Hussein and Minister for Immigration and Multicultural Affairs
[2000] AATA 1087
•11 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1087
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1409
GENERAL ADMINISTRATIVE DIVISION )
Re AHMED HUSSEIN
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date11 December 2000
PlaceSydney
Decision The decision under review is set aside and the Minister is directed to exercise his discretion in favour of Khaled Mahmoud El Abboud by granting him a class TR, sub-class 676, Tourist (Short Stay) Visa.
................[J Block]...................
Deputy President
CATCHWORDS
IMMIGRATION – visitor's visa - refusal on character grounds - whether the visa applicant failed to meet the character test – whether evidence as to bad character cannot be disclosed to the applicant pursuant to a declaration under section 503A(3) of the Migration Act – where that evidence is more aptly characterised as suspicion, rather than evidence.
Migration Act 1958 - sections 499, 501, 503A
Customs Act 1901 - section 234
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Yong v Minister for Immigration and Multicultural Affairs [2000] FCA 1772
Jiang v Chief Executive Officer of Customs [2000] FCA 1378
JCT Wong v Kelly [1999] NSWCA 439
REASONS FOR DECISION
Deputy President J Block
The Applicant seeks the review of the decision dated 14 July 2000 by the Respondent refusing the grant of a class TR, subclass 676 Tourist (Short Stay) visa, to his father-in-law, Khaled Mahmoud El Abboud ("Mr El Abboud").
(a) The Applicant was self-represented, while the Respondent was represented by Mr Leonard Leerdam of Sparke Helmore, solicitors.
(b) The Tribunal had before it the T Documents and also the Supplementary T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with certain exhibits as follows:
Exhibit A1 is a certificate entitled "Clean Record" issued at Tripoli on 23 November 2000, indicating that Mr Abboud has no criminal record in Lebanon; Exhibit A1 consists of a document in Arabic and another document which is an English translation.
Exhibit R1 is an Instrument of Delegation and Authorisation dated 13 June 2000 issued under the Migration Act 1958 (the "Act") and Migration Regulations 1994.
Exhibit R2 is a declaration by Thomas Irvine, a delegate of the Respondent, under section 503A(3) of the Act.
The Supplementary T Documents were not numbered sequentially after the T Documents; accordingly references to the T documents are preceded by the letter "T", while references to the Supplementary T Documents are preceded by the letters "ST".
(c) Oral evidence was given by each of Mr El Abboud by telephone link to Lebanon, and in person by the Applicant, his wife Salam Hussein ("Salam") and his mother Nada Hussein ("Nada"). An interpreter in the Arabic language assisted all of the witnesses except the Applicant; it may be noted that Nada and Salam both indicated some degree of fluency in English. Mr El Abboud understood a little English, but clearly needed the services of an interpreter.
(a) Mr El Abboud's evidence lasted (inclusive of cross-examination and re-examination) for some two and a half hours; there was at one stage a short interruption when the telephone link failed. It should be noted in general terms that his evidence, given in this form, proved to be unsatisfactory in certain respects for a number of reasons. In the first place the interpreter was apparently from a Gulf country, and his Arabic differs (so I was informed) from Arabic as spoken in Lebanon. This resulted in a number of interjections by the Applicant in order to point out that evidence by Mr El Abboud was not being translated in full and in some cases that it was being translated inaccurately. In the second place, the telephone link to Lebanon was not as clear as might have been desirable. In the third place Mr El Abboud often answered a question by a response which was both lengthy and in many cases not relevant or referable to the question asked. Requests for short answers, or at least pauses to enable interpretation to occur, were often not heeded.
(b) The picture which emerged in respect of Mr El Abboud, in accordance with his evidence, (as fleshed out by the evidence of the Applicant), indicated a man who can aptly be described, at least in relation to Australia, as colourful, and in colloquial terms, as a "wheeler-dealer". He has three wives, referred to respectively as his Lebanese wife, his Romanian wife and his Egyptian wife. He has seventeen children and numerous grandchildren. He is now in his early fifties, having been born in 1949. Although he does not come of wealthy stock, he has at any rate since 1989, become very well-off indeed. He has a number of business interests, including a nightclub and restaurant (and these terms were sometimes used interchangeably), a used car business, a business dealing in real estate, and a horse business. The precise nature of the horse business was never made clear; it seems to relate to racehorses and probably a racing stud; this inference arises from a statement by Mr El Abboud that the horse business prospers to the extent that the horses win "prizes".
(c)Mr El Abboud travels frequently, and in particular to the Ukraine and Romania where he hires women for his nightclub. Although described initially as singers, these women are in fact dancers and striptease artists. The Tribunal was informed by the Applicant that in Lebanon a striptease artist does not apparently strip to the same extent as she might do in some western countries. As to why Mr El Abboud would not use an agency (referred to in his evidence) for this purpose, and why it is necessary for him to go personally to these countries for this purpose was not made clear. Mr El Abboud usually carries on his person large quantities of cash together with a belt which contains gold coins (described as English pounds or English lira), the value of which (depending, naturally, on fluctuations in the price of gold) is in the region of US$4000. Mr El Abboud does not, according to the Applicant, altogether trust banks, although he has at least two banking accounts, and maintains stores of cash on his person, and also in safes in the houses of each of his Romanian wife and his Lebanese wife.
(d)According to the Applicant, Mr El Abboud enjoys using his wealth. He spends extensively, and in particular on gold and including gold jewellery. He is very generous to his children and grandchildren and others. When he comes to Australia (and he has visited Australia seven times since Salam's marriage to the Applicant in January 1995) he buys expensive presents for his Australian grandchildren, plays the poker machines at the casino and generally tries to enjoy himself. His philosophy is that having made money he wants to use it and not merely to "watch it".
(e)The Applicant and Salam are in fact first cousins; Salam is a daughter of Mr El Abboud's Lebanese wife, whose sister is the Applicant's mother. The marriage between the Applicant and Salam was arranged to some extent by Nada; it is she who went to Lebanon to offer for Salam, the Applicant having made it clear that such a match would be acceptable. Mr El Abboud would prefer that his children marry and remain in Lebanon; however he consented to Salam's marriage in Australia to the Applicant and made it clear that he would visit his daughter and her family often, and would be available whenever required. He has been accompanied on his trips to Australia on three occasions by his Lebanese wife, and on other occasions by Salam's full siblings. Details of his visits to Australia are set out in the Supplementary T Documents.
(f)Mr El Abboud emphasised in his evidence that he would never under any circumstance breach Australian law, not even (as he put it) if he "were paid one million dollars" to do so. There was a particular emphasis in this context on Australian law. Page 110 of the T Documents is a bank statement in respect of Mr El Abboud's account with Banque Libano-Francaise in Tripoli. An entry dated 22 October 1999, in an amount of approximately 3,500,000 Lebanese lira (equivalent to about A$3,000) was the subject of some considerable debate. I am prepared to accept that this amount was a deposit, resulting in a balance at that date of 100,000,000 Lebanese lira. This aspect was relevant in relation to the interview at the embassy referred to in the next succeeding paragraph.
(g)Pages 124 to 126 of the T Documents contain a record of an interview by Mr El Abboud in the Australian embassy on 14 July 2000. That record is reproduced as follows:
CAN YOU TELL ME WHAT YOU HAVE DONE ON YOUR PREVIOUS VISITS TO AUSTRALIA ?
I have visited my daughter's house and visited relatives. Nothing else. I also have several brothers in law and nephews. Most importantly to visit my daughter.
WHY HAVE YOU VISITED FREQUENTLY, AND FOR VERY SHORT PERIODS OF TIME ON EACH OCCASION ?
I go to visit my daughter and I have 17 kids and I can't leave my work. One time I left for 3 days. She invited me once for lunch in Australia as a joke, and I went. At that time, I applied through the Embassy in Damascus and they gave me a visa.
WHAT IS YOUR OCCUPATION ?
I own a nightclub and I sell and buy cars. I also own horses. The nightclub is called the Lido in Tripoli. The licence is for a nightclub and a restaurant.
WHAT IS YOUR MONTHLY INCOME ?
Minimum of 10000USD a month. It's only an estimate, but some months I might sell more cars than others, other months business is better in the nightclub. It depends, I can't give an accurate breakdown.
YOU HAVE TRAVELLED TO AUSTRALIA 7 TIMES IN THE LAST 5 YEARS, HOW CAN YOU AFFORD ALL THESE TRIPS ?
I thank God for the money I have. I am very well off. I have provided financial assistance to all my children and they have as much money as they need. I have as much money as I like. I have taken all my children to Australian (sic) and my wife has been there twice. I have 3 wives. I have no other reason for going to Australia. I wouldn't break Australia (sic) law. I wouldn't even take medicine with me. I just take gifts and perfumes.
YOU SAY YOU EARN A MINIMUM OF USD10000 A MONTH, THE EVIDENCE OF FUNDS YOU PROVIDED SHOWS A BANK ACCOUNT FROM OCTOBER LAST YEAR WITH ONLY 3402381LL IN IT (ABOUT AUD3000). YOU ALSO PROVIDED A NEWLY OPENED BANK ACCOUNT WITH USD30000 FROM OCTOBER LAST YEAR. WHERE DID THIS USD30000 COME FROM?
I deal in business, so I buy and I sell. Not all the money is in the bank. I can bring evidence of my business dealings. I had problems with the bank and withdrew all the money and placed it in a new account.
WHY DOES YOUR LL BANK ACCOUNT NOT SHOW YOUR CLAIMED INCOME OF USD10000 A MONTH?
It is not indicated in my statement. It is not necessary for me to put money in the bank. If you give me an hour and a half, I can go to Tripoli and give evidence. I also deal in gold. I invest it. I carry a pocket belt with me when I travel and I take gold with me. I declare it. I've been to Romania, the Ukraine and Cyprus. I purchase gold wherever I go. This is my nature. Whatever I've got, whether it be gold or money, I take it in case something goes wrong. I've never sold something in Australia. If they paid me 1,000,000 dollars to sell something illegally, I wouldn't do it. I don't need to.
WHAT WOULD YOU SAY, IF I SAID THAT WE HAD INFORMATION ON YOU THAT INDICATES YOU MAY NOT BE OF GOOD CHARACTER?
I thank God I've never had any problems. I have a blank history. I'm 52 years old. One time someone set me up many years ago, but it was resolved. I was innocent.
WHAT WAS THE SETUP?
They accused me of pimping (prostitution). It went to court and I was vindicated (found innocent). I have the papers to prove this, they are in the car.
I AM CONSIDERING REFUSAL OF YOUR VISA APPLICATION ON THE GROUNDS THAT YOU DO NOT PASS THE CHARACTER TEST, BASED ON INFORMATION I HAVE WHICH IS PROTECTED AND CANNOT BE GIVEN TO YOU. DO YOU HAVE ANY COMMENTS TO MAKE REGARDING THIS OR ANY INFORMATION YOU WOULD LIKE TO PROVIDE TO DEMONSTRATE YOU ARE OF GOOD CHARACTER?
If I was of bad character, they would not have renewed my Lebanese passport and would have put me in prison. The only negative thing I've had is what I have already told you about, which I was innocent. If any other people are telling negative things against me, that is their problem. Whether it is true or not, is another issue. My presence in Australia previously, let anyone put anything against me, I have entered and departed Australia clean. I can put forward all my documents with regard to my business and my dealings. The Australian Government can make their own decisions. Even here in Lebanon, I am prepared to do the same thing. People would cause problems for others because of jealousy.
WHY WOULD PEOPLE HAVE REASON TO BE JEALOUS OF YOU?
There are a lot of nightclubs in Tripoli and people try to take the nightclub away from me. I am in a good financial situation and people are envious. People are also envious because I do things without expecting anything in return, eg. giving money to the poor. I have no problem with the Embassy sending people to Tripoli to ask about my reputation.
Mr El Abboud was cross-examined at some length as to the fact that, in answer to a question about his bank statement, he replied that he would not sell anything in Australia. That answer was in fact a non sequitur. The embassy was asking Mr El Abboud about his financial resources, and not about sales.
(h)It is not possible to say that the evidence of Mr El Abboud was in all respects satisfactory; it was on occasions illogical and irrelevant, and it was not always comprehensible. That this was so may be due, to some extent, to the difficulties to which I adverted earlier in these Reasons. Frequently an answer would be punctuated by a "naam, naam, naam" (yes, yes, yes) coupled on occasions with an expression of gratitude to God for his wealth.
The Respondent based his decision, it would seem, on the confidential information to which I will refer later in these Reasons. In the absence of that confidential information, it would appear unlikely that the Respondent's decision would have been the same.
(j)The nature of the Mr El Abboud's business dealings and the manner in which he uses cash and gold might perhaps raise some eyebrows if this occurred in Australia. But Mr El Abboud resides in Lebanon where business practices may well be different. It is possible (although I emphasise that this is mere conjecture only) that there are relevant tax considerations, but which have nothing whatsoever to do with Australian tax.
(k)Page 13 of the Supplementary T Documents is a rather blurred copy of an incoming passenger card signed by Mr El Abboud on 3 December 1998 when he last entered Australia on a visitor's visa. The right hand top box contains questions numbered 1 to 11 as follows:
Are you bringing into Australia:
1.Goods that may be prohibited or subject to restrictions such as medicines, steroids, firearms, weapons of any kind or illicit drugs?
2.More than 1125ml of alcohol or 250gm of tobacco products?
3.Goods obtained overseas or purchased duty or tax free in Australia with a combined total price of more that AUD$400, including gifts?
4.Goods / samples for business / commercial use?
5.AUD$10,000 or more in Australian or foreign currency equivalent?
6.Food of any kind, traditional medicines or herbs?
7.Plants, parts of plants, wooden articles, seeds, bulbs, straw, nuts?
8.Animals, birds, insects, fish, parts of animals – live or dead, [?] with animals, meat, skins, feathers, bones, shells, coral, animal specimens, animal medicines, biological specimens or organisms?
9.Soil or articles with soil attached?
10.Have you visited a farm outside Australia in the last 30 days?
11.Have you been in Africa or South America in the last 6 days ?
The copy of that card at ST13 is almost certainly not complete as it omits the "no" boxes which presumably appear to the immediate right of the "yes" boxes. I therefore do not know what "no" boxes were ticked. But as to the "yes" boxes:
(i) Mr El Abboud appears to have ticked question 2 with a "yes"; he had brought three cartons of cigarettes for his own personal use and a bottle of whisky which he presented to his son-in-law, the Applicant. The cigarettes were in excess of his allowance; however, the letters on the form inserted by customs indicate (so Mr Leerdam informed me) that customs did not consider the duty should be exacted. The meanings of other notations by customs (in relation to question 6 and either question 9 or question 10) were not explained.
(ii) Mr El Abboud also ticked question 6 with a yes. In evidence he said that he did not bring any "food, medicines or herbs" with him; it appears that the "yes" tick may have been related to the whisky.
Mr Leerdam drew particular attention to question 3 which required incoming visitors to disclose and declare "goods obtained overseas . . . with a combined total price of more than AUD$400, including gifts". He focussed on the fact that on this trip, (although not on his previous trips) Mr El Abboud was wearing his belt containing gold coins.
Mr El Abboud's evidence was that, having little English, he sought assistance from a person in the aircraft, variously described as the captain, a member of the Gulf Air staff, and the passenger seated next to him, and disclosed that he did have gold coins, but did not want to disclose their whereabouts (ie. in the belt). It is important to note that the gold coins accompanied Mr El Abboud into Australia and were taken by him out of Australia when he departed; they were not brought in as gifts. Mr El Abboud used his gold coins as a backup store of wealth to be used in case of need. And moreover Mr El Abboud did seek assistance from someone in the aircraft. He said that he received a pamphlet in Arabic explaining his obligations; as to what he understood was not clear.
Mr Leerdam contended that Mr El Abboud's failure to declare the gold was a breach of section 234 of the Customs Act 1901 ("Customs Act"). It is possible that this is so; but if it is, it cannot be a serious breach. Mr Leerdam cited two cases in respect of breaches of section 234 of the Customs Act 1901 and being Jiang v Chief Executive Officer of Customs [2000] FCA 1378 and JCT Wong v Kelly [1999] NSWCA 439. The relevance to these cases is unclear; in both cases smuggling of a large order was involved and in both cases the court seems to have taken the view that the relevant proceedings were administrative or civil rather than criminal.
When one analyses question 3, it is clear that, literally interpreted, it must catch most visitors to Australia. Each and every visitor is surely wearing clothes, jewellery (perhaps) and a watch (inter alia) bought in his or her home country; the aggregate value of these items alone (leaving aside his or her suitcase or suitcases) would surely exceed AUD$400. It is not likely that a visitor to Australia would have with him or her goods purchased outside Australia taking into account all of the various items mentioned, and perhaps including electronic equipment such as mobile phones, the value of which is less than AUD$400. What then is question 3 intended to achieve? It may be directed at gifts, although the words used are "including gifts". The literal meaning of the words in question cannot be intended; to do so would bring about ludicrous and unintended results. It is impossible to contemplate each and every visitor listing all of his or her possessions bought overseas. In any event there was uncontradicted evidence before me that Mr El Abboud did seek to disclose the gold.
(l)Question 5 requires the disclosure of currency of A$10,000 or more in Australian currency or any foreign currency equivalent. The Applicant gave evidence that Mr El Abboud usually had a large amount of currency (generally US$) on him; as to what "large" is in this context was not clarified and there was no evidence as to the amount actually possessed by Mr El Abboud, who was not questioned on this aspect.
The evidence of Salam and Nada was, as might be expected, largely an endorsement of Mr El Abboud as a kind, generous and law-abiding man; that evidence cannot advance the matter very much. Salam did say that of all of Mr El Abboud's children, she was his favourite.
(a) The Applicant is a large and affable young man who handled the proceedings remarkably competently. When at school he had two years of legal studies; however he obtained a poor HSC which (so he said) disqualified him for further study. He worked for some years, and in particular as a dock worker; however he has been unemployed for the past two years, and both he and his wife draw social security. He said that he could not consider manual work any longer because of an arthritic condition. At a later stage when asked why he did not then work in a clerical capacity, he said that he suffered from migraines; in a rather impassioned closing submission he described himself as a proud Australian. He too spoke of his father-in-law, Mr El Abboud, as a kind and generous man. He said that he would not take financial assistance from his father-in-law and had refused the offer of a flat in Lebanon. He said also that when his wife visited Lebanon recently, he borrowed from his brother to finance her costs of travel and is now repaying his brother through periodic payments. As to how the Applicant and his wife can live on social security and repay borrowings for an overseas trip (and there seemed to have been a number of overseas trips) was not apparent. It may be noted that the Applicant's denial of financial support by Mr El Abboud is contradicted, at least to some extent, by a statement by Mr El Abboud in his interview at the embassy, referred to in paragraph 3(g) of these Reasons, in which he stated:
I have provided financial assistance to all my children and they have as much money as they need [emphasis added by the Tribunal].
(b) It was the Applicant who provided some parts of the word picture of Mr El Abboud to which I referred earlier. He plainly gets on well with his father-in-law; they go to the casino together and generally have a good relationship. Mr El Abboud's lavish generosity to his grandchildren (and also Salam) when he comes on trips is clearly appreciated. It was the Applicant that pointed out that in Lebanon to succeed in business is not something which is easy to achieve. It was also he that said that Lebanese people are often reluctant to trust banks and that they have a faith in gold as an alternative store of value.
(a) Section 503A of the Act reads as follows:
503A Protection of information supplied by law enforcement agencies or intelligence agencies
(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:
(a)the officer must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and
(b)an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:
(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.
Note: Authorised migration officer and gazetted agency are defined by subsection (9).
(2) If:
(a)information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or
(b)information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);
then:
(c)the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and
(d)if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.
(3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.
Note: Commonwealth officer is defined by subsection (9).
(4) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3), the officer must comply with such conditions relating to the disclosure by the officer of the information as are specified in the declaration.
(5) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer).
(6) This section has effect despite anything in:
(a)any other provision of this Act; and
(b)any law (whether written or unwritten) of a State or a Territory.
(7) To avoid doubt, if information is divulged or communicated:
(a)in accordance with paragraph (1)(a) or (b); or
(b)in accordance with a declaration under subsection (3);
the divulging or communication, as the case may be, is taken, for the purposes of the Information Privacy Principles set out in section 14 of the Privacy Act 1988, to be authorised by law.
(8) If any Act (whether passed before or after the commencement of this section) provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise.
(9) In this section:
authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.
Commonwealth officer has the same meaning as in section 70 of the Crimes Act 1914.
Note: A Minister is not a Commonwealth officer.
gazetted agency means a body, agency or organisation that is:(a)responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and
(b)specified in a notice published by the Minister in the Gazette.
Note: For specification by class, see section 46 of the Acts Interpretation Act 1901
(b) The Respondent's solicitors, by letter dated 25 November 2000, and addressed to this Tribunal, submitted (in a sealed envelope) certain information, and being the information relied upon by the Respondent in respect of the decision under review; that information is referred to in these Reasons as the "confidential information".
(c) In respect of the confidential information:
(i) A delegate of the Respondent has declared, pursuant to section 503A(3) of the Act, that it must not be disclosed to the Applicant or any other person. At a Directions Hearing held on 23 November 2000, I issued directions as follows:
(a) The confidential material will not be disclosed to the Applicant or to any other persons;
(b) The Applicant and his legal advisers (if any) will be obliged to vacate the hearing for so long as the confidential material is dealt with or referred to, and including:
(i) when the confidential material is dealt with in any manner whatever in the course of the evidence stage of the hearing;
(ii) when the confidential material is referred to during the closing arguments stage of the hearing;(c) Auscript will be directed to record, in relation to the confidential material, any evidence referable to the confidential material and also any reference to it in the closing argument; however Auscript will be directed not to release the transcript to any person at all (other than the Respondent) except with the prior written consent of the Tribunal; the Tribunal will as a condition of the grant of any such consent give detailed directions as to those parts of the transcript which may not be released;
(d) The Tribunal will not in any decision refer to the confidential material in any manner which would breach section 503A(3) of the Act;
(a) It was in these circumstances that the hearing was conducted in such a manner that the Applicant was not present when the confidential information was referred to. It is of course prima facie odd that in proceedings of this nature, the Applicant should not be made aware of the evidence upon which the decision under review was based; but for the specific provisions of section 503A of the Act, to proceed in this manner would clearly offend against the principles of natural justice. However, section 503A(3) of the Act is clear in its terms; accordingly the confidential information must not be disclosed to the Applicant or any other person. Inevitably then, the Applicant cannot be present when the confidential information is dealt with. It is for this reason in particular that I directed that the transcript must not be released to the Applicant, except on the basis set out previously.
(b)In respect of section 503A(3) of the Act, I must not refer to the confidential information itself or to any submissions made in reference to it. Suffice it to say that the confidential information indicates a suspicion on the part of certain authorities as to certain conduct. If that suspicion were supported by evidence, the position might be very different. But it was not; acting on instructions and no doubt for good and proper reasons, Mr Leerdam advised me that the Respondent did not intend to offer any evidence.
This matter was heard on Tuesday, 5 December 2000, and took up the whole day; it was adjourned shortly before 6.00pm. At Mr Leerdam's request it was adjourned until Friday 8 December 2000 to enable Mr Leerdam to consult with the Respondent as to whether the Respondent wished to reconsider his position and to offer evidence in support of the confidential information. Mr Leerdam subsequently telephoned my associate in order to inform the Tribunal that the hearing would not proceed on 8 December 2000 because the Respondent did not intend to offer evidence in support of the confidential information. In another telephone call to my associate, Mr Leerdam also drew my attention to the decision of the Federal Court in Yong v Minister for Immigration and Multicultural Affairs [2000] FCA 1772.
(a) This then is a convenient point at which to consider the decision in Yong. The decision by Moore J is brief and is set out in full as follows:
1 This is an application for judicial review of a decision of the Minister for Immigration and Multicultural Affairs ("the Minister"), made on 1 August 2000. In that decision the Minister refused to grant the applicant a Business Visa subclass 457 as an Independent Executive. The applicant had earlier applied for the visa on 24 June 1999. The Minister refused to grant the visa in the exercise of powers conferred by s 501 of the Migration Act 1958 (Cth) ("the Act"). Relevantly that section permits the Minister to refuse to grant the visa because firstly, he or she reasonably suspects that the applicant does not pass the character test, and secondly, he or she is satisfied the refusal is in the national interest. The character test is prescribed in s 501(6) and decrees that a person does not pass the character test if the person has certain specified attributes.
2 The evidence in these proceedings indicates the Minister formed the reasonable suspicion by reference to information that was protected information by operation of s 503A of the Act. In the result, the decision record of the Minister, while referring to the material in the sense of identifying that such material exists, contains nothing which enables one to glean, other than inferentially (and then only generally), what the material was in substance.
3 In the application for review the applicant relies on two grounds specified in s 476. The first is that the Minister's decision involved an error of law, being the ground specified in s 476(1)(e). The second is that there was no evidence or other material to justify the making of the decision, being the ground specified in s 476(1)(g). That latter provision has to be considered together with s 476(4) which identifies the two circumstances in which the no evidence ground arises. While the applicant appeared to prevaricate during the course of the hearing as to which of the paragraphs in subsection (4) is relied on, I am prepared to proceed on the basis that it is both. Indeed, the error of law relied on by the applicant raises substantially the same point. It is that the decision of the Minister does not disclose the basis on which the opinion was formed on which the operation of s 501 depended. That is, the reasonable suspicion of the Minister.
4 Counsel for the applicant referred to what are well settled principles of administrative law reflected in the observations of the High Court in George v Rockett (1991) 170 CLR 104 at 112:"When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was a point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v Anderson [1942] AC 206. That requirement opens many administrative decision to judicial review and precludes the arbitrary exercise of many statutory powers."
5 The difficulty the applicant confronts in these proceedings is that the material on which the Minister based his decision is, by operation of s 503A of the Act, unavailable to the applicant. It is also, at least prima facie, unavailable to the Court. That renders it, in a practicable sense, impossible or at least extremely difficult for the applicant to demonstrate that either pars (a) or (b) of s 476(4) are made good. That is, it makes it either impossible or extremely difficult to establish that there was no evidence or other material before the Minister, assuming that a particular matter needed to be established for the purposes of the decision. It is also impossible or extremely difficult for an applicant in proceedings such as these to establish the facts that were considered by the Minister and on which the decision was based, and to then demonstrate that those facts did not exist.
6 Given that the material that was before the Minister is not known to the applicant or to the Court, the task of the applicant has been a difficult one. Nevertheless the applicant bears the burden of making good the grounds alleged. The applicant has not demonstrated either an error of law or that there was no evidence or other material to justify the making of the decision. The application must fail. Accordingly, I propose to order that the application is dismissed and that the applicant pay the respondent's costs.
(b) It is of particular relevance to note that Moore J found that there were reasonable grounds upon which the Respondent was entitled to find that the Applicant in that case failed the character test and that Moore J cited in support of his decision observations of the High Court in George v Rockett (1991) 170 CLR 104, namely that reasonable grounds require the existence of sufficient facts.
(c) In this particular instance the confidential information contains simply and only a brief statement of mere suspicion, and that statement is in any event hearsay. There were no facts whatsoever before me as to the basis upon which that suspicion was formed; it is for this reason in particular that I refer to it as a "mere suspicion".
(d) In Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, the Full Federal Court said at pages 689 and 690 (per Deane J):
It is however of general validity in the case of a statutory tribunal which is bound to act judicially. Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory tribunal bound to act judicially, the well established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 760, 763, 766; Ashbridge Investments Ltd. v Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326; and see per Stephen J, Ex parte Jordan (1898) XIX NSWR 25 at 29. Implicit both in Diplock LJ's conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it (see, Commissioner of Police v Tanos (1958) 98 CLR 383 at 396 cited with approval by Lord Wilberforce in Wiseman v Borneman, supra, at 318; Twist v Randwick Municipal Council (1976) 12 ALR 379 at 382-3; Salemi v Minister for Immigration and Ethnic Affairs, supra, at 5, 19, 45, 51). (Emphasis added by the Tribunal)
Section 503A of the Act does indeed abolish one rule of natural justice, namely that the Applicant is entitled to know the evidence against him. But it does not abolish the requirement as to probative material and the fact that a mere suspicion will not suffice.
It was in these circumstances that Mr Leerdam found himself constrained to argue that Mr El Abboud had in relation to his landing card in December 1998, committed breaches of the Customs Act. Let me assume that there were breaches, although as indicated previously I doubt whether there were. Even if there were breaches they could not in my view have been very serious, and certainly not breaches which would warrant anything other than a fine of an administrative nature. Customs had the entry card in its possession and made notations on it; customs did not prosecute Mr El Abboud or indeed refuse him entry into Australia. Notwithstanding that his cigarettes (3 cartons) were in excess of the amount allowed for this purpose, they did not even exact any duty.
Mr El Abboud has visited his daughter on seven occasions over the years since she married the Applicant in Australia. The evidence before the Tribunal was that whenever he applied for a visitor's visa he stipulated a time period, and then rigidly adhered to that time period even though the visa extended to a period of greater length. Of course there was another factor and that is the fact that he needed to return to Lebanon to manage his extensive business interests.
It is my view that the confidential information consisting as it does of a mere suspicion unsupported by any facts, cannot be accorded any weight. In Yong, Moore J would presumably have had before him facts sufficient to support the suspicion; I was furnished with no facts at all; Yong is thus distinguishable. The burden referred to by Moore J at paragraph 6 of Yong must, insofar as it is relevant, be held to have been discharged. The evidence before the Tribunal submitted by or on behalf of the Applicant was not, as I have indicated, faultless; nevertheless it indicates that Mr El Abboud is a Lebanese businessman with extensive business interests which have brought him material wealth and which he uses in part to benefit his large family. There is no evidence which would suggest that his nightclub operation is not above board, even if it does involve the import of Ukrainian and Romanian striptease artists. The interview in the embassy, to which I have referred to in paragraph 3(g) of these Reasons, does not evidence any wrongdoing. On the evidence before me, Mr El Abboud is a family man, and about whom there is no evidence (notwithstanding contentions by the Respondent to the contrary) of criminal conduct or criminal associations. Accordingly, the Mr El Abboud passes the character test, and it is unnecessary for me to consider part 2 of Direction 17 (Visa Refusal and Cancellation under section 501).
It follows then that in all the circumstances the decision under review must be set aside, and the Respondent must grant a short term visitor's visa to Mr El Abboud.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: ............[Marcus Ryan].......................................
AssociateDate/s of Hearing 5 December 2000
Date of Decision 11 December 2000
Self-represented Applicant
Solicitors for the Respondent Sparke Helmore, solicitors
1
1
0