Minister for Immigration and Multicultural Affairs v White P74/2000

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P43 of 2000

B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
LEGENG JIA
Respondent

Office of the Registry
Perth No P77 of 2000

In the matter of –
An application for a Writ of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

Ex parte –
LEGENG JIA
Prosecutor

Office of the Registry
Perth No P74 of 2000

B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
TE WHETU WHAKATAU WHITE
Respondent

Office of the Registry
Perth No P81 of 2000

In the matter of –
An application for a Writ of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

Ex parte –
TE WHETU WHAKATAU WHITE
Prosecutor

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 2000, AT 10.03 AM

(Continued from 24/10/00)

__________________

GLEESON CJ: Yes, Mr Tracey.

MR TRACEY: If the Court pleases. May I deal with some matters that were raised yesterday afternoon and that we had undertaken to look at overnight. The first related to the statutory mechanism by which appeals are brought from decisions of the AAT in matters of criminal deportation and I had said that that occurred under the Administrative Appeals Tribunal Act, although I did say it was section 43. It is 44 and that avenue is specifically preserved by section 485(2) of the Migration Act, which makes it plain that there is nothing in Part 8 of the Migration Act that would have the effect of closing that avenue.

KIRBY J: That was 485(2), is it?

MR TRACEY: Yes, your Honour.

KIRBY J: Thank you, Mr Tracey.

MR TRACEY: Secondly, I confirm that the appropriate reprint that contains the provisions of sections 501 and 502 at times relevant for this proceeding is Reprint No 6. The other matter was the question of whether a report by the Minister to the Parliament under section 502 following the exercise of his power under that section to issue a certificate that excluded a person from the review avenue was not a disallowable instrument for the purposes of the Acts Interpretation Act.

We have looked at that overnight and I think we can say confidently to your Honours that it is not a disallowable instrument. It is simply a device whereby a report is made to the Parliament and it is then a matter for the Parliament what it does about it but it cannot by resolution, as it might with a regulation, for example, set it aside. There may be other mechanisms but that is not one of them.

KIRBY J: It would always be within the power of the Parliament to override a ministerial decision in some way and then, if necessary, by a statute.

MR TRACEY: There are no doubt procedural devices, your Honour.

KIRBY J: As you pointed out yesterday, questions can be asked and politically it can become part of the dialogue in the Parliament.

MR TRACEY: May I then respond, comprehensively I hope, to questions that were directed to me yesterday afternoon by your Honour the Chief Justice and Justice Callinan concerning the construction of section 502. The submissions we make in that regard are these, that under section 501(2) the Minister is required to determine whether, at the time of his or her decision, he or she is satisfied that a person is, that is, presently, not of good character. Now, in that context we submit that good character refers to the enduring moral qualities of a person as distinct from reputation or something of that kind.

GLEESON CJ: You mean disposition. This is the old argument that crops up in the area of the criminal law and the law of defamation where the word “character” sometimes means disposition and sometimes means reputation and sometimes, perhaps, means something in between.

MR TRACEY: Yes. Your Honour, it is, I suppose, ultimately a judgment about disposition but based on an assessment of what may be said to be a person’s enduring moral qualities.

GLEESON CJ: It is a judgment about disposition being made by a Minister, not by a priest.

MR TRACEY: No, that is so, your Honour, and it is a matter that the Act requires him to be satisfied about, so it is very much a matter in the Minister’s purview and ‑ ‑ ‑

GLEESON CJ: But if a judgment about a person’s disposition is to be made by a politician accountable to Parliament, does that tell you anything about the basis upon which you might expect such a judgment to be made?

MR TRACEY: Yes, it does, your Honour. It tells you that the Minister is the person making that judgment because Parliament has determined that he is in the best position to make a judgment about whether a person’s disposition is such as to impact adversely on the Australian community.

KIRBY J: But he has to search for a character. It is not enough that there has been a conviction. It has to be something more. The Parliament could have enacted a provision that said, “Where there is a conviction of more than one year” or something of that kind, but it did not. It required the Minister to go in search of something that is rather more elusive, namely, a person’s character.

MR TRACEY: Yes.

GLEESON CJ: Well, if by character you mean disposition, we are told that the devil himself does not know the mind of man. What is it that you would expect a Minister to look to to determine an individual’s disposition?

MR TRACEY: The legislation directs him to only two matters: past criminal conduct or general conduct. If he looks at past criminal conduct, then what he is looking at is the nature and the gravity of those offences.

CALLINAN J: Mr Tracey, it is significant, perhaps, that it is put disjunctively too, that if the Minister decides that the best indicator is past criminal conduct then that is enough.

MR TRACEY: Yes, your Honour.

CALLINAN J: It is either or. The Minister is not then obliged in any way at all to look to the person’s general conduct. Is that right?

MR TRACEY: That is right, your Honour, and could I just say in that context that what he is looking at is conduct, not necessarily convictions. He, in our submission, is looking at conduct which is in the breach of the criminal law of the country in which it is committed, whether or not it is followed by charges or convictions.

CALLINAN J: Well, it happens sometimes, does it not, that people are deported before they are charged?

MR TRACEY: Yes, your Honour, or somebody may come to Australia to avoid prosecution in another country.

CALLINAN J: But if I can just get back to the other point, I must say at first sight it seems to me to be quite significant that it is put disjunctively.

MR TRACEY: Yes.

CALLINAN J: And that if the criterion in a particular case is the person’s past criminal conduct, then that might well be the end of the matter, that there is no need to search for the person’s general conduct which might embrace a concept of good character in one of the senses to which the Chief Justice has referred.

MR TRACEY: Yes. Our submission is that the Minister is entitled, indeed, is bound to look at past criminal conduct, to analyse it and to ask himself the question whether or not that renders the person of bad character in a sense of having a disposition to act in a way that may threaten or harm the Australian community.

GLEESON CJ: That is why I would like to just not go too quickly past this concept of character. Let me take a case that has nothing to do with the present case but that does not strike me as being fanciful. Suppose the person in question is alleged to be a person who, in another country, has planted bombs and otherwise attempted to kill people in authority but has never been tried or convicted and somebody says to the Minister, “That person has engaged in criminal conduct and is not a person of good character”. Suppose the person then responds to that allegation by saying, “Any bombs I’ve planted and any shots I’ve fired were for the purpose of overthrowing a tyrant who is oppressing the people of my country”. In that situation, what is the inquiry that the Minister has embarked upon when asking whether that is a person of good character?

MR TRACEY: Your Honour, it is the sort of inquiry that makes it plain that it is important that a Minister be undertaking the task, rather than a delegate or some other public official.

GLEESON CJ: Well, it sounds like a highly political decision.

MR TRACEY: Indeed, and the Minister will make a judgment as to whether that claim has merit in the sense of the political environment in which the activity has occurred, the likely effect of that person’s presence in Australia in the wake of such conduct and that judgment will be one that focuses on the person’s disposition. Is that a person who, if he or she comes to Australia, is likely to engage in similar conduct?

GLEESON CJ: Now, let me take another example. Let us suppose that the past criminal conduct was alleged to have occurred during the Second World War and the person who is the subject of the accusation says, “I engaged in that conduct as part of a struggle to liberate the people of my country”. What is the sort of test that the Minister applies in dealing with that accusation in deciding whether that is a person of good character?

MR TRACEY: Well, in addition to the nature and quality of the act, he would also be bringing into account the antiquity of the alleged offence, but all for the purpose of making a judgment about present disposition. Now, again, there will be political judgments to be made.

GUMMOW J: What does “political” mean, in that expression?

MR TRACEY: “Political” I use in the sense of a person in elected office making a judgment about the nature of events that have occurred in another country or, indeed, within this country.

GLEESON CJ: Well, it might have a consequence for the regime of accountability that you would expect to be applied to the decision.

MR TRACEY: Yes, your Honour, and we place some weight in our submissions in relation to the allegation of bias against the Minister on the fact that the legislature has conferred power of this kind on a person who it must know is the sort of person who will take all those sorts of things into account.

KIRBY J: Yes, but not all countries confer these powers on Ministers ‑ that runs both ways ‑ but where they do, the Minister must conform to the statute and the statute here does not, as it were, say the Minister may take these decisions because of criminal conduct or because of general conduct. They are merely the gateways to making what is the critical decision, which, as you point out, is present character and therefore they posit the possibility that you can have quite serious criminal conduct and yet that a person may be judged to be of good character, or of character sufficient to allow the person to stay. So that they are preconditions but they are not necessary. Rather, they are necessary but they are not necessarily sufficient.

MR TRACEY: But it hinges on the Minister’s satisfaction as to those matters.

KIRBY J: That has to be reasonable satisfaction.

MR TRACEY: It does have to be reasonable.

KIRBY J: It is not unreviewable.

MR TRACEY: But it is a pretty broad brief that is available to the Minister and certainly one that would allow him to have regard to the sorts of matters to which reference has been made in the exchanges in the last few minutes.

GLEESON CJ: But “character” – I have to confess that “character” is a word whose meaning is not self‑evident, as far as I am concerned, and there are a lot of cases in the area of criminal law and defamation law and otherwise that demonstrate the different meanings it can take on. It has to be related to the issue being determined and here the issue being determined, as I would understand it, is whether a person should be permitted to stay in Australia.

MR TRACEY: Yes, your Honour.

GLEESON CJ: We are not asking whether a person is fit and proper to have a licence to manufacture poker machines. We are not asking whether a person is fit and proper to associate with the gentlemen of the turf. We are asking whether the person’s character is such that that person ought to be permitted to remain in Australia. Now, in that context, what kind of disposition would lead to a conclusion that a person should be permitted to remain or should not be permitted to remain?

MR TRACEY: Your Honour, a disposition that would make it possible even that that person might act in some way in this country to the detriment of its citizens.

HAYNE J: How can that be in light of 501(1)(b)? Are we to gain any assistance in construing 501(2) from the disjunctive requirements of 501(1)(b) concerning satisfaction about future conduct, “likely to engage in criminal conduct’, would “vilify”, would “incite discord”, would “represent a danger”?

MR TRACEY: Your Honour, those sorts of things, some of them, may be done without breach of the criminal law. Some of them may not. Violence and threats of violence in the latter category obviously, but one could create discord by perfectly lawful public statements.

HAYNE J: Subsection (b)(i) and (b)(iv) would seem, on their face, likely to encompass, perhaps even to be restricted to, future criminal behaviour. Indeed, (b)(ii) and (b)(iii) may well involve criminal offences as well but leave those about.

GLEESON CJ: So you are not asking whether he would do it again. That is covered by (b)(i).

MR TRACEY: Yes, and a person may be in Australia without any criminal history but the Minister may have reason to believe that at some point in the future he might, for the first time, commit a criminal offence.

HAYNE J: But what light, if any, do you say that throws upon what we are to understand by (2)(a)?

MR TRACEY: We would submit they are not mutually exclusive, your Honour. The Minister might be satisfied by looking back at past criminal conduct, which he is entitled to do under (2)(a), that someone has a propensity to commit crimes.

HAYNE J: But are you saying that the inquiry in (2)(a) involves any predictive element? Must the Minister form a view about what will happen in the future or is the inquiry wholly backward looking?

MR TRACEY: Your Honour, it could be either. It could be wholly backward looking or it could be backward looking coupled with a judgment of what that past history teaches is likely to be the future conduct. At that point there would be overlap between (a) and (b). Now, the Minister would not be precluded, in our submission, in forming a view as to whether a person is not of good character along the lines that, having regard to what this person has done in the past, it is possible that that action will be repeated because he is a person of bad character who is likely to do such an action.

GLEESON CJ: But the concept of character has to be related to entitlement to remain in Australia or as part of the Australian community, has it not?

MR TRACEY: Yes, your Honour.

GLEESON CJ: You might say that a person is a bad character because he is mean with money or because he tells lies. Could you exclude a person from staying in Australia because he is an habitual liar?

MR TRACEY: Your Honour, in theory, yes, but your Honour will bear in mind that it does not follow simply because the Minister has formed a judgment as to the fact that somebody is not of good character that that person must be removed from Australia because there is the discretion in 501(1) which would ‑ ‑ ‑

GLEESON CJ: But there aspects of a person’s character that most people of the community might think would justify a judgment that a person is of a good character or a bad character that would have nothing to do with fitness to remain as part of the Australian community. The person would not be a risk to anybody else.

MR TRACEY: Your Honour, that has to be so and that person, the Minister may determine, by reason of past bad conduct, not to be of good character, but elect to allow them to remain. But that would not foreclose a judgment that that was a person of bad character.

KIRBY J: The structure of the section seems to me ‑ the opening gambit in subsection (1) is “The Minister may refuse”, and “may” imports a discretion, and then there is a second point of judgment, which is the satisfaction of the Minister, so he has to be satisfied. So that has to get through those two gateways. You would do the satisfaction first. You would ultimately get to a discretion. Then the subsection (1) incorporates by reference in (a)(ii), which is talking of a present thing, is “of good character” ‑ as you pointed out, that is in the present tense ‑ and (b) talking of “would” is a future tense, and therefore the Minister can either take the view he is not a good character, having regard to the qualifying considerations, present tense, or that he would not do these various things or be likely to do them as is in (b). Is that not the structure of the section?

MR TRACEY: Yes, your Honour, but, in our submission, that does not preclude overlap because, based on past criminal conduct, the Minister may consider that there is a real likelihood that future criminal ‑ ‑ ‑

KIRBY J: That is when he is exercising the 501(1)(a) authority and not (b). They are alternatives. You see there is an “or” at the end of (a).

MR TRACEY: Indeed, but my point, your Honour, is that they may overlap in a given case.

KIRBY J: I see the preconditions of past conduct and general conduct, which are things in the past, may overlap but (1) is focusing the Minister’s attention on the present, he is of good character, and that is where the question that was asked of you about, say, offences in the Second World War would be relevant.

MR TRACEY: Yes.

KIRBY J: The mere fact that there has been nasty conduct or bad general character, that is a precondition to get into the exercise but it is scarcely going to stamp, or it may not stamp, present character, which is what the focus of the Minister’s attention has to be on and that underlines again the point I made at the beginning. It is not enough that people, if it is a subsection (2) power that is being exercised, should have had convictions. There has to be an attention or should have done bad conduct. It has to be on present character.

MR TRACEY: Your Honour, I accept that and could I respond to your Honour and the Chief Justice in this way? It is consistent with that analysis that the Minister may determine that he is satisfied that somebody, by reason of past criminal conduct, is of general bad character. He may not have enough information to allow him to be satisfied that that person might, in the future, engage in further criminal conduct in Australia, but he may take the view, “I don’t want to take the risk in the interests of the Australian community”.

KIRBY J: But he can only do that if he comes to the conclusion that he is of bad character.

MR TRACEY: That is so, your Honour.

KIRBY J: He is not at large here. This is a very serious and significant power.

MR TRACEY: Yes, I accept that, your Honour, but it is that satisfaction based on his understanding of that person’s past criminal conduct.

KIRBY J: He has to keep a distinction, it just seems to me, from the structure of the section. The “past criminal conduct” or the past “general conduct” are the preconditions but they are not enough. You have to say that, having regard to them, that there is stamped on this person as at present a character which is so serious that they will not have other rights that would accord to them. They are immediately removable.

MR TRACEY: Your Honour, that is a consequence.

KIRBY J: Well, it is a very serious consequence.

MR TRACEY: But not an inevitable consequence. It is in the further discretion of the Minister.

KIRBY J: That is right. It is the precondition. It is the step on the way.

MR TRACEY: Yes, it is, your Honour, but it is a judgment formed on the basis of past criminal conduct, so that the Minister is entitled, in our submission, to come to the view that somebody who has committed a serious offence – in the Jia Case, as your Honour knows, it was rape and other associated sexual offences and in White it was manslaughter – that a person who has done that in the recent past is not a person of good character.

KIRBY J: It is not enough that they have done it. There still has to be the formulation of the opinion as to present character and that rather seems to me from the structure of the section to oblige information to be given and consideration to be given as to a more general inquiry, namely, not just the past conduct but matters that touch upon character which are – I mean, people can lapse. We see this all the time in criminal appeals. People who are otherwise of good character can commit serious criminal offences because they have diverted from their character but their character may still be a fine character – being tempted, fallen victim to greed or something.

GLEESON CJ: Well, suppose a man is tempted to kill his wife and he does that and he has never done anything wrong before and he is never likely to do anything wrong again. Could he be excluded on the basis of section 501(2)?

MR TRACEY: Yes, your Honour.

KIRBY J: What if he did it in order to save her unbearable and terminal pain? That is the point I am making. It is not enough to have the offence or the conduct. You have to look to the character.

MR TRACEY: Your Honour, one looks, as we have submitted, at the nature of the offence and the Minister may well take the view, in the sort of example your Honour has just posited, that the person concerned is not, by reason of having committed that criminal act, of bad character. That would be an open finding as far as this legislation ‑ ‑ ‑

GLEESON CJ: That raises the other question that you were asked yesterday and that is, “What is the meaning of this expression ‘criminal conduct’?”.

MR TRACEY: Yes, your Honour. Our submission in that regard is that it is conduct in breach of the criminal law of the country in which it is committed, whether or not it is followed by charges or convictions.

GLEESON CJ: Breach of what law?

MR TRACEY: Of the criminal law.

GLEESON CJ: What do you mean by the expression “the criminal law”? The Motor Traffic Act?

MR TRACEY: Yes, your Honour, it certainly could include that, although there are degrees, of course, and there is the world of difference between somebody who is picked up for speeding five kilometres or so above the prescribed limit and somebody who is driving in a drunken fashion and ‑ ‑ ‑

GLEESON CJ: Well, is the first an example of criminal conduct? That is what I want to know.

MR TRACEY: Well, in the normal use of the terminology, yes, your Honour; it is legislation that proscribes conduct and imposes a fine in breach.

KIRBY J: Any criminal conduct in that country. What about adultery? It is not only in Saudi Arabia that that is a serious offence. Is that going to mean that because the person has been guilty of past criminal conduct in some other different legal system that the Minister could be satisfied the person is not of good character – is not of good character.

MR TRACEY: Your Honour, the Minister will, as we have submitted, have regard to the nature, the gravity, the antiquity of the criminal conduct and form a judgment as to whether that says anything about the person’s present ‑ ‑ ‑

GUMMOW J: It has to be a reasonable judgment. It was cited a long while ago in the Hetton Case in this Court in 1944 that when it says “is satisfied” it means is reasonably satisfied.

MR TRACEY: Yes, your Honour. He could not do it for capricious reasons or things of that ‑ ‑ ‑

GUMMOW J: It is not just capricious.

MR TRACEY: He could not make a judgment that defied reason, I accept that, but subject to that, your Honour, we submit that the Minister has wide scope for making this judgment. He may form the view that an offence committed in another country that is unknown to Australian law might render someone of general bad character because it indicated the willingness of that person to breach that country’s law, but he would not be bound to come to that conclusion and it would not be unreasonable if he did.

GLEESON CJ: It has been held in the context of bad reputation and the law of defamation that a criminal conviction, to use Lord Denning’s words, stands in a class of its own. I have in mind Goody v Odhams PressLtd (1967) 1 QB 333. What, if any, special significance does a conviction for a serious criminal offence have in the context of subsection (2)?

MR TRACEY: Your Honour, it goes to the question of the gravity of the conduct for the purpose of forming the judgment that the Minister is called on to make and we would submit that the more serious in the hierarchy of criminal offences judged by the penalties that are attached to those offences, then the more likely it is that the Minister will form the judgment that that person is of bad character.

KIRBY J: Is it exactly analogous, the use of the expression here, to, say, a simple defamation case, where the worst that can happen to you is that you would lose and you have got to pay a lot of costs? Decisions in this kind of matter, as is repeatedly said in the cases, have to be taken very seriously because ‑ I am not saying it is necessarily so in the case of Mr Jia or Mr White, but in some cases an incorrect decision can be a matter of life and death, in the sense that a person being returned to another country can suffer very severe consequences. That is the whole point of this area of jurisdiction.

MR TRACEY: Your Honour, we accept, of course, that serious consequences may attend an adverse judgment by the Minister under section 501 but, your Honour, we do not submit that that has any bearing on the proper construction of 501.

KIRBY J: Why, because this is a precondition to a step that excludes a person and requires that they be returned to their country of origin?

MR TRACEY: But, your Honour, that may be at one end of the spectrum an absolute boon to the person concerned. They might be perfectly happy to return home.

KIRBY J: If it were they would be jumping at the boon. These cases only come here if they are resisting.

MR TRACEY: Yes, your Honour, that is so, but that does not assist in the task of construing the provision. The provision would apply whether or not the person would have been happy to go home or whether the person desperately did not want to go home. So that that, with respect, in our submission, does not throw any light upon how one goes about construing section 501. What one does is look at the words that the legislature has chosen to use, and we submit they are fairly clear, that a judgment is to be formed having regard to past criminal conduct.

KIRBY J: Could you just remind me of a factual matter. I take it Mr White does not claim to be a refugee, but did Mr Jia claim to be a refugee?

MR TRACEY: Your Honour, I think not but, yes, I am told he did unsuccessfully, your Honour.

KIRBY J: But the section can, in principle, apply to the case of claimants for refugee status? The Minister can, as it were, telescope the procedure and remove a person from Australia by reason of this decision in cases where claimants apply for refugee status. Is that correct or not?

MR TRACEY: Yes, your Honour. If it were the case that somebody had applied to be recognised as a refugee here and whilst here had committed a criminal offence, then these provisions could be brought into play.

KIRBY J: Therefore, if we are looking at contextual matters, we would have to at least keep in mind the possibility that in some cases ‑ it may be a minority I do not know ‑ you could have the situation that the section has to be construed and the Minister’s discretion exercised, having regard to, potentially, very serious consequences for the person who is the subject of it. It is not just a matter of going home to New Zealand. It is a matter of perhaps going to some of the oppressive States from which people seek shelter in this country.

MR TRACEY: Your Honour, they are issues that the Convention itself addresses. A country to whom application is made is not obliged to accept somebody who is a refugee if that person has engaged in serious criminal conduct in the country of origin. So that it is a matter that the Convention itself in Article 33 addresses, so that it would be brought into account in that context as well, because the Minister is bound to apply the Convention definition of refugee and act consistently with it.

GLEESON CJ: Mr Tracey, can I ask you a question about the wider legislative background to this?

MR TRACEY: Yes, your Honour.

GLEESON CJ: We are here concerned with cancellation of a visa on the ground that a person is not of good character. Do you have to demonstrate in some way that you are a person of good character to get a visa in the first place?

MR TRACEY: Yes, your Honour. There is a character test that attaches to most visas.

GLEESON CJ: And what is the character test that is applied?

MR TRACEY: If your Honour will bear with me. It is in the regulations.

GLEESON CJ: You can come back to this later if you would prefer.

MR TRACEY: Yes. I am told, your Honour, it is in the fourth schedule in paragraph 4002, but it may be convenient to return to that.

GLEESON CJ: If you would not mind. What I would like to know, in other words, is whether or not there are any other statutory provisions or regulations relating to good character that might throw some light on the meaning of that expression in section 501.

MR TRACEY: Yes, your Honour, I will certainly return to that.

KIRBY J: You gave an answer to the Chief Justice as to your best definition. Are there any holdings or opinions in the Federal Court that are helpful to ‑ ‑ ‑

MR TRACEY: Yes, your Honour, and I am about to take the Court to them because in part they are supportive of the submissions I have made and in part they are against us, and, your Honour, the two cases ‑ I mentioned Irving (1996) 68 FCR 422 yesterday. The other one is Minister for Immigration v Baker (1997) 73 FCR 187. They were on neither set of lists so we have copies for the Court.

GLEESON CJ: Thank you.

MR TRACEY: Your Honour, the Irving Case, as the Court will recall, had to do with the person who was a holocaust denier who wished to come to Australia and the Minister refused him a visa and he sought to review that decision in the Federal Court and he failed at first instance and then an appeal was brought to the Full Court. It is in that case that the court through Justice Lee examined the issue, firstly, of what meaning ought to be attached to the words “good character” in section 502 and the Court will see at 431 onto the top of 432 the origin of the enduring moral qualities approach to the construction. The case, however, is against us on the question of examination of whether the person has reformed in the period ‑ ‑ ‑

GLEESON CJ: Mr Irving was held to be a person lacking enduring moral qualities, was he?

MR TRACEY: Well, the Minister had taken that view and the court said that that was open to it. They were convictions in Europe, your Honour, they were not Australian convictions.

GLEESON CJ: I see weaknesses or blemishes in character come into consideration.

MR TRACEY: Yes. Now, it is interesting, your Honour, in response ‑ ‑ ‑

GLEESON CJ: This power would be a very appealing power to some people to exercise, seeking for weaknesses or blemishes in character.

KIRBY J: May be that is a reason why it has to be exercised very carefully.

MR TRACEY: Your Honour, there were the sorts of considerations – could I direct your attention, for example, to 426 between E and F, because Mr Irving’s counsel in that case referred to the offence which had been committed in West Germany, which was the offence of holocaust denial, and it was argued that that was irrelevant because there was no equivalent law in Australia and that we here value freedom of speech somewhat more than was apparent in Germany at the time and the argument was one that was resolved in a particular way by the Minister and the court held that whilst other views were open, this one was, and that therefore the Minister had not erred.

GLEESON CJ: What exactly were Mr Irving’s blemishes of character that were concluded as ‑ ‑ ‑

KIRBY J: This was not done under that provision of the Act, or supported under that provision of the Act, which permits the Minister to take into account the fact that it will upset the Australian community?

MR TRACEY: No, your Honour. If your Honour goes to the bottom of page 425, you will see that the offence was:

“defaming the memory of the dead”, contrary to s 189 of the Criminal Code of the Federal Republic of Germany ‑ ‑ ‑

KIRBY J: No, but I am saying the Minister did not exercise his powers here under 501(1)(b)(iii) and cite discord in the Australian community or a segment of that community.

MR TRACEY: No, I do not think so, your Honour.

KIRBY J: It was only done under 501(2)(a)?

MR TRACEY: Yes, your Honour, that is so.

GUMMOW J: It was just a criterion of the grant of the visa, was it not?

MR TRACEY: Yes, this was a refusal of the visa.

GUMMOW J: Yes, it appears at page 423. Mr Irving had been deported.

MR TRACEY: He had been deported from Canada.

GUMMOW J: Yes, and Germany too, had he not?

MR TRACEY: Yes, I think that may well be right.

HAYNE J: So much appears at page 425F, “expelled” from Germany, “deported from Canada”, “warrant for his arrest in Austria”, “refused entry to Italy and to South Africa”.

MR TRACEY: Yes, your Honour, and all that because he was, in his public utterances, a holocaust denier.

GUMMOW J: But the regulation they were construing, which is set out at page 423, says:

“For the purposes of these Regulations, a person is to be taken not to be of good character if –

he “has been deported”. So end of case.

MR TRACEY: Well, from other countries?

GUMMOW J: Yes.

MR TRACEY: Yes, your Honour.

KIRBY J: So this is just deportation and it does not seem to have anything to do with character, does it?

MR TRACEY: No, your Honour, because there had been that conviction in Germany.

KIRBY J: I see…..But it says he “is taken not to be of good character if” he “has been deported from another country”.

MR TRACEY: Yes.

KIRBY J: So you do not get into the question of what is good character. This is peculiar statutory definition.

MR TRACEY: Yes. Your Honour, there were two applications. What your Honour says applied to the first application but, as your Honour will see at the top of 424, there was a second application in ‑ ‑ ‑

KIRBY J: Is not the first enough, if he has been deported? You do not get to the second.

MR TRACEY: Well, your Honour, that was the criterion that applied at the time of the first application.

HAYNE J: But the actual decision seems to be that recorded at page 424G:

the Minister, concluded that he was not satisfied that the applicant was a person of “good character” and he refused to waive compliance with this criterion

that the applicant be of good character. That seems to be the decision in issue, is it not?

MR TRACEY: Well, your Honour will see that the forerunner of 502, which was 180A, was relevant to the decision linked to the public interest criteria which attached to the grant of a visa, and they are the ones that your Honour the Chief Justice was asking me about earlier. What I have got to check and see is whether they were still in this form ‑ I think they were ‑ at the time, but your Honour will see the linkage in Regulation 4001(2) back to 502:

An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit.

So that there is a linkage from the regulations back to those criteria in 502.

KIRBY J: Now, is this one of the cases that is for you or against you?

MR TRACEY: Well, it is partly for us, your Honour. It supports us in so far as our submissions relating to the proper construction of the words “good character” are concerned. It is against us on the question of whether intervening reformation has a bearing on the decision as to whether somebody is of “good character”.

KIRBY J: How could it not be, given that you conceded earlier that you take into account the fact that the past conduct or criminal conduct may be well in the past?

MR TRACEY: Well, your Honour, it can. That does not turn on the question of whether there has been intervening reformation. All it means is that the offence occurred so long ago that the Minister may form the view that it is not indicative of a present bad character and he can come to that view without having to look at anything that might be urged in favour of the applicant about good deeds or good ‑ ‑ ‑

KIRBY J: Would you deny the relevance to character as at present of reformation and of good deeds and of other things that show that whatever happened in the past, having regard to how long it was in the past and so on, has been lived down? The Minister does not allow that people can live down their offences?

MR TRACEY: Your Honour, he did in the cases that are presently before the Court because of the decisions that we are now looking at, but our submission is that he was not obliged to, that what he was required to focus on was the past criminal convictions and make a judgment about them, no more, no less.

KIRBY J: Well, that is one view. The other is that he must focus on the present character, which is what the Parliament has laid down.

MR TRACEY: Well, he may come to the view that looking at the past criminal conduct, it does not assist him to form a judgment about present character, but that is not the same thing as saying that he is obliged to look at things that occurred in the intervening period that may go to reformation but, your Honour, this ‑ ‑ ‑

CALLINAN J: Why can he not confine himself, having regard to the structure of the subsection, simply to past criminal conduct?

MR TRACEY: Well, that is what we say he should do, your Honour.

CALLINAN J: Well, he may not necessarily perhaps should do, but may do if he wishes, because that is what the statute says he ‑ ‑ ‑

MR TRACEY: Well, indeed, that is our submission.

KIRBY J: You support that? So you just read the words “is of good character” out of the statute, even though Parliament has taken the trouble of putting them in?

MR TRACEY: No, with respect, your Honour, it does not. What it requires the Minister to do is to determine whether, having regard to past criminal conduct, the person is of ‑ ‑ ‑

KIRBY J: Having regard to, take them into account. They are not determinative, that the focus is not on past conduct or criminal convictions, it is on character, present character.

MR TRACEY: Your Honour, present character as judged by past criminal conduct. Now, it may well be that the Minister looks at past criminal conduct and says, “That tells me nothing, one way or another, about present character”, and therefore he is not satisfied that the person is of bad character, but he can do that without looking at any reformation that may have occurred in the intervening period.

CALLINAN J: The Minister can make a decision within, and exclusively within, subsection (2)(a)(i). Is that right?

MR TRACEY: Yes, your Honour.

CALLINAN J: And if he does, he may choose, if he wishes, as a sole criterion, past criminal conduct?

MR TRACEY: Yes, your Honour.

CALLINAN J: That is what the statute, it appears to me at first sight, to say.

MR TRACEY: With respect, we agree, and that is our submission.

CALLINAN J: That may be the definition of “good character” or otherwise if the discretion is being exercised under 2(a)(i) and nothing else. Is that right?

MR TRACEY: That is so, your Honour. Now, as I say, the Full Courts in these two cases are against us and I would simply draw the Court’s attention to a short passage in Justice Davies judgment in Irving at 425, just above D, where he said:

If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed.

CALLINAN J: Well, why does it have to be “will”? Why can it not be “may”?

MR TRACEY: Exactly, your Honour. We say it is open but he is not bound.

KIRBY J: Well, presumably it is acting reasonably. You have agreed that it requires the Minister to act reasonably.

MR TRACEY: Yes, your Honour, but reasonably in performing the task mandated by the statute. Can I then go to Baker’s Case. Baker is an example of a matter getting to the Federal Court via section 44 of the Administrative Appeals Tribunal Act and it has got passages in it that are supportive of our submissions and some that are plainly against. Can I deal quickly with the ones that are supportive. In Baker the Full Court at page 197 adopted the enduring moral qualities approach to the construction of the word “good character” that had been adopted by Justice Lee in Irving and to that extent it is supportive of our submissions. Similarly, at page 194B the court said that:

“past criminal conduct” cannot be read down to refer only to past conduct the subject of criminal convictions.

And a little lower down adjacent to C:

We think it is clear that, by contrast with these provisions, section 501(2)(a) is concerned with a person’s conduct – either “general conduct” or conduct of a more particular kind, described as “criminal conduct”. It is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character.

So to that extent this judgment further supports the submissions that we have made. However, it is against us on the point that has been most recently debated, namely, the reference to reformation. Could I take the Court, please, to ‑ ‑ ‑

CALLINAN J: Well, what about this expression though, just before you go on, just below D.

MR TRACEY: On what page, your Honour?

CALLINAN J: Page 194.

MR TRACEY: Yes, your Honour.

CALLINAN J: It is the rejection of the:

proposition that a finding on the question whether a person is not of good character “will be anchored on one of the matters mentioned in subpars (i) or (ii)” ‑ ‑ ‑

MR TRACEY: Well, that is what I am coming to, your Honour, because that is where they are against us.

CALLINAN J: But it is stated disjunctively it is either/or, and nothing else is referred to.

MR TRACEY: Yes. Your Honour ‑ ‑ ‑

KIRBY J: Yes, but I think what their Honours are saying ‑ there is a debate here and that there is a difference of view about it that has to be resolved, but the other view is that they are mentioned, and only they are mentioned, and they are disjunctive, but they are gateways to determining what the Parliament has laid down as the criterion, vis present character.

MR TRACEY: Yes. Your Honour, just to put it in context, and I am coming back to it, but it has to be understood because they are disagreeing with the trial judge. The trial judge had taken the anchor view, and that emerges at the bottom of page 193, your Honour, where they quote from the judgment at first instance where Justice Whitlam had said:

“The Act envisages that a decision under par (a) of subs 501(2) that a person is ‘not of good character’ will be anchored on one of the matters mentioned in subpars (i) and (ii).

Now, it was that ruling that drew forth the passage your Honour has just referred to, the anchor ‑ ‑ ‑

HAYNE J: But what is the debate that is here occurring? We have two disjunctively expressed paragraphs, each of which is concerned with the person’s conduct, the person’s conduct of two kinds: past criminal or general. What is the disjunction that thereby is drawn that might have significance? Both are species of the one genus, the person’s conduct.

MR TRACEY: Yes, your Honour, and all that it says is that the legislature is particularly concerned that the Minister should direct his attention to that aspect of past conduct that may involve criminal conduct. It leaves open to the Minister to look more widely at conduct that may touch on character, but he cannot avoid looking at the criminal aspect of it, if there be any.

KIRBY J: Yes, but I think the debate is that it is anchored to those two, but the ship is character, and if the ship is character then, though they are anchored to those two and though you must have regard to them in terms of the statute, you must be focusing your attention upon present character and present character may be different from what is necessarily going to be past general conduct or past criminal convictions.

CALLINAN J: Well, if you look at (2)(b) though, I would suggest also it provides a definition of good character in a very narrow sense because it says a:

person is not of good character because of the person’s association with another person –

So that the particular person might have the best enduring moral qualities that anybody could imagine but he will not be of good character because of his or her association with another person.

MR TRACEY: Yes, your Honour.

CALLINAN J: So, with all due respect, it is not character at large, it is character by reference to a number of separate, discrete criteria perhaps. That is really your submission.

MR TRACEY: That is our submission, your Honour, yes. So that to that extent, the decision in Baker’s Case is contrary to what we are putting ‑ ‑ ‑

CALLINAN J: You say Justice Whitlam got it right?

MR TRACEY: We do, your Honour.

GLEESON CJ: I am not too sure where this argument is heading, Mr Tracey. I presume that Justice French was bound both by Baker and by Irving and did not purport to depart from them?

MR TRACEY: Yes, your Honour.

GLEESON CJ: I presume you seek to support the decision of Justice French?

MR TRACEY: Yes, your Honour.

GLEESON CJ: Why should we get involved in the correctness of Baker or Irving?

MR TRACEY: Your Honour, you do not need to, I think, except in so far as the construction of 501 throws some light on the actual bias claim, that is all. The only reason that I have said a lot of what I have said this morning was an endeavour to respond to questions that were asked of me yesterday by members of the Court.

GLEESON CJ: Well, you have taken the trouble to indicate to us that your side of the Bar table is not entirely happy with all aspects of the decisions in Baker and Irving but they are not cases that were employed or deployed against you in the present case ‑ ‑ ‑

KIRBY J: I think in fairness to you, I asked you if there was any jurisprudence in the Federal Court and you were responding in part to that. I did so because the Federal Court has more time and deals with these matters all the time and I thought maybe they have some wisdom to share with us.

MR TRACEY: Your Honour, it was also an issue that arose, as your Honour may recall, at the special leave stage of this case because Justice McHugh raised the question of whether it could be said that the Minister was biased by reason of having come to the views that he had as to the character of these two individuals having regard specifically to what they had done. So that it did come up indirectly in that way as well. If the Court pleases, I was about to take the Court to the approach taken by Justice French to the submissions that had been advanced before him relating to bias, and the starting point ‑ ‑ ‑

GLEESON CJ: You can take it that we have read the judgments in the Federal Court in this matter, Mr Tracey.

MR TRACEY: The starting point, if the Court pleases, is at 166 of the appeal book where ‑ ‑ ‑

KIRBY J: May I ask why you are starting with Justice French? We are here sitting on an appeal from the Full Court.

MR TRACEY: The reason I am starting with Justice French is that it is our submission, your Honour, that the inference that he drew, namely that the Minister was not actually biased, was open to him. We would go further and say it was correct.

KIRBY J: Does your submission rise as far as to say that, given that this Court has held in the Family Court, which is apparently analogous in the statutory provision to the Federal Court, that the appeal is by way of re‑hearing, that it is not open to the Full Court exercising its powers to draw a different inference from the same facts?

MR TRACEY: It cannot, unless it finds error in the primary judge’s process of reasoning. In other words, as the Full Court said in the Family Court case, one has to point to error before one substitutes on appeal one’s own judgment of what inferences ought to have been drawn and replace those of the trial judge. There is another reason for doing it, your Honour, because we will be submitting in the alternative that if your Honours are against us on that approach, then it is equally open to this Court to draw the inferences on the facts and that the inferences that this Court ought to draw are the inferences that were drawn by Justice French.

GLEESON CJ: Is another reason why you are referring us to this decision that you support the decision?

MR TRACEY: Yes, your Honour.

KIRBY J: Of course, we are in a slightly different relationship to the Federal Court than the Federal Court is in relation to one of its own number. This Court cannot, for example, receive any fresh evidence and our appellate function is constitutional and, therefore, it is slightly different, I think, in quality.

MR TRACEY: Well, your Honour, if the position is that the facts have been found by Justice French and they admit of inferences for and against the existence of actual bias, then this Court is in no better and no worse position to draw inferences on those same facts.

KIRBY J: But if we found error on the part of the Full Court in, as it were, intervening without itself having found error, we would simply uphold the appeal; we would not be doing any inferences of our own. We would simply be setting aside the decision of the Full Court and thereby restoring the orders of Justice French.

MR TRACEY: That is our primary submission, your Honour, but we do make the alternative submission that if your Honours are against us on the need for the Full Court, first, to find error before proceeding to draw different inferences, then it is perfectly consistent with that approach for this Court to do the same thing on appeal from the Full Court of the Federal Court.

GLEESON CJ: Am I right in thinking that this is a case in which there was no dispute about the primary facts?

MR TRACEY: Yes, your Honour.

GLEESON CJ: The only question that arose then was whether or not an inference of actual bias should be drawn.

MR TRACEY: Yes, your Honour.

GLEESON CJ: Justice French declined to draw the inference, two members of the Full Court said he was wrong and one said he was right.

MR TRACEY: Yes, your Honour, but wrong in the sense not that they said that he had erred, they just said there were other inferences that should have been drawn. We say they were in error. They took that step without first saying that it was not open to Justice French to draw the inferences which he did and we say that is a necessary preliminary step to proceeding to draw their own ‑ ‑ ‑

KIRBY J: Where did the Jones v Dunkel point come in? Did the Full Court say that there was error in failing to be more comfortable in drawing an inference by reason of the fact that the Minister had not given evidence?

MR TRACEY: Yes. Justice Nicholson, with whom Justice Spender agreed, did say that, your Honour.

KIRBY J: So if, in fact, that is a point that is error, in other words, if Justice French did not take into account that fact, that would itself be error that would authorise and perhaps require the Full Court to reach its own view on the facts, draw its own inferences, would it not?

MR TRACEY: Your Honour, Justice French did have regard to the fact that the Minister had not personally given evidence and that did not lead him to draw an inference that the Minister was actually biased.

KIRBY J: There is a debate between the parties about the Jones v Dunkel point, whether it is available in respect of the failure of the Minister to give evidence, and it just seems to me to come to the heart of what you are suggesting, that if it were made good, is an error that would authorise the Full Court to approach the matter in a different way, for itself.

MR TRACEY: Your Honour, in theory, yes, but the Full Court did not discern any such error.

GLEESON CJ: Jones v Dunkel does not hold that you have to draw an inference. Jones v Dunkel holds that an inference is open.

MR TRACEY: Yes, your Honour, and you can more comfortably draw it in the absence of available conflicting evidence. That is as far as it goes and we would submit that it does not assist our friends on this appeal.

GUMMOW J: It seems to me, Mr Tracey – I understand all that you are saying and at the moment I would be inclined to see the strength of it, but at the end of the day, I think your problem may be the 75(v) application which raises apprehended bias, does it not, which was not before the Federal Court obviously?

MR TRACEY: Yes. Well, your Honour ‑ ‑ ‑

GUMMOW J: I know you are moving first on your appeal.

MR TRACEY: Yes. Your Honour, we are not unmindful of various statements of the law, and included in the judgment of Justice Cooper on this appeal, that suggest that it is easier to establish ostensible bias than it is to establish actual bias. We will be submitting in due course, your Honour, that an examination of the authorities does not suggest that that is so. The test is substantially the same. The only difference is the eyes through whom the assessment is made - an ostensible bias through the reasonable observer, and it then it becomes a question of how much knowledge you attribute to that observer. In the case of actual bias, it is the reviewing court. But we would submit that the test is substantially the same.

GUMMOW J: The reasonable observer here will have to have the knowledge of parliamentary government perhaps.

MR TRACEY: Yes, your Honour, and that will be part of our submission.

GUMMOW J: Yes, all right. Sorry I interrupted you.

MR TRACEY: If the Court pleases, if I can just go quickly to Justice French’s approach, starting at 166. I have taken the Court, as you will recall, yesterday to the material on which the allegation of actual bias was based and at 166 his Honour turns to deal with the question of whether the Minister was actually biased on that material. He starts at about line 24 by saying that actual bias ‑ ‑ ‑

GLEESON CJ: You can take it that we have read all this.

MR TRACEY: In that event, your Honour, I am more than happy to pass over quickly to 169 where your Honours will see the seven matters upon which counsel appearing for Mr Jia had relied to make good the claim of actual bias, and his Honour concluded at 28:

In my opinion the evidence points to the Minister having formed, on the basis of Mr Jia’s convictions and sentence, a view strongly adverse to the conclusion that he could be described as a person of good character.

Then, over at 170 at line 15 his Honour referred to the fact that the Minister’s position had probably not been helped by engaging in public discussion relating to Mr Jia’s case ‑ ‑ ‑

GLEESON CJ: Yes, well, Ministers sometimes find it difficult to avoid engaging in public discussion. In fact, they sometimes ask questions in Parliament.

MR TRACEY: Yes.

KIRBY J: I do not think this was such a case. This is volunteering commentary on this particular man who had a case that might come before him as a donee of statutory power.

MR TRACEY: But what happened, your Honour, was that the Minister attended a radio interview and the interviewer raised this question because it had had some currency in the print media.

KIRBY J: It is not unknown for people to say, “Well, that is a matter in respect of which I have to exercise powers and I’m not going to comment on that particular case, but as a matter of generality, blank”. But instead he threw in Mr Jia’s name.

MR TRACEY: Your Honour, there is no doubt about that.

CALLINAN J: But he also said, “I’m considering what steps I can take and there are some avenues. One of the suggestions made is”, and then he said, “I have to weigh up whether or not that is a proper course for me to follow”. You really need to read the whole of the radio interview.

MR TRACEY: You do, your Honour, and I wanted to come to that because, finally, that was something that the Minister had said which, in our view, would have supported the drawing of the inference which the trial judge did draw because the trial judge said the Minister:

left himself an escape route in the radio interview referring as he did to the need to “weigh up” whether it was proper for him to adopt the procedure –

and that is the passage to which your Honour has just referred.

GLEESON CJ: But he also made the point that is at lines 23 to 25 on page 170 which may be a point of some significance both to the actual bias case and the ostensible bias case. In fact, it may be of fundamental importance.

MR TRACEY: Yes, your Honour, and again we submit that, very properly, the trial judge brought the Minister’s capacity as an elected official into account when determining whether or not there was actual bias present. Then the trial judge drew attention to various things that had occurred after those statements had been made publicly but before the decision was made. The Court will recall there was an intervening period of about six weeks, and Justice French refers to the comprehensive minute which had been sent to the Department, which put the case for and against Mr Jia before the Minister and the trial judge then took into account that the Minister’s criticism of the Administrative Appeals Tribunal had not been confined to the Jia Case but was put in a wider context of his concern about a trend in tribunal decision making and that, in the trial judge’s view, he was entitled to make those observations and to draw them to the attention of the Tribunal President ‑ ‑ ‑

KIRBY J: Is that strictly right?

MR TRACEY: Well, we say it is.

KIRBY J: I do not know, but I thought the Administrative Appeals Tribunal of the Commonwealth includes federal judges. The person to whom the Minister wrote was, and is, a federal judge. Observations were made which, at least on the face of things, impinge upon the impartiality and were designed to be drawn, presumably, to the notice of members of an independent body. I just voice my own reservations about this.

MR TRACEY: Your Honour, debates may be had about propriety but in terms of ‑ ‑ ‑

GUMMOW J: Or about the wisdom of appointing federal judges to these posts.

MR TRACEY: Yes, your Honour.

KIRBY J: But at the moment they are there and, even if they are not, the Deputy Presidents have, I think, the same status, do they not?

MR TRACEY: Your Honour, it has been trite law in this country since Drake’s Case that administrative decision makers are bound to have regard to government policy when making decisions.

GUMMOW J: Someone has to tell them what the policy is.

MR TRACEY: That is right, your Honour, and one may complain about the terms in which this was done in this case, but we submit that there was nothing wrong with doing it and the trial judge was not in error in saying that the Minister was entitled to do it.

GUMMOW J: Well, it is when you start complaining about Jones v Dunkel, because you seem to be assuming that the Minister should have gone in the box and had his credibility ruled on by three judges.

MR MARTIN: Yes. In a limited extent.

HAYNE J: It seems to be going fundamentally to the performance of his functions.

MR MARTIN: But, your Honour, I suppose the question is, “Was that any more prejudicial to him than if that had been raised at earlier stage when you would have had to make the same decision in relation to a decision for a single judge?”. We have put in our written submissions, I think, all that we usefully wish to say on that subject. We put the same submissions in relation to the application for prerogative relief as we put in relation to Jia and ‑ ‑ ‑

KIRBY J: Does the application for the relief under section 75(v) overcome the problems of the procedural kind in the Federal Court?

MR MARTIN: It does. The amendment point is swept away by the 75(v) application. Your Honours, I think I have concluded my submissions.

GLEESON CJ: Yes, thank you, Mr Martin. Yes, Mr Tracey.

MR MARTIN: There is just one additional point, your Honours. In relation to national interest, could I just draw attention to page 20 in the White Case. The submission to the Minister, in fact, put the proposition that the advantage of issuing the certificate under 502 was to avoid AAT review.

GUMMOW J: Now, Mr Martin, suppose in the Jia Case one came to the conclusion that you had some prospects of success in the 75(v) proceedings but not in the appeal because of the ground of ostensible bias which applies in one but not the other. Would there then be a question against you, I suppose, that relief should be refused because the recent crime and punishment of your client in that case was of such an overwhelming character and nature that a conclusion other than of bad character would have been perverse and therefore no relief?

MR MARTIN: With respect, no, that would not be a proper basis for the refusal of relief because in that circumstance the Court would essentially be usurping the role of the decision maker. The decision maker is the Minister or his delegate and that decision maker has to bring to bear all relevant considerations, including the present consideration. So, in other words, if the Court concludes that this decision was vitiated by want of procedural fairness and was void, it should act upon that and then allow the next process to take its course in the light of current circumstances.

GUMMOW J: There are cases that say relief may be withheld in these procedural fairness cases because there is no difference in the end.

MR MARTIN: That would, with respect, though, essentially come down to the same proposition that the Minister ran unsuccessfully but failed in front of Justice Carr.

GLEESON CJ: You have got some wind in your sails from the decision of the Tribunal.

MR MARTIN: Yes. Your Honour Justice Gummow’s proposition would only, with respect, be made good if the contrary decision was so unreasonable that no reasonable decision maker could conclude otherwise. Justice Carr ruled against the Minister on that proposition on the appeal from the Tribunal and the Minister did not further appeal that.

GUMMOW J: Thank you.

GLEESON CJ: Yes, thank you. Yes, Mr Tracey.

MR TRACEY: If the Court pleases. Your Honour the Chief Justice asked about the character test in the migration regulations that obtained at the relevant time. I am in a position to provide the Court with copies of that.

GLEESON CJ: Thank you very much.

MR TRACEY: It is Regulation 4001 in Schedule 4 and it contains “Public interest criteria” applicable to most visas. There are very few that do not apply. Relevantly your Honours will see that you meet the requirements if you get in under subregulations (2), (3) or (4) and your Honours will see that each was linked to the terms of 501.

GLEESON CJ: Thank you.

KIRBY J: Do you have the new section and the second reading speech available to you ‑ ‑ ‑

MR TRACEY: Not the second reading speech, but your Honours will find the new section in the current orange ‑ ‑ ‑

GUMMOW J: It is in Reprint No 7.

MR TRACEY: Yes, the one your Honour is holding.

MR MARTIN: It might be of assistance. That was actually introduced by an act called the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998.

GLEESON CJ: Act No 114 of 1998. Yes.

MR TRACEY: Yes. I am told that it is attached, your Honour, to the submissions that we sent to the Court.

GLEESON CJ: What do you mean by “it”?

MR TRACEY: The terms of the amending legislation.

GLEESON CJ: You were asked about the second reading speech.

MR TRACEY: Yes. I said we did not have that, your Honour.

GLEESON CJ: Thank you.

CALLINAN J: But you are going to get it for us?

MR TRACEY: Yes, your Honour.

KIRBY J: And the explanatory memorandum, if possible.

MR TRACEY: We will arrange to have it delivered tomorrow. Your Honour the Chief Justice referred to the possibility that there may be some passages in the judgments in the Reg v Anderson; Ex parte Ipec (1965) 113 CLR touching on the peculiar position of Ministers as decision makers. Your Honour, the passages that may be of assistance appear in the judgment of Justice Kitto at the top of 193 in the joint judgment of Justice Taylor and Justice Owen at 200, perhaps with greatest significance in the judgment of ‑ ‑ ‑

GLEESON CJ: Justice Windeyer.

MR TRACEY: ‑ ‑ ‑Justice Menzies at 202 and in the judgment of Justice Windeyer at 204, 205 and 206. The tenor of the dicta is that Ministers are expected to have regard to a wider range of considerations than one would expect of departmental decision makers and that is to be presumed and that when the legislature gives Ministers specific powers then it expects those matters to be brought to bear in the exercise of the powers. Can I deal with the issue of the tests of actual bias.

GLEESON CJ: How long do you expect to require for your reply?

MR TRACEY: Your Honour, I fear I am going to be troubling the Court for about 20 minutes.

GLEESON CJ: How long did you say?

MR TRACEY: About 20 minutes, your Honour.

GLEESON CJ: Noting that you have got 20 minutes further that you want to occupy in your reply, we will adjourn now, Mr Tracey, because what we will do is resume sitting at 9.15 in the morning.

MR TRACEY: Yes, your Honour.

GLEESON CJ: That means that we would expect, on Mr Tracey’s indication, to be onto the case of Clay, which is the next case in the list, not much later than 9.30, and the matter for judgment will now be in at 9.15 in the morning and we will arrange for the parties to be told that. We will adjourn until 9.15 tomorrow morning.

AT 4.48 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 26 OCTOBER 2000

[2000] HCATrans 630

25 October 2000