MIMIA v Godley

[2005] HCATrans 565

[2005] HCATrans 565

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P11 of 2005

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

KARL WILLY NEVILLE GODLEY

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 11.02 AM

Copyright in the High Court of Australia

MR A.L. CAVANOUGH, QC:   If the Court pleases, I appear with my learned friend, MR J.D. ALLANSON, on behalf of the applicant.  (instructed by Australian Government Solicitor)

MR W.S. MARTIN, QC:   May it please the Court, I appear on behalf of the respondent.  (instructed by M. Rothstein & Co)

GUMMOW J:   You are an honorary Western Australian, are you, this morning?

MR CAVANOUGH:   Well, I debated ‑ ‑ ‑

GUMMOW J:   We just look at your mode of dress.

MR CAVANOUGH:   Yes, well my wig is in my bag, your Honour.  I thought it was a lineball decision.

GUMMOW J:   Do not worry.  Yes, Mr Cavanough.

MR CAVANOUGH: If the Court pleases. We submit that special leave should be granted in this case, principally because the Full Court has gone very wrong on a question of law of general public importance as to the construction of section 501 of the Migration Act. We say that the error was to hold that the Minister has no power to refuse to grant a visa on character grounds under section 501(1) unless the Minister finds positively that the applicant comes within one or other of the four classes of persons referred to in the definition of “character test”, which is set out in subsection (6) of the Act.

GUMMOW J:   How does it work in practical terms with a specific example?

MR CAVANOUGH:   Well, take this very case.

GUMMOW J:   Yes.

MR CAVANOUGH:   Here there was a series of allegations put to the applicant about convictions and about statements, misstatements, problems arising from a restraining order, things of that kind – a whole series of matters.  The applicant had answers for each one that he gave.  They were all considered, but at the end of the day the Minister has to decide whether he is or he is not satisfied that the person passes the character test.  Now, what we would submit is that the Minister is not obliged to come to a positive finding that the person is, if you like, of bad character, to use a short version, before he is empowered to consider the exercise of the

discretion to refuse the visa.  So this is the sort of case where the very issue is significant.  The Minister ‑ ‑ ‑

GUMMOW J:   Do you say the situation has been switched around, as it were, by this interpretation that has been given in the Full Court?

MR CAVANOUGH:   Yes.  Yes, the amending Act was deliberately meant to ensure that the interpretation would be that, if you like, the risk of non‑persuasion was on the applicant, not on the Minister, and the Full Court has turned it around, as your Honour says, to the exact opposite.  Indeed, Justice Lee said in terms, “Well, nothing’s changed in the law despite the 1998 amendment”.  Well, we just say that cannot be right.  The amendment is as plain as can be of its own terms designed to put the risk of non‑persuasion on the applicant, not on the Minister.  It is really as simple as that.

GUMMOW J:   I think we will call on Mr Martin.

MR MARTIN:   May it please your Honours.  There are two issues ‑ ‑ ‑

GUMMOW J:   We do not, and cannot, at the moment decide of course who is right and who is wrong.  Is there a point here?  You say there is not any point.

MR MARTIN:   No, with respect, your Honours, but if there is this is an inappropriate vehicle because the case was decided below on two grounds, both at first instance and on appeal, not only the ground of construction but also the ground of procedural fairness.  Now, the decision was quashed on both of those grounds.  Unless my learned friend can make good the attack on the procedural fairness decision, then the issue with respect to construction is moot, and that is why this is an inappropriate vehicle.  Could I take your Honours to that point ‑ ‑ ‑

GUMMOW J:   Can you demonstrate that to us?

MR MARTIN:   Certainly.  Would your Honours go please to page 56 of the application book?  On that page your Honours will see an extract from the belated reasons of the Minister, provided some time after and accepted below as admissible against interest only.  Your Honour will see in paragraph 9 of those reasons a finding to the effect that:

Mr Godley committed offences under Australian law by making false or misleading statements to DIMIA.

That is a contravention of the provision of the Act which penalises the making of knowingly false statements to the Department.  Then in paragraph 10:

Mr Godley’s provisions of false or misleading statements to DIMIA constituted offences that I consider serious under subparagraphs 2.6(c) . . . 

I found that the repetitive nature of Mr Godley’s false and misleading statements to DIMIA constituted a serious disregard of the law.  I therefore considered this conduct to be of a serious nature –

So there are clear and unequivocal findings of the commission of criminal offences unsustained by any conviction in respect of those offences.  Mr Godley was not put on notice that he was at risk of a finding to the effect that he had committed those offences.

That matter was dealt with in the decision of the Full Court at pages 72 and 73 of the application book under the heading “Procedural Fairness”.  Now, there their Honours refer to the ground, express in paragraph 75 of their reasons, the view that in circumstances where the Minister proposed to make a finding of criminal conduct not sustained by a conviction, it was incumbent upon him to put the applicant upon notice of that fact so that submissions could be put inter alia dealing with respect to the critical question of mens rea, that is to say the guilty mind that was required to be found in order to sustain that conclusion ‑ ‑ ‑

GUMMOW J:   Now, what do you say about Mr Cavanough’s submission on the point at page 107?

MR MARTIN:   If I could just go to that page, your Honours.

GUMMOW J:   Under the heading “Procedural Fairness”.

MR MARTIN:   Yes.

GUMMOW J:   It does seem to have been dealt with rather lightly in the Full Court.

MR MARTIN:   With respect, the lightness is in the submissions because there is a vital distinction between on the one hand the applicant, Mr Godley, being aware of a general proposition to the effect that he had made – that he had omitted to state matters fully to the Department and, on the other hand, the proposition that he had committed offences contrary to the Act.

Now, the highest the Minister can point to in terms of putting Mr Godley on notice of the likelihood of that finding is the fact that he was given a policy paper that refers to the Minister’s view about the seriousness of contraventions of the Act, but that of course misses the point, with respect, because Mr Godley needed to be told, “It is under consideration that you might be found to have committed these offences at these times by reason of these matters” and given an opportunity ‑ ‑ ‑

CALLINAN J:   He might have had a defence to a criminal charge.

MR MARTIN:   Well, indeed, and he may well have had a defence to that finding, that very serious finding, by the Minister.  He was deprived of the opportunity of putting it by the way in which the Minister and his officials conducted the case.  Now, if we are right on that and, with respect, we must be, that is a very strong argument ‑ ‑ ‑

CALLINAN J:   Would it have been any different, Mr Martin, if the Minister had said in his reasons, “I was concerned that he seemed to be misleading ‑ ‑ ‑

MR MARTIN:   It would.  It may well ‑ ‑ ‑

CALLINAN J:    ‑ ‑ ‑ and deceptive, and I took that into account as one aspect of bad character”.

MR MARTIN:   It may well be different because then it could be said with some force that he had notice of that proposition, but in the context of the significance of the commission of criminal offences in the statutory provision, to find, as the Minister has found, the commission of serious offences in contravention of the Act, there is a clear inference from the terms of the Minister’s reasons, to which I took you, that that finding ‑ ‑ ‑

CALLINAN J:   It really turns on the use of the word “offence”, does it not?

MR MARTIN:   Yes, but there is, with respect, no doubt from the Minister’s reasons that that is what he found, and there is equally a clear inference to the effect that that finding was instrumental in the decision, when one looks at the strength of the language used in the Minister’s statements of reasons at page 56.

Now, as I suggest, if, as we say, that is sufficient to dispose of the Minister’s determination, then any nice point that my learned friend might want to raise with respect to section 501 is entirely moot and, therefore, would not need to be addressed by this Court. Now, with respect, these issues of procedural fairness do not give rise to issues of general importance. They are idiosyncratic to this case and turn upon its particular facts and circumstances. The facts are not in contention, nor, with respect, are the principles of law. In our respectful submission, they were unexceptionally applied by the Full Court.

We also submit, your Honours, that the issue that my learned friend has raised with respect to section 501 has insufficient prospect of success to justify the grant of leave. Four judges of the Federal Court have, in our respectful submission, quite unexceptionally construed this section. The problem with the Minister’s construction is that it entirely omits reference to the concluding words of subparagraph (6), which are to the effect that unless one of those paragraphs operates, the applicant satisfies or passes the character test.

Now, in that context it is hardly surprising that all four judges below concluded that unless there has been a determination by the Minister to the effect that one or other of those paragraphs applies, the person passes the test.  That is the clear and express language of the section.  All that subsection (1) does, upon which the Minister appears to place so much reliance now – contrary I must say to directions that have been given to the Tribunal and the Department – all that subsection (1) does is affect the evidentiary onus so that once facts are established, which might enliven an adverse determination, subsection (1) provides that the applicant bears the evidentiary onus of adducing any explanation or other material that the Minister might properly take into account in making a determination, but it is, with respect, drawing a very long bow indeed to say that subsection (1) entirely obviates the need to make any determination of character.

That is essentially what the Minister’s submission comes down to, that the Minister can simply abdicate her responsibility to make any determination at all on the ground of character, with the result that the applicant then fails to get the visa, to which they were otherwise entitled. 

So, your Honours, in our respectful submission, there are two reasons why leave should be granted in this case.  The first is that the procedural fairness point ‑ ‑ ‑

GUMMOW J:   Leave refused?

MR MARTIN:   I am sorry, should be refused.  I am sorry, your Honour.  Jumping from one side of the Bar table to the other today.  The first is that the point is moot, unless the procedural fairness finding can be disturbed, and that finding is unexceptional and gives rise to no issues of general importance.  The second is that the construction of the section provided by

all four judges below is, with respect, unexceptional and plainly correct.  If it please your Honours, those are our submissions.

GUMMOW J:   Thank you.  Mr Cavanough, what do you say about the natural justice point?

MR CAVANOUGH:   Two things.  It arose very tangentially only and almost in passing before Justice Lee initially, very difficult to tell from his Honour’s reasons whether he was really finding a procedural fairness problem or not, that the emphasis had been on Justice Lee’s concern that there was a real distinction between conviction of an offence and the conclusion that an offence had been committed, and that is what really was the essence of that debate before Justice Lee, hence the form of the notice of appeal, and then again it was again just very tangentially dealt with in the Full Court.

The fact is if one looks at the material that there is the clearest indication that this applicant, an accountant by profession, knew precisely what was being alleged against him.  He knew that these matters were being put to him as serious matters leading, or likely to lead to a finding of bad character.  Indeed, as to the matter of mens rea, he himself said at application book 14:

I can assure you that there was no deliberate attempt on my part to mislead the Department of Immigration.

He knew precisely what the issue was.  He says several times – he says it again on the next page, “was not trying to mislead anyone”.  Well, that could be accepted or not accepted, but it was a matter for the Minister.  There was no aspect on which he did not have a full opportunity to comment.  Indeed, he said, “I had the Minister’s direction and I read it and re-read it”, and that is where it was ‑ ‑ ‑

CALLINAN J:   But the Minister has said he committed an offence.

MR CAVANOUGH:   The Minister asserted, in effect, by giving him the direction ‑ ‑ ‑

CALLINAN J:   The Minister has found him guilty, regardless whether he had a defence or not.

MR CAVANOUGH:   Yes, and that was in a sense the concern of Justice Lee, but it was not a ground on which the decision was set aside either by Justice Lee or by the Full Court.

GUMMOW J:   I know, but we are at the special leave level now.  We are at the level of special leave.

MR CAVANOUGH:   Yes, indeed.

GUMMOW J:   We have to look at it fairly globally.

MR CAVANOUGH:   Indeed, but we have viable grounds, indeed we would say unanswerable grounds in relation to both of the points on which the decision was set aside, and there is a very important issue that affects the Minister, all of the tribunals and all of the delegates in terms of the ‑ ‑ ‑

GUMMOW J:   We understand that.

MR CAVANOUGH:   So it would be a real shame because of this tangential matter ‑ ‑ ‑

GUMMOW J:   Shame for your client.

MR CAVANOUGH:   Yes, indeed, and for the administration of justice and for the administration of the Act ‑ ‑ ‑

GUMMOW J:   I understand that.

MR CAVANOUGH:    ‑ ‑ ‑ if, because of this tangential matter, leave were refused.  In my respectful submission, there is a complete answer to it, there was no unfairness.  The Minister may or may not have been, if you like, doing something everyone would agree with in relation to taking the view that these things amounted to offences – that is a matter for argument, I understand that.  But there was no procedural unfairness in the sense that the applicant was not given every opportunity to know that the Minister may well come to that view.  Indeed, he was told in terms.  If the Court pleases.

GUMMOW J:   Thank you, Mr Cavanough.

There are insufficient prospects of success in disturbing the finding of lack of procedural fairness to warrant a grant of special leave. That being so, this is not an occasion for considering the construction of section 501 of the Migration Act 1958 (Cth), the other ground canvassed in the application for special leave. However, in mentioning section 501 we are not to be taken as indicating any view as to the proper construction of that section. Special leave is refused with costs.

AT 11.18 AM THE MATTER WAS CONCLUDED