN: Virtually without argument and over objection,

we might say. The whole issue of character was

raised by the court; it was all done in running.

GAUDRON J: There was not even running reference, was there,

to the exclusive and exhaustive nature of

regulation 4?

MR CASTAN:  I am not sure whether that precise point was

raised specifically by the court in the course of

raising the character matter. The character matter

was raised in running; the whole case had gone

forward on the basis that these generalized matters

could only bear upon likely harm.	The character
matter came up, it was then dealt with.	I must say

I cannot respond to Your Honours in terms of

whether there was a specific reference. When the

court raised the question, "Well what about

character?", I cannot answer as to whether it was

then - certainly there was no elucidation, even to

the limited degree that we have just elucidated

here, of this requirement.

MASON CJ: There is not much that can be said about it,

Mr Castan.

Hell's 9 13/3/92

MR CASTAN: Well, we have said what we can say about it and

we put that the court opened up that gateway to get

to the more general issue, which we now seek to

turn to, except that we respectfully submit it is

wrong and that it is important.

MASON CJ:	You may as well come to the next point.
MR CASTAN:	Now, the next point relates to, assuming one can determine good character by matters other than
those matters in regulation 4, in our respectful
submission, there is raised a most fundamental
question about the way in which determinations are
to be made by a Minister dealing with a criterion
such as character. In our respectful submission,
the material - - -
DEANE J:	Mr Castan, what is it that says that a person will

not be admitted unless he is of good character?	I
mean, what does regulation 143, in other words,
operate against?

MR CASTAN: Regulation 143 operates against regulation 2(1).

That sets out the criterion of being of good

character at page 7. That is all there is,

Your Honour; there is a requirement, as expressed.

DEANE J:  No, what I am asking you is, what is it that says

the Minister has not got power to admit somebody

who is taken to be of bad character?

MR CASTAN:  It is necessary to turn to the Act, Your Honour,

because if a person is of good character, if a
person does not meet the criteria, then they are

not entitled to come in and perhaps I could - - -

DEANE J: Well, that is my question.

MR CASTAN: Yes. Could I take Your Honour to - the best

analysis of this is perhaps found in the judgment

in the appeal book at pages 57 to 60, where there

is traced through the whole of the provisions, and

they are somewhat complex and tangled, but

Their Honours have traced through the legislative

scheme as it is put at the foot of page 57, by

starting with the relevant sections, and it is

probably the most convenient place to find it; it

is expressed as - at the foot of the last page of

page 57 and over, that:

Section 17(1) of the Migration Act provides

that the holder of an entry visa may enter

Australia after disembarkation at a proclaimed

airport. Except as provided by section 17(1),

a visa, whenever granted, does not entitle the

holder of the visa to enter Australia ..... The

Hell's 10 13/3/92

Minister may by instrument in writing that section 17 applies to visas .....

Then:

Section 23(l)(a) provides that the Regulations may make provision in relation to the granting

and refusal of visas -

And:

section 24(1) provides that section 24 applies

where and only where a person applies for a

visa of a particular class in the approved

form and in accordance with the Regulations

and any fee payable in respect of the

application is paid. Section 24(2) provides

that, unless section 24 applies, the Minister

is not required to consider an application at

all and shall not in any circumstances grant a

visa.

And there is then some discussion about what is involved in that, but the effect of section 24 of the Act is that a person who meets the criteria is

entitled to a visa. In other words, a generalized

discretion has been removed.

Can I take Your Honours to section 24(3),

which provides that:

Where it appears to the Minister that an

applicant for a visa other than an exempt visa

is, under the regulations, entitled to be

granted a visa of the class concerned, then:

(a) the Minister shall give the applicant

written notice -

in certain circumstances and in (b), the ultimate

result is that the Minister is obliged to grant a

visa.

What has happened here, Your Honour, is the

structure of the Act and the Regulations now is

that the Minister is obliged to grant a visa where

a person meets the relevant criteria. The criteria

are set out in the Regulations; the relevant

criterion we are looking at is the criterion of

good character. If a person is of good character,

they are entitled to a visa and it is - - -

MASON CJ: But it seems to be regulation 41 that sets out

the entitlement, is it not? That is how I read

page 59 of the application book.

Hell's 11 13/3/92

MR CASTAN:  Yes, Your Honour; regulation 41 actually sets

out the schedules and sets out:

a person is entitled to be granted a visa of a

class specified in column 2 of an item in

Schedule 2 if the person satisfies the

prescribed criteria -

So, once one satisfies the prescribed criteria,

then one is entitled to be granted the visa.

DEANE J:  I am still missing something; what is it that says

that, notwithstanding that somebody satisfies all

but one of the prescribed criteria, he cannot be

given a visa?

MR CASTAN: Nothing says that, Your Honour. If he satisfies

all but one, he does not satisfy the criteria.

DEANE J: Well, that is what I am trying to ask you; what is it that says that you cannot have a visa unless you

satisfy all the criteria?

MR CASTAN: That is regulation 41, Your Honour.

DEANE J: Well, that is what I have missed, yes.

MASON CJ: Well, we do not have regulation 41, do we?

DEANE J: Yes, we have; it is at page 56.

GAUDRON J: But I do not read that to answer Justice Deane's

question. It says that you automatically get it; it does not say that you automatically do not get

it.

MR CASTAN:  No, no. you get it. If you satisfy the prescribed criteria,

GAUDRON J: Yes, but what tells you if you do not get it?

MR CASTAN:  I am not sure that there is anything in the

Regulations that answers that question; there are criteria set out which entitle a person to a visa.

The Regulations proceed on the basis that if you do

not meet those criteria, you do not get a visa.

DEANE J: Well, that would be the position if there is

something in the Act that says the Minister cannot

grant a visa to someone who is not positively

entitled to it. Well now, is there anything that

says that?

MR CASTAN:  Would Your Honour excuse me one moment. I think

the answer to Your Honour's question is that	there
is no power given to the Minister, in either	the
Act or the Regulations, to grant a visa in

Hell's 12 13/3/92

circumstances other than where persons are entitled

to the visa pursuant to regulation 41. That is as

I understand the scheme of the legislation in the

Regulations, one does not find a power - there is a

power and I have not just got the section to hand -
but there is a power to waive the requirement of a

visa, which is used in rather exceptional cases,

but ordinarily the way in which section 24, which

deals with grant or refusal of visas, is

structured, it does not provide for persons who

have not otherwise met the Regulations

requirements.

MASON CJ: Well, does section 24(2) of the Act cover it?

It provides:

Unless this section applies, the Minister:

(a) is not required to consider an

application at all; and

(b) shall not in any circumstances grant a

visa.

MR CASTAN:  Well that would not take it very far,

Your Honour, because the section applies in all

cases under (1) and the section applies where a

person makes an application of a particular class

is applicable, and all subsection (2) does

in the approved form and in accordance with section

is excuse the Minister from having to consider

anything where persons have not complied with the

requirement of proper application.	So that does
not really provide an answer.

And, I hesitate to give an assurance about it,

because it is a complex structure of both Act and

Regulations, but it would seem that there is no

p~ovision that answers the suggestion put by

Your Honour Mr Justice Deane, what might happen

where a person does not meet the Regulations.

I was going to turn, Your Honours, to the question of relevance, assuming that it is open to

consider character by reference to matters at large beyond regulation 4. In our respectful

submission, the court below, the Full Federal Court

has fallen into error in holding that matters of

general import, said to relate to an organization,

may be taken into account as relevant

considerations when considering the application of

the given individuals here.

The matter falls to be considered, this

question, at two levels. There are two sorts of

ways in which it must be considered. There is,

Hell's 13 13/3/92

first of all, the question that is perhaps contained

within the aphorism that a man is known by the

company he keeps, and there is a question whether

it is permissible to consider an application from Mr Eidsmo in Trondheim in Norway, by reference to

some generalities that are expressed concerning

alleged arrests which apparently did not lead to
conviction, some 10 or 12 years ago, of a group of
people in Oakland, California, and there is a

question of relevance in the sense of what beyond

mere suspicion or mere allegation is required to

connect the allegations made about what happened

with certain persons arrested in a certain way in

Oakland, California some years ago, with the man

from Trondheim in Norway, who seeks to come to

Australia for a meeting.

And that raises, we would respectfully submit,

a question both of general importance, and also a

question where, in this particular case, the court

has fallen into error. In considering that general

matter, the court did look at the inadequacy of the

kind of intelligence that had been provided by the
relevant police authorities in the context of the

likely harm criterion, criticized it - both, this

was His Honour Mr Justice Olney, who was extremely

critical of it, and also the Full Federal Court -

who said there simply was no connecting fact; no

connection between what was said to have taken

place in relation to some persons who were members

of the organization in certain places around the

world and the likelihood of conduct of a particular

kind by any particular applicant.

And the court properly, in our respectful

submission, noted the lack of any connection to the

likely future conduct of any applicant who might

come to Australia. But the court then went on to

say that character is different than likely future

conduct and that, notwithstanding the same total

l~ck of connection to an individual, it was

matters as a matter which might bear upon permissible to take into account those same character.

Now, in our respectful submission, there was a

fundamental defect in that. The court said that

the matter is different because it only goes to

weight but,in our respectful submission, the

logic - there has to be a logical connection of

some kind, even if it be said that Mr Eidsmo in

Norway well knows the circumstances of what has

been happening in Oakland, California; even if

there be something that connects him. But we would

respectfully submit it is simply not permissible to

make generalized allegations about a group and then

say, each individual person who either is a member

Hell's 14 13/3/92

or seeks to be a member and seeks to come to a

meeting of various associates of that group in
Australia, is to have his character judged by

matters including that matter. We would

respectfully submit it cannot go even to relevance.

But there is a more important second-level question that emerges and it is illustrated by

taking Your Honours to one of the examples.	If I
can take Your Honours to page 126 of the book, there is an even more important point that is
raised here.	Your Honours will see at page 126, it

is one of the letters; this one went to a Mr Goody

in the United Kingdom, and at the foot of page 125,

it is said:

I have received the following information from

law enforcement authorities in Australia,

which may be relevant to the public interest

criteria.

Some of which is set out above.	And then there is
a heading:

"Likely Harm"

And there are then set out a conclusion and a

number of dash points, if one can call them that,

down on the page, and can I take Your Honours to

the third of those dash points, opposite line 30,

where it said:

On 14 May 1990 HAMC,

that is the applicant -

South Australia member (THALLER) found to be

the proprietor of the following escort

agencies CUDDLES, BABES, LIL ANGELS, LONELY

NIGHTS. (Source - South Australian Police BCI

Source Document 910432).

Now that raises an even more fundamental question,
Your Honours.	What is here being said is not

something about the organization or something about

the activities of the organization or something
that would enable one to say of Mr Taller that

Mr Goody, to whom this letter was addressed, bears

on something to do with Mr Goody. What is being

said is that a member of the South Australian

branch of this organization runs a lawful business

of a particular kind in South Australia, an escort

agency. That is all that is said. And then it is

said, it is relevant for the Minister as the

decision maker, to take into account that fact in

determining the application of Mr Goody.

Hell's 15 13/3/92

Now, we would respectfully submit that there are serious problems associated with that, which

have wide ranging effects. The effect of that

particular item, being included apparently as a

relevant matter, as the Full Federal Court has

said, is that it can be said that the individual

activities of a particular member, not merely the
activities of the organization, but the individual
activities of a particular member who happens to be

a member in South Australia, are relevant to

consider Mr Goody's character. Now, the letter did

not address character; this is one of the letters

which said nothing at all about character, but for

character, notwithstanding this letter did not seek

the purpose of the present, these are the matters

that were put and are now said, as a result of the

to put that, but it is now said, these matters,

including the fact of an individual's activities in

South Australia, not said to be Hell's Angel

activity; not said to be a front for the
organization; no link whatsoever is drawn between

this person's private business activities and the

activities of the organization.

GAUDRON J:  There is one difficulty with all of this. Even

assuming you are right, they may never be taken

into account. It really goes to the question

whether you had reviewable conduct at all.

MR CASTAN:  Yes, Your Honour, but the whole case went

forward on the base that these are - - -

GAUDRON J:  I know it did, but it raises a question about

suitability of a vehicle. Even if you be right,

what has gone forward as reviewable conduct is not

conduct by the Minister in any real sense, who is

the respondent, but by his departmental officers.

There is no indication from the Minister that these

matters will form any part of his decision.

MR CASTAN: Well, in our respectful submission, the

Full Federal Court has held that these are relevant
matters that may be taken into account by the

Minister in determining character - - -

GAUDRON J:	I know that.
MR CASTAN:	That is the way the matter stands at the

moment. He has got a Full Federal Court decision

telling him he is entitled, not compelled of

course, but entitled to take into account, as a

relevant matter affecting character, not likely - -

GAUDRON J: But he may not take them into account, is what I

am saying.

Hell's 16 13/3/92

MR CASTAN:  He may not, but it is being put to him that it

is relevant. The Full Federal Court has said it is

relevant. This argument, and the way in which the

case was dealt with, was put on the basis of

irrelevant considerations and in our respectful

submission, of course he may ultimately find, or he

may take them into account and find that there are
overriding circumstances that mean that these

gentleman should be permitted to come in or one or

other of them. No doubt that is so, but the

fundamental question that is raised and it is, in

our respectful submission, a question of general

importance, there is a question as to whether it is

permissible for the Minister to take into account,

in considering an application by a person to come

into Australia, that some other person, who it is

not said that he knows or knows anything about him

and is not said that he is running his activities

in any context that is linked or alleged to be part

of the activities of the organization, can come for

a conference.

If I may give some examples, with the utmost

respect, Your Honour, one is tempted to consider

the kind of allegations that might be made in
relation to an unpopular political organization

that seeks to have a conference in Australia, where

it might be said, ah, but a person who is a member

of that unpopular political organization, in

Western Australia, has done X,Y and z, not

suggesting that that was part of the programme or

part of the activities of this organization.

Therefore we can take into account on character the

activities of member X in Perth - - -

GAUDRON J:  What I am saying to you, Mr Castan, is that it

might be different if it happens, from a situation

with which we are presently dealing, where you

brought proceedings to try and stop something

happening, when there is no indication of precisely

what it is that will happen in this area.

MR CASTAN: Yes, well, perhaps all we can say, in response

to that, is that we would anticipate, and I would

assume that our learned friends would be saying

that the Minister is entitled to take these matters

into account, not that they will be necessarily

determinative, but the case is here on the basis

that he is entitled to. It is a live and current

issue because these are the matters which it is

said he is entitled to take into account.

Now, of course, one can say now, "Wait until

they are all decided", then start again and then

challenge the decision because he did take this

into account and then run it up through the courts

and go through the Full Federal Court which will

Hell's 17 13/3/92

repeat its own finding again, and then we might

find ourselves back here to finally get this matter

resolved; this, what we would respectfully submit,

is an important question. In our respectful

submission, that is not the appropriate way to deal

with it. The matter is here; it has come from the

Full Federal Court and there are applications still

on foot, and the Minister does have the matters

before him.

I should say that there is at least the

indication that the Minister is going to be - the

way in which the matter was dealt with in the Full

Federal Court and subsequent information, including

letters that have gone from the Department to

applicants since then, suggest that these matters

will be taken into account. It is true,
ultimately, they may not but that is, in our most

respectful submission, to pick up on a hypothetical

possibility, thereby sending this case off and

having to go back round the circle again once those applications are dealt with or disposed of, if they are disposed of negatively.

In our respectful submission, the Court should not deal with the matter in that way if the matter

otherwise raises, as we would respectfully submit

it does, important questions.

The next matter which we seek to take the

Court to is the general question of the level of

the material that the Court is entitled to have

regard to and, in our respectful submission, there

is raised an important question about what might be

termed the quality or content of material that

might be taken into account.

MASON CJ:  Mr Castan, I do not quite understand, at the

moment, why is it that the courts are asked to rule

on these matters in advance of a decision by the

decision maker?

MR CASTAN:  It was proposed conduct, Your Honour, and it was

dealt with on that basis because there was every

indication when the matter came on in the Federal

Court that what was happening was what might be termed a policy decision. There was a

determination, as His Honour Mr Justice Olney

found, to keep these people out regardless, because

they carried a particular name, in effect, and he

expressed views which supported the view that that

was an unacceptable way for the matter to be dealt

with. I should also stress it came on as a matter
of urgency because there were pending applications,

but if the matter was left till the applications

were rejected, then the event that the people had

applied for would have already occurred. As it

Hell's 18 13/3/92

happens there has been a further event planned

which will enable, hopefully, their applications to

be dealt with properly.

MASON CJ: Yes, but it seems to me, by instituting the

proceedings at this stage you have brought all this

on your own head. In other words, you have

succeeded in procuring a judgment of the Full Court

of the Federal Court, but why should this Court

entertain an application before the matter is dealt

with by the decision makers. Why are not all these

arguments, in many respects, arguments that should

be put to the decision maker.

MR CASTAN: Well, in our respectful submission, the matter

came up, as we have said, because there was - in

fact there were proceedings instituted initially

and then terms of settlement were signed and then

it was alleged that the terms of settlement had not

been implemented. The matter was dealt with by

Mr Justice Olney and His Honour found, and properly

so, and I do not think it has been suggested
otherwise by our learned friend, that the matter
was within his jurisdiction under the

Administrative Decision (Judicial Review) Act. In

our respectful submission, if the matter

raises - - -

GAUDRON J: But there were some decisions and there have

been some decisions, there is no doubt about that.

MR CASTAN:  Yes, and those four have been overturned.

GAUDRON J: Yes.

MR CASTAN: There are four decisions which have been made,

have been overturned and have been sent back for

reconsideration.

MASON CJ: Yes.

MR CASTAN:  They are actual decisions, but we do not

complain of them because they were -

GAUDRON J:	You have got them set aside now.
MR CASTAN:	We have got them set aside and they are about to

be reconsidered on a basis which we respectfully

submit is unacceptable and, in our respectful

submission, we should not be put to going back

through another bout of litigation now where they

are going to be reconsidered, as we would

respectfully submit, on a wrong principle, because

what is going to happen now is they are going to be

reconsidered with the Full Federal Court saying,

take into account, what we would most respectfully

submit to this honourable Court, is quite

Hell's 19 13/3/92

irrelevant considerations that Mr Thaller runs an

escort agency and so on. In our respectful

submission that is not either hypothetical or moot

and it is appropriate for the Court to deal with

the issue which, as an issue as we would

respectfully and advisedly put to this Court is a

matter of high principle. There should not be a

situation in which ministers are taking into

account as relevant considerations conduct of a

person who happens to be a member of the same

organization that another person happens to be a

member of. One can think of any number of examples

in the political or social field.

MASON CJ:  I think you have made that point, there is no

need to repeat it.

MR CASTAN:  We say it is important, and given that it is

important, while one can see, yes, as it has turned

out, it has turned out to be decisions that fall

into this category, the jurisdiction is there, we

would respectfully submit and it is appropriate, we

would respectfully submit, for the Court to have

properly dealt with those issues as we have
outlined them.

Now, perhaps I should only say about the material that we do respectfully submit that

Your Honours should take into account, in considering this matter and these general questions, some of the matters that appear at the

bottom of page 22 to 25 in His Honour

Mr Justice Olney's decision, and nothing said by

the Full Court, in our respectful submission, cuts

down any of those findings. What His Honour said

about the material at the foot of page 22 was this:

On any view the "evidence" advanced to support

these assertions -

they are the assertions of the Minister, which were

described at page 22 as "bald assertions" -

(assuming it to be factually accurate) does no

more than establish that -

and he then sets out six points -

a) In 1985 in USA, 125 members of HAMC were

arrested (emphasis added) on State and Federal

drug and racketeering charges.	(Nothing is
said as to any convictions.)

b) In October 1990, after a 23 month

investigation, 14 members and associates of

the Omaha (Nebraska) Chapter of HAMC were

charged (emphasis added) on a variety of

Hell's 20 13/3/92

offences. (Nothing is said as to any

convictions.)

c) In May 1990 a HAMC member in Adelaide was

found to be the proprietor of several escort

agencies. (It is not asserted that to conduct

an escort agency is illegal.)

d) In November 1987, 44 HAMC members in USA

were arrested (emphasis added) on a variety of

charges. (Nothing is said as to any

convictions.)

e) In Canada the HAMC has been identified as

being involved in the importation and

trafficking of drugs, money laundering,

prostitution and dealing in stolen property.

(Nothing is said as to any convictions for
these offences nor is any date mentioned when

the identification occurred.)

f) A former member of HAMC in USA made a

number of accusations against the HAMC

organization in a book published in 1978.
(Nothing is said as to any prosecutions or
convictions flowing from the revelations

contained in the book in the 13 years since

its publication.)

And then His Honour sets out:

It is sought to restrain the Minister from

taking into account the contents of the Joseph
letter and the fact of membership of HAMC in

considering the visa applications ..... because

it would involve

a) taking irrelevant considerations into

account .....

or -

b) an exercise of a discretionary power in

accordance with a rule or policy.

Then His Honour, at the foot of page 24,

expresses his view about the material:

The past conduct of individual HAMC members in

USA and Canada, and the proprietorship of 4

escort agencies in Adelaide by a HAMC member

(to the extent documented in the Joseph

letter) cannot in my view be relevant, in the

absence of any other evidence (and I am told

there is no other evidence), to the question
of whether the Minister should determine that

non-citizen members of HAMC wishing to attend

Hell's 21 13/3/92

the World Run would be likely to become
involved in activities disruptive to, or

violence threatening harm to, the Australian

community or a group within the Australian

community. The suggestion (apparently based

upon what was written by a former American

member in 1978) that the World Run would

provide an opportunity to plan the

organization's international criminal activity

is so fanciful, and so lacking in any factual

basis to support it, that the only inference

that can be drawn is that in October 1991

nothing had changed since the Minister's

decision in May 1991 to exclude non-citizen

HAMC members wishing to attend the World Run,

irrespective of the merits of each particular

case. The inference is also open that the

settlement of the previous proceedings was but
a step along the path of implementing the

policy decision made in May. The department's

conduct has tended to compromise the integrity

of the Minister which it is supposed to serve.

Now, those are strong words; we would

respectfully submit, are properly so found. The

Full Federal Court did not express itself in quite

such strong language but reached the same

conclusion about the inadequacy of the material to

enable the conclusion there reached but,

nevertheless, said, "Well, it can all be taken into

account in relation to character."

Now, in our respectful submission, the Full

Federal Court has failed to consider that material of this kind of itself is so defective, that mere suspicion or speculation of the kind that, in

effect, has taken place here is not a basis on

which to found anything, including the criterion of

"character" as well as the criterion of "likely

harm".

GAUDRON J: But that is a question of weight, is it not?

MR CASTAN: In our respectful submission, in the absence of

the logical connection of some kind, to the

individuals who are the applicants - of some kind -

it is not just a question of weight. It is a

question of relevance. Any more than it is a

question of weight, one could equally say, with the

greatest of respect, "Well, why is it not just a

question of weight or likely harm, because, after
all, if these people are of this kind of character,

then they might be the people who might cause the

harm?"

DEANE J:  What if it had been said that the members of the

Hell's Angels had been charged with 150 crimes

Hell's 22 13/3/92

against racial discrimination laws and that was put

before the Minister, would he not be derelict in

his duty if he did not see it as relevant and make

some inquiries about it?

MR CASTAN: Well, Your Honour has put "members of the Hell's

Angels".	One would need to know a little more than
that.

DEANE J: Well, members of the organization.

MR CASTAN:  Yes, and if they were members of the - one might

need to know where they came from, and when that
happened, and then where was the man coming

from - - -

DEANE J:  One might, and one might find that inquiries led

to the consequence that it would be absolutely

unreasonable to act on the basis of that fact.	But
I would have thought the Minister would be

completely derelict in his duty if he said, "Oh, I
understand they've been involved in all these

charges of all these crimes, but I'm going to treat

that as irrelevant. I'm not even going to find out

about it."

MR CASTAN: In our respectful submission, one needs a link

between the persons who - using the phrase and

saying, "Hell's Angels" is a - - -

DEANE J: Well, I mean, the Minister has not said he is

going to act on that as a basis for his decision. have asked questions about it.

MR CASTAN:	No, his officers have said they intend to put these matters as the matters that the Minister
should include in the matters he relies on. The
court has said that he should take those into
account on character.

GAUDRON J:  Not that he should.

MR CASTAN: Well, they are relevant.

GAUDRON J: That he may.

MR CASTAN:  He may. They are relevant to the question of

character.

DEANE J: But are they not relevant?

MR CASTAN: In our respectful submission, that depends on a

link - - -

DEANE J:  I mean, you say you can explain them.

Hell's 23 13/3/92

MR CASTAN: It depends on the link - whether there is

anything at all said about the individual who is

the applicant, and those persons who are the

persons who committed this. It might depend on the

numbers of the organization. It might be said that if there is an international legal conference to be
held in Sydney, that there are some hundreds,

perhaps thousands of lawyers have committed

criminal offences, who are members of the, we will

say, of a given - I will not even name it, but a

given bar association or were. Now, are we to say

that is relevant in considering the applications

for visas of the current chairman of the American

Bar Association, say?

Now, that just does not work, Your Honour. It

is not relevant to characterize the conduct of

particular persons by reference to some

organizational label and then say, "That will be

taken into account in considering" or "may be taken
into account as a relevant matter when considering

individual applications of those individuals." It

may be, if there is a link established, then it may

become relevant but this is put as the totality of

the material that is going to the Minister. This

is the totality.

MASON CJ:  Now, Mr Castan, we must adjourn, and we have

spent a good deal of time on this case. I do think

you will have to bring your argument to an end in a

short time when we resume at 2 o'clock.

MR CASTAN:  Yes, I will, Your Honour.

AT 1.00 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.07 PM:
MR CASTAN:	There are no further matters which we wish to

add to those matters which have already been put,

if the Court pleases.

MASON CJ:  Thank you, Mr Castan. The Court need not trouble

the respondent.

MR GRAHAM:	May it please the Court.
MASON CJ:	The argument that regulation 4(1) of the

Migration Regulations constitutes, by negative

implication, an exhaustive and exclusive definition

Hell's 24 13/3/92

of what is good character for the purposes of the
public interest criteria concept in the

regulations is incorrect.

Having regard to the present stage which the

visa applications have reached, there being no

decision with respect to them, we do not consider

that it would be appropriate to grant special leave

to appeal to examine the further points which the

applicant seeks to raise.

The application is therefore refused.

MR GRAHAM:  I seek an order for costs, if the Court pleases?

MASON CJ: That is not opposed, Mr Castan?

MR CASTAN:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 2.09 PM THE MATTER WAS ADJOURNED SINE DIE

Hell's 25 13/3/92