Re LLSY and Minister for Immigration and Citizenship
[2011] AATA 334
•19 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 334
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0129
GENERAL ADMINISTRATIVE DIVISION ) Re “LLSY” Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date 19 May 2011
Place Adelaide
Decision
The tribunal directs that:
(a) the hearing is to proceed in accordance with these reasons for decision;
(b) the application for an adjournment or stay of the proceedings is refused;
(c) until 2 June 2011 or such later date (if any) as the tribunal may determine, the within reasons for decision are not to be disclosed to any person other than the parties, their professional advisers, and the members and staff of this tribunal; and
(d) the parties are at liberty to apply.
………………………………………..
D G Jarvis
Deputy President
CATCHWORDS
IMMIGRATION - Student (Temporary) (Class TU) visa - pending criminal charges against visa applicant – construction of Direction 41 - Tribunal not precluded by paragraph 7.3.2(2) of Direction 41 from reviewing refusal of visa – invalidity of reviewable decision does not affect Tribunal’s powers of review – held that the proceedings should not be adjourned or stayed pending determination of concurrent criminal proceedings – consideration of other aspects of character test will not breach rules of procedural fairness.
PRACTICE AND PROCEDURE - pending criminal charges against visa applicant - whether Tribunal precluded by Direction 41 from reviewing refusal of visa – invalidity of reviewable decision does not affect Tribunal’s powers of review – held that the proceedings should not be adjourned or stayed pending determination of concurrent criminal proceedings – consideration of other aspects of character test will not breach rules of procedural fairness.
Migration Act 1958 (Cth), ss 501(6)(c) and (d)
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336
Cassaniti & Ors v Tax Agents’ Board (NSW) & Anor (2009) 179 FCR 1
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Commonwealth v TemwoodHoldings Pty Ltd (2001) 25 WAR 31
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Grofam Pty Ltd & Ors v Macauley & Ors (No. 2) (1994) 48 FCR 573
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Lavery and Registrar, Supreme Court (Qld) [No. 2] (1996) 23 AAR 52
Re Martin; Ex parte Dipane (2005) 222 ALR 358
Re Sogo Duty Free Pty Ltd & Anor and Federal Commissioner of Taxation (2005) 89 ALD 236
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, LexisNexis Butterworths, 2006)
Hon JJ Spigelman AC; “The intolerable wrestle : Developments in statutory interpretation” (2010) 84 ALJ 822
REASONS FOR DECISION
19 May 2011 Deputy President D G Jarvis 1.The visa applicant, has applied for a Student (Temporary) (Class TU) visa. A delegate of the Minister refused the application on the grounds that he was not satisfied that the visa applicant passed the character test in s 501 of the Migration Act 1958 (Cth) (the Act). The delegate had regard to the visa applicant’s “past and present general conduct” pursuant to s 501(6)(c)(ii). He took into account two charges against the visa applicant (being for unlawful sexual intercourse with a person under the age of 12, and possessing child pornography), and concluded that the visa applicant did not pass the character test because of his past and present general conduct. The visa applicant had returned to Vietnam very soon after being charged, and the South Australia Police did not pursue the two charges. They accordingly remain outstanding, but the police have confirmed that if the visa applicant were to return to Australia a warrant for his arrest would be sought, and that the two charges were still pending.
2.The visa applicant has applied to this tribunal for review of the delegate’s decision. In his Statement of Facts, Issues and Contentions, the Minister contends that the tribunal should not decide whether the visa applicant passes the character test by reference to s 501(6)(c)(ii), because paragraph 7.3.2(2) of Ministerial Direction No. 41 (Direction 41) states in effect that if a visa applicant’s conduct is the subject of criminal charges in Australia, which have not been finalised before the relevant court, no decision should be made in respect of the character test until the charges have been resolved.
3.The visa applicant also referred to this paragraph of Direction 41, and contended further that the tribunal was precluded from deciding whether the visa applicant passed the character test not only by reference to s 501(6)(c)(ii), but also by reference to s 501(6)(d), which includes considering whether, if the relevant person were allowed to enter or remain in Australia, there is a significant risk that the person would engage in criminal conduct, or molest another person, in Australia, or represent a danger to the Australian community.
4.In view of the parties’ contentions in relation to paragraph 7.3.2(2) of Direction 41, I directed that this issue be set down for special argument in order to determine the course that the tribunal should take on the hearing of the application. During the course of this special argument, I was informed that the visa applicant proposed to apply for a criminal justice visa permitting him to enter and remain in Australia to enable him to answer the criminal charges against him. I have since been informed that it is acknowledged that he does not have standing to apply for such a visa, but that he has instructed his solicitors to make urgent representations to the relevant State authorised official to set in train the process that would lead to the grant of such a visa.
Issues before the Tribunal
5.The issues before the tribunal, which reflect the contentions made on behalf of the visa applicant, are as follows.
(a)If, as was conceded on behalf of the Minister, the delegate was precluded by paragraph 7.3.2(2) of Direction 41 from applying the character test in s 501(6)(c) of the Act (that is, considering the visa applicant’s past and present criminal and general conduct), was the delegate’s decision invalid, and if so, what are the tribunal’s powers to review the delegate’s decision?
(b)Does paragraph 7.3.2(2) of Direction 41 apply to s 501(6)(d) of the Act, so as to prevent the tribunal from determining whether the visa applicant passes the character test by reference to the criterion referred to in that section?
(c)If so, and taking into account the admission by both parties that paragraph 7.3.2(2) of Direction 41 applies to the criterion referred to in s 501(6)(c)(ii), does it follow from the concluding words of s 501(6) that the visa applicant passes the character test?
(d)In the alternative, if paragraph 7.3.2(2) of Direction 41 does not apply to the criterion in s 501(6)(d), or if the visa applicant does not pass the character test because the proposition in paragraph (c) above is not correct, should the within proceedings be adjourned or stayed, because of potential difficulties that might arise on the hearing of the within proceedings, taking into account that the criminal proceedings against the visa applicant remain outstanding and will be heard if he is permitted to return to Australia pursuant to a criminal justice visa?
(e)In the further alternative, would it in any event be unfair to the visa applicant to consider the character test by reference to s 501(6)(d), having regard to rules of procedural fairness?
Legislation
6.Section 45 of the Act provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 sets out the requirements for a valid visa application.
7.Section 47 in effect requires the Minister to consider and determine the application. It provides as follows.
“47 Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).”
8.Section 501 provides in effect that the Minister has a discretion to refuse to grant a visa if an applicant does not pass the character test, and it proceeds to explain that concept. It provides as follows.
“501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
...
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
...
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
...
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
...
Otherwise, the person passes the character test.
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more; ...”
9.The power to make a Direction 41 is contained in s 499. It provides relevantly as follows:
“499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
...
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A)A person or body must comply with a direction under subsection (1).
...”
Background Facts
10.Assertions to the following effect are made in the Statement of Facts, Issues and Contentions filed on behalf of the visa applicant. He arrived in Adelaide on a Temporary Student visa in 2003, when he was 14 years old, and he attended an Adelaide high school. The alleged incident that resulted in the above charges occurred about eight months later, on the day he turned 15 years of age, and involved the 3-year old son of the man and woman who were providing him with home stay accommodation. He was interviewed by the police on 10 December 2003, when he allegedly admitted the alleged offences referred to in paragraph 1 above, and he was subsequently charged with those offences. After that he attended two sessions of counselling at the Mary Street Adolescent Program. He then returned to Vietnam to spend his holidays with his family with the intention of returning to Adelaide on 25 January 2004 to continue his studies, and also to continue his counselling at the Mary Street Adolescent Program.
11.The visa applicant’s student visa was cancelled on 15 December 2003, and as a consequence he was prevented from returning to Australia. In November 2006, he lodged a new application for a Student (Temporary) (Class TU) visa with the Australian Consulate General in Ho Chi Minh City, Vietnam. The application was refused on the basis that he did not pass the character test. As mentioned above, a delegate of the Minister made this determination by reference to s 501(6)(c)(ii) of the Act.
12.The Statement of Facts, Issues and Contentions lodged on behalf of the visa applicant includes contentions to the effect that:
(a)the circumstances in which the admission was alleged to have been made give rise to serious questions about its reliability and admissibility;
(b)the nature and circumstances of the alleged offences did not warrant a prosecution in the Youth Court, because of the common law doctrine of doli incapax;
(c)the relevant paragraph of the Departmental policy instructions, namely paragraph 75 of “PAM 3: Act – Character – s 501 – The character test, visa refusal and visa cancellation”, provides that there may be legal impediments where minors are concerned that are relevant to the facts of a given case, or policy constraints imposed by policy and/or international law, and reference is made to the Convention on the Rights of the Child;
(d)there was no evidence that certain provisions of the Young Offenders Act 1993 (SA) (YOA) relating to admissions by a youth were complied with; and
(e)in any event, the visa applicant’s alleged plea could be withdrawn under s 20 of the YOA.
Visa applicant’s contentions
13.Counsel for the visa applicant, Mr Collett, presented a thorough and persuasive argument on behalf of the visa applicant. He contended first that paragraph 7.3.2(2) of Direction 41 qualifies not only (as conceded by the Minister) s 501(6)(c) of the Act (re past and present criminal and general conduct), but also s 501(6)(d) (re the risk of the person engaging in the conduct, or representing a danger to the community, as therein described). He pointed out that paragraph 7.3.2(2) is not in terms confined to decisions made under s 501(6)(c), but rather proscribes the making of a decision “in respect of the character test”; and the expression “character test” is defined in paragraph 6 of Direction 41 to have the same meaning as in s 501(6) of the Act, which includes each paragraph of s 501(6). Accordingly, he submitted, the tribunal was estopped from making a decision in respect of the character test under both ss 501(6)(c) and 501(6)(d) of the Act. In this context he also drew attention to the significant difference between Direction 41 and its predecessor, Ministerial Direction No. 21, which in paragraph 1.10 expressly related the existence of unresolved criminal charges to the test of good character under the “general conduct provisions” (i.e. s 501(6)(c)(ii)), and made provision for the weight to be given to unresolved charges, rather than (as is provided in Direction 41) precluding the decision-maker from making a decision “in respect of the character test” until the charges have been resolved. He submitted further that having regard to the express words of paragraph 7.3.2(2), its sub-heading was included in error, and he relied on authorities summarised in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, LexisNexis Butterworths, 2006) at 4.43 to the effect that headings may be inaccurate or incomplete, and may for example survive despite amendments in the course of the passage of a bill, or should be disregarded if they comply with an otherwise unambiguous provision of a statute.
14.On the above interpretation of paragraph 7.3.2(2), Mr Collett further contended that the delegate committed an error of law, in that he was estopped by paragraph 7.3.2(2) of Direction 41 from making a decision in respect of the character test referred to in s 501(6)(c) because the visa applicant’s conduct was the subject of criminal charges in Australia that had not been finalised, and that that error of law was a jurisdictional error, because it was directly relevant to the delegate’s powers to apply the character test under s 501(6).
15.Mr Collett argued further that because the delegate, and this tribunal standing in the shoes of the delegate, are estopped (by virtue of paragraph 7.3.2(2) of the Direction) from making a decision in respect of the character test, because the charges against the visa applicant are still outstanding, the visa applicant is deemed to pass the character test because of the concluding words of s 501(6), namely “Otherwise the person passes the character test”. And accordingly, he submitted, the tribunal should set aside the delegate’s decision and grant the visa.
16.Finally and in the alternative, Mr Collett contended more generally that the character test entailed making a finding of fact based upon the visa applicant’s conduct, and that where the visa applicant’s conduct might constitute a breach of the criminal law, the question of whether the visa applicant had committed a criminal offence should be determined in accordance with the criminal justice system, according to the standard of proof beyond reasonable doubt that applies in criminal cases. He submitted that it was highly inappropriate that an administrative tribunal should make determinations of this kind. He further submitted that to the extent that the character test involved assessing the risk of recidivism or of future conduct that would constitute a breach of the criminal law, the relevant determination should be based on factual findings, and once again, if the issue entailed determining whether an offence had been committed, then the finding should be made in accordance with the criminal justice system. He therefore contended that this tribunal should defer the hearing of the present proceedings until after the criminal proceedings have been resolved.
17.Counsel for the respondent, Mr d’Assumpcao, presented a careful and helpful argument in response. I will incorporate appropriate aspects of this argument below, in addressing the contentions made on behalf of the visa applicant.
Consideration
18. In reviewing the delegate’s decision I must conduct a re-hearing, that is, hear the matter afresh. I may exercise all the powers and discretions of the delegate, and must arrive at the correct or preferable decision on the material before me, and not by reference to the material before the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, and Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
19. It is clear that the character tests referred to in s 501(6)(a) (re having a substantial criminal record) and s 501(6)(b) (re having an association with others suspected of involvement in criminal conduct) have no application in the present matter.
20.In applying the character test, decision-makers, including this tribunal when reviewing a decision of a delegate of the Minister, are required by s 499(2A) to comply with Direction 41. In the present case it is necessary at the outset to determine the relevance of paragraph 7.3.2(2) to the application of the character test referred to in ss 501(6)(c) and 501(6)(d).
21.This tribunal does not have any separate jurisdiction to formally determine the legal status of the reviewable decision, but may do so in order to determine its jurisdiction. As mentioned above, it is common ground that paragraph 7.3.2(2) applies to the character test in s 501(6)(c) (involving a consideration of past and present criminal and general conduct), and accordingly, the delegate should not have considered the character test in that paragraph until after the criminal charges about the visa applicant had been resolved. It follows that in my opinion, the reviewable decision was invalid.
Invalidity of reviewable decision
22.In considering the relevance of the invalidity of the reviewable decision to the present proceedings, it is appropriate to refer to the role and function of this tribunal when determining applications for review. It is well established that in reviewing a reviewable decision, this tribunal conducts a hearing de novo; that is, the matter before the tribunal is heard afresh, and the tribunal makes a decision by reference to the evidence presented at the hearing before it. The decision-maker whose decision is under review may seek to support the decision on a basis completely different from that upon which it was originally made, and an applicant may seek to have the decision set aside on grounds completely different from the grounds originally put to the decision-maker: Re Lavery and Registrar, Supreme Court (Qld)[No. 2] (1996) 23 AAR 52 at 56. In these circumstances, this tribunal is required to exercise its powers whether or not there was an error at first instance: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]. This was clearly explained by von Doussa J in Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72. His Honour said, at 78:
“In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.”
23.In the present matter, although the delegate’s decision was invalid because he applied the character test in s 501(6)(c) when he was precluded from doing so by paragraph 7.3.2(2) of Direction 41, he nevertheless had power to apply the character test under the other paragraphs of s 501(6) of the Act, and the invalidity of his decision does not deprive this tribunal of jurisdiction to determine the character test by reference to other paragraphs of s 501(6), including in particular s 501(6)(d). The question then arises as to whether paragraph 7.3.2(2) applies to this aspect of the character test.
Construction of Direction 41
24.The High Court of Australia has made it clear that legislation must be interpreted to give effect to the intention of Parliament, and whilst the best guide to that intention is to look at the words of the provision in question, those words must be construed in their context (including the mischief the legislation was intended to remedy) by reference to, and so that it is consistent with, the language and purpose of the legislation as a whole, and so that the Act is consistent internally: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71], and the review of recent judgments by the Hon JJ Spigelman AC, “The intolerable wrestle : Developments in statutory interpretation” (2010) 84 ALJ 822.
25.The above considerations also apply to the construction of delegated legislation, which must, of course, also be construed in accordance with the Acts Interpretation Act 1901 (Cth), including in particular the principles incorporated in s 46(1) of that Act. By virtue of that section, unless the contrary intention appears: (a) Direction 41 is to be construed in accordance with that Act as if it were an Act and as if each provision of Direction 41 were a section of an Act; (b) expressions used in the Direction have the same meaning as in the Act itself; and (c) the Direction is to be read and construed subject to the Act, and so as not to exceed the power of the authority conferred on decision-makers. I note that the Legislative Instruments Act 2003 (Cth) has no application to Direction 41, because it is not a legislative instrument under that Act: see Item 21 of the Table to s 7(1) of that Act.
26.Both parties referred in their submissions to the headings to various paragraphs of Direction 41. It is therefore also necessary to consider s 13 of the Acts Interpretation Act. This provides as follows:
“13 Headings, schedules, marginal notes, footnotes and endnotes
(1)The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.
(2)Every schedule to an Act shall be deemed to form part thereof.
(3)No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.”
27.In addition, s 15AA of the Acts Interpretation Act is relevant. Its effect is that a construction that would promote the objective underlying the Direction is to be preferred to a construction that would not promote that objective. The objectives of the Direction appear in paragraph 5.1 of the Direction. This paragraph provides as follows:
“5.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
28.Part A of the Direction provides directions on the application of the character test, and is headed “Application of the character test”. Paragraph 7 has the heading “Overview of the character test”, and is followed by a note which provides relevantly as follows:
“Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act.
...
Section 501(6) of the Act prescribes the four circumstances in which a person does not pass the character test. A person need only fail one ground to fail the character test – failure under all grounds is not necessary. ...”
29.There are then a series of sub-headings of paragraph 7, which appear to deal in turn with ss 501(6)(a), 501(6)(b), 501(6)(c) and 501(6)(d). Paragraph 7.3 has the sub-heading “Not of good character on account of past and present criminal or general conduct”. Sub-paragraph 7.3.2 (which has the sub-heading “Past and present general conduct”) lists a number of “factors” which may be considered when considering whether a person is not of good character on the basis of past and present general conduct. Paragraph 7.3.2(1)(a) is followed by a note reading relevantly as follows:
“The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not, strictly speaking, have constituted a criminal offence.”
A further note follows paragraph 7.3.2(c), and this contains a cross-reference to the later paragraph of the Direction referring to conduct considered to be serious in Australia.
30.Paragraph 7.3.2(2) is central to a determination of the second and third issues before the tribunal, which I identified in paragraph 5 above. This paragraph provides as follows:
“In addition to the above matters, if the person’s conduct is the subject of criminal charges in Australia, which have not been finalised before the relevant court, no decision should be made in respect of the character test until the charges have been resolved.”
31.Paragraph 7.3.2(3) of the Direction deals with the situation where charges have been brought against a person in a jurisdiction other than an Australian jurisdiction. Paragraph 7.3.2(4) provides in effect that recent good conduct occurring after any reprehensible conduct must also be taken into consideration in obtaining a complete picture of a person’s character.
32.For the following reasons I have reached the conclusion that paragraph 7.3.2(2) applies only to the character test in s 501(6)(c)(ii). As counsel for the Minister, Mr d’Assumpcao, pointed out, paragraph 7 of Direction 41 deals sequentially, in each of the sub-paragraphs of paragraph 7, with each of the grounds referred to in ss 501(6)(a) to 501(6)(d) of the Act. In particular, he pointed out that: (a) paragraph 7.3 deals with s 501(6)(c), namely whether a person passes the character test having regard to their past and present criminal and general conduct; (b) paragraph 7.3.1 then deals with the first limb of s 501(6)(c), namely s 501(6)(c)(i) (re past and present criminal conduct); (c) paragraph 7.3.2 then deals with the second limb of s 501(6)(c), namely s 501(6)(c)(ii) (re past and present general conduct); and paragraph 7.3.2(2) is of course part of 7.3.2. I agree with this analysis.
33.Section 501(6)(c)(ii) is a character test that refers to past and present general conduct. As the note to paragraph 7.3.2(1)(a) of Direction 41 records, this test allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence. Paragraph 7.3.2 then proceeds, in paragraph 7.3.2(2), to include a Direction as to what should be done where criminal charges have not been resolved. Furthermore, it would be inappropriate for the Direction to include a general restraint, until criminal proceedings had been resolved, on applying other aspects of the character test; for example, the tribunal should be able to apply the character test in s 501(6)(a), if the person concerned already had a significant criminal record, or had a conviction for an offence of a kind referred to in paragraphs 10.1.1(1) and (2) of the Direction, which are regarded as being of special concern to the welfare and safety of the Australian community, or abhorrent to the whole community. I consider that the structure of paragraph 7 of Direction 41, the sequence of its sub-paragraphs, and the context in which paragraph 7.3.2(2) appears, strongly support the conclusion that paragraph 7.3.2(2) is intended to relate to the character test in s 501(6)(c)(ii), and not the character test referred to in other paragraphs of s 501(6), including in particular s 501(6)(d).
34.Both counsel sought to rely upon the headings to paragraph 7 and to each of the sub-paragraphs of paragraph 7, having regard to s 13 of the Acts Interpretation Act. Mr Collett pointed out that paragraph 7.3.2(2) was part of paragraph 7 which has the heading “Overview of the character test”, whereas Mr d’Assumpcao pointed out that paragraph 7.3.2(2) is part of paragraph 7.3.2 which has the heading “Past and present general conduct”. Whilst by virtue of s 46(1)(a) the Acts Interpretation Act applies to Direction 41, this section is expressed to be subject to a contrary intention. Section 13 of the Acts Interpretation Act, which deals with the use of headings, refers in terms to Acts, and differentiates between on the one hand Parts, Divisions and Sub-divisions, and on the other hand such things as marginal notes, footnotes, endnotes and headings to sections of an Act. Direction 41 does not employ the traditional structure of an Act of Parliament, that is, it does not incorporate Parts, Divisions or Sub-divisions as such. On the contrary, it has a main heading “Part 1 Preliminary” which is followed by another heading of a part, namely “Part 2 Directions”, and then by further groups of provisions which appear to be sub-parts, but which are described as “Part A – Application of the character test” and “Part B – Exercising the discretion”. I therefore do not regard s 13 of the Acts Interpretation Act as relevant to the interpretation of Direction 41, insofar as it incorporates headings.
35.However, whilst I have concluded that s 13 of the Acts Interpretation Act does not apply, the headings of the parts of paragraph 7 of the Direction are clearly related to each of the character tests in s 501(6) of the Act, and in my view, this reinforces the contention made by Mr d’Assumpcao to which I referred in paragraph 32 above, and clearly indicates that paragraph 7.3.2 of Direction 41, including of course paragraph 7.3.2(2), is intended to relate only to s 501(6)(c) of the Act.
36.I do not think that the heading to paragraph 7.3.2(2) could be said to have been retained in Direction 41 in error, as contended by Mr Collett. This is not a case where a bill was amended in the course of its passage through Parliament, or the context of the amended paragraph in the later Direction indicates that a heading was retained or included in error. On the contrary, the paragraphs in the current and former Direction in relation to unresolved criminal proceedings appear in their context in the parts of the former and current Directions that relate to past and present general conduct. Paragraph 1.10 of the former Direction 21 follows a heading that expressly refers to past and present general conduct, as does paragraph 7.3.2(2) of the current Direction, Direction 41. I think that consistently with the approach to statutory interpretation to which I referred in paragraph 24 above, I should give effect to the clear intention of paragraph 7.3.2(2), namely that it is confined to the past and present general conduct aspect of the character test, notwithstanding that literally the paragraph would extend to all aspects of the character test in s 501(6) of the Act.
37.For the sake of completeness, I refer to a further submission by Mr Collett where he pointed out that paragraph 7.3.2(2) commences with the words “In addition to the above matters” (emphasis added), whereas paragraph 7.3.2(1) lists “the following factors” (emphasis added). Mr Collett argued from this that paragraph 7.3.2(2) should relate to the whole of the character test set out in s 501(6), and is not confined to s 501(6)(c)(ii). However, I think that this change in terminology is of no consequence, in that the word “matters” is appropriate to designate a reference to what is listed in paragraphs 7.3.2(1)(a) to (c) and there described as “factors”. In any event, the word “matters” would extend to the footnotes included in paragraph 7.3.2(1), and it therefore seems to me to be a more appropriate word than the word “factors”.
Is the visa applicant deemed to pass the character test, if the tribunal is estopped from considering the test in s 501(6)(d)?
38.In support of his argument that the visa applicant was deemed to pass the character test because of the concluding words of s 501(6), namely “Otherwise, the person passes the character test”, Mr Collett pointed out that under s 501(1), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test, and this sub-section is followed by a note to the effect that “character test” is defined by s 501(6). He then referred to Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552. In that case, a Full Court of the Federal Court (Madgwick, Lander and Crennan JJ) approved the analysis by the primary judge, Lee J, of the relationship between s 501(1) and s 501(6) of the Act. Their Honours, at [34], quoted extensively from the judgment of Lee J, commencing with the following paragraph:
“Subsection 501(6) acknowledges that it is a limited discretion in that it provides that a person “passes the character test” unless paragraph 501(6)(a), (b), (c), or (d) applies to that person. In so far as s 501(1) requires a visa applicant to “satisfy” the Minister that he or she “passes the character test” it imposes no separate onus on that person. It is s 501(6) that governs the operation of s 501(1).” [Emphasis added.]
39.After further discussion, their Honours summarised the position as follows, at [49]–[51].
“Thus, s 501(6) requires the Minister to consider the separate matters in paras (a), (b), (c) and (d) and to make a determination whether the person comes within the provisions of any of those paragraphs. In respect of para (c) of s 501(6), the Minister has to consider whether the person is not of good character for either or both of the reasons given in placita (i) or (ii) of that paragraph.
If the Minister determines that the person is not of good character, then it must follow that the person does not pass the character test.
If, on the other hand, the Minister does not decide that the person comes within any of paras (a), (b), (c) or (d) then, by force of s 501(6), the person has passed the character test. That is so because of the concluding words in the subsection “Otherwise, the person passes the character test”. It follows that, absent any determination or decision by the Minister that the person comes within any of the paragraphs of s 501(6), the person has by force of the express provisions of the subsection passed the character test.”
40.These passages from the judgment of the Full Court assume that there will be no determination by the Minister that the visa applicant comes within any of the paragraphs of s 501(6) of the Act. On my interpretation, paragraph 7.3.2(2) of Direction 41 does not preclude the Minister from making a determination under s 501(6)(d). It only imposes an interim restraint, that is, a restraint which exists until the criminal charges have been resolved. To decide that the concluding words of s 501(6) have the effect of a person passing the character test without any determination being made in respect of the criteria referred to in s 501(6)(a) to (d) would be contrary to the objectives of Direction 41, which require decision-makers to have regard to the need to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
Is the existence of concurrent criminal proceedings otherwise relevant?
41.The asserted conduct which gave rise to the criminal charges is the only basis on which it has been suggested that the visa applicant does not pass the character test. Mr Collett referred to well-known authorities to the effect that this tribunal should accept evidence of convictions and sentences as probative of the factual matters upon which the conviction and sentence were necessarily based, and must recognise that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see for example Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [40]-[44], and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [45]).
42.In the present case, I will need to consider conduct which is not the subject of a past conviction, but is the subject of pending criminal charges. Mr Collett submitted that the proceedings in the tribunal should be stayed because otherwise their continuance would constitute a contempt of concurrent criminal proceedings, and would result in substantial prejudice to the visa applicant. He relied in support of this proposition on the primacy of the criminal justice system, as illustrated by the authorities referred to in the preceding paragraph, and he also relied on Cassaniti & Ors v Tax Agents’ Board (NSW) & Anor (2009) 179 FCR 1 at [34]-[35], and a number of other authorities, including Re Sogo Duty Free Pty Ltd & Anor and Federal Commissioner of Taxation (2005) 89 ALD 236. In the last case this tribunal granted a stay of the review of a decision of the Federal Commissioner of Taxation, and of proceedings in the tribunal, because the hearing of the applications could create a substantial prejudice to the applicants.
43.Mr Collett submitted that the conduct in question should be determined by the criminal justice system for a number of reasons, namely: (a) the visa applicant would then know the charges to be finally proffered against him, and could be advised of the evidence to be adduced against him; (b) he could exercise his right to silence; (c) the establishment of his guilt would be determined beyond reasonable doubt; (d) he would have the benefit of the criminal law rules as to the admissibility of documents alleged to contain admissions; and (e) the admissibility of an alleged admission to the police could be determined by reference to the criminal law, including relevant State legislation and common law as to the admissibility of confession evidence.
44.Ordinarily, it would I think assist the tribunal to evaluate the relevance of the asserted charges against the visa applicant for those charges first to have been determined in accordance with the criminal justice system. The tribunal would then know whether or not the visa applicant had been convicted of the asserted charges, and if so, the penalty imposed, and what remarks had been made by the sentencing judge. The tribunal would then be in a position to take into account whether the visa applicant had failed the character test which customarily is relevant in proceedings that come to the tribunal involving character issues, namely the test under s 501(6)(a), or alternatively, the test under s 501(6)(c)(i). In addition (having regard to my above conclusion that paragraph 7.3.2(2) applies to the character test in s 501(6)(c)(ii)), if a decision in the present matter is deferred until the resolution of the pending criminal charges, the tribunal would then not be precluded from considering the test in that sub-paragraph, namely having regard to the visa applicant’s past and present general conduct; this is an important and highly relevant character test. Finally, the tribunal might be in a better position, in the light of the resolution of the criminal proceedings, to evaluate the risk that the visa applicant would engage in criminal conduct, or molest another person, in Australia, or that he would represent a danger to the Australian community in some other way, being the character tests provided for in s 501(6)(d)(i), (ii) and (v) of the Act.
45.When applications for a stay or an adjournment of proceedings in this tribunal are made on the grounds that the conduct to be considered by the tribunal might be the subject of criminal proceedings, it is necessary first to consider the likelihood and extent of prejudice to the applicant. In the present case, the criminal charges are not merely a future possibility; the visa applicant was arrested and charged, and, as mentioned above, the charges will be pursued if he returns to Australia.
46.The visa applicant will be able to answer the charges against him if he is granted a criminal justice visa. However, as Mr d’Assumpcao pointed out, such a visa is only permissible if an authorised official for a State issues a certificate under s 146 of the Act to the effect that the presence of the non-citizen in Australia is required for the administration of criminal justice by the State. It is then necessary under s 146(2) for the Attorney-General to endorse the certificate, and under s 159, the Minister has an absolute discretion to grant the visa. There is no provision in the Act for any appeal against a refusal or failure to take any of the steps necessary for the grant of the visa, and the relevant steps are beyond the control of the non-citizen. As mentioned in paragraph 4 above, the visa applicant’s solicitors have now been instructed to make urgent representations to the State authorised official to set in train the process that would lead to the grant of a criminal justice visa, but the relevant persons have not seen fit, over the lengthy period since the charges were laid, to take the steps that would lead to the issue of a criminal justice visa to the visa applicant. There is no evidence before me as to whether or when such a visa will be issued to him, and counsel has not suggested that there is any other available visa which would enable the visa applicant to enter Australia and face the pending criminal charges.
47.On the information before me I think it unlikely that the visa applicant will be permitted, through the issue of a criminal justice visa, to return to Australia to answer the criminal proceedings in the relatively near future. Even if such a visa is issued, further time would no doubt elapse before those proceedings could be listed for hearing. However, if contrary to my expectations, it appears that there are reasonable prospects of such a visa being issued and of his being brought to Australia to face the charges before the date fixed for the hearing of the present proceedings, the parties will no doubt inform the tribunal of those developments, and a fresh application could be made at that time for an adjournment or stay of the proceedings. Any such application could then be further considered in the light of the considerations referred to in these reasons for decision.
48.Nevertheless, the existence of the pending criminal charges means that the visa applicant will potentially be prejudiced if he pursues proceedings in this tribunal, because if his application to this tribunal is successful and he is granted a student visa, the police will arrest him when he returns to Australia, and will proceed with the criminal proceedings. In order for the tribunal to determine the present proceedings, it will in my view be necessary for the tribunal to examine the very conduct which is the subject of the criminal charges, by applying the character test provided for in s 501(6)(d) of the Act. It is true, as Mr d’Assumpcao has pointed out in his written submissions, that unlike the position in a number of authorities, the visa applicant will not be under a statutory obligation to answer questions, and he could refuse to answer questions by reference to the privilege against self-incrimination. However, from a practical point of view, his prospects of succeeding in his application to this tribunal would be greatly prejudiced if he were to claim this privilege. The tribunal has been made aware of the pending criminal charges and of the circumstances that gave rise to them. Under s 501(1) of the Act, if the visa applicant does not satisfy the decision-maker that he or she passes the character test, there is a discretion to refuse to grant the visa. In view of the information before the tribunal, the visa applicant would need to give evidence to enable the tribunal to assess the risks referred to in s 501(6)(d) of the Act, and he would not be assisted by claiming the right to silence. That is because, whilst there is no onus of proof in proceedings in this tribunal, it remains incumbent on a party who seeks to satisfy the tribunal of a relevant fact to adduce evidence in support of that fact, or otherwise his claim will fail: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357.
49.In assessing the extent of the prejudice to the visa applicant because of his practical inability to claim the right to silence, a number of further considerations are relevant. It should be borne in mind that the evidence given in these proceedings will not necessarily be admissible in any subsequent criminal proceedings. For example, it would be open to the visa applicant to apply for an order that relevant evidence tendered at the hearing of the present proceedings should be maintained in confidence pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (although I do not think that it would be appropriate in these reasons to determine the likelihood that any such application would be successful, since any such application should more appropriately be considered by the member(s) of the tribunal constituted to hear this matter: see Grofam Pty Ltd & Ors v Macauley & Ors (No. 2) (1994) 48 FCR 573, and the cases there referred to). Further, to the extent that relevant information is produced pursuant to a compulsory process of this tribunal, the resulting information would be subject to an implied undertaking by the respondent not to disclose the information to third parties: Commonwealth v Temwood Holdings Pty Ltd (2001) 25 WAR 31 at [41]. If any of the evidence adduced in the proceedings in this tribunal were sought to be tendered in the criminal proceedings, issues of the admissibility of such evidence would be likely to arise, and I do not think that I should assume that the evidence admitted in this tribunal would necessarily be admissible in any subsequent criminal proceedings. In addition, unlike the position in some cases where issues of the present kind have arisen, the solicitor and counsel for the respondent would not be involved in prosecuting the visa applicant for the pending criminal charges, because the office of the State Director of Public Prosecutions would act in that matter. It was also suggested that the privilege against self-incrimination had been waived because the visa applicant’s solicitors filed a witness statement and the applicant’s Statement of Facts, Issues and Contentions, but these documents do not contain any admissions by the visa applicant of the conduct that is alleged to constitute the offences in question.
50.I also take into account that the outcome of the present proceedings is unlikely to receive any publicity, and the court hearing the criminal charges is unlikely to pay any regard to, or be influenced by, the findings of this tribunal; and this is not a matter where the court or jurors who hear the criminal charges would be influenced by such matters. The appropriate standard of proof in the present proceedings, which entail whether the non-citizen satisfies the character test, is the civil, not the criminal, standard of proof, to be approached in accordance with the principles in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, and that is a further reason why the court hearing the criminal charges would not be affected by the outcome of the present tribunal proceedings. In Briginshaw Dixon J said that when, in civil proceedings, a question arises whether a crime or fraudulent conduct has been committed, the standard of persuasion is the same as upon other civil issues, that is the balance of probabilities. His Honour also said, at 361-362:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
51.The potential prejudice to the visa applicant, having regard to the considerations to which I have referred above and the need to maintain the integrity of the criminal justice system, must be weighed against the obligation of this tribunal to determine the application before it, as required by the AAT Act, and the public interest in the tribunal determining the application in the light of all relevant facts in order to make a decision that gives effect to the policy and objectives of the Act and of Direction 41. I refer in this regard to Re Martin; Ex parte Dipane (2005) 222 ALR 358, where a Full Court of the Supreme Court of Western Australia reviewed a number of earlier authorities, and weighed the potential for danger of injustice or prejudice arising from pending criminal proceedings against the public interest in proceeding with an investigation as to whether the plaintiff’s marine competency certificates had been validly suspended or cancelled.
52.The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. Direction 41 includes in paragraph 5.1 an explanatory preamble to the effect that the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, and further that the Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled. In order to fulfil those objectives, it is essential for this tribunal to examine the nature of the visa applicant’s conduct, especially as it is asserted to have constituted a breach of the criminal law involving a minor, and also to consider the potential for recidivism with consequential risks to the Australian community, taking into account the provisions of Direction 41.
53.In summary, it appears on the information before me at present that the visa applicant is not in a position where he will be able to answer the criminal charges due to the delay and uncertainty associated with the application for a criminal justice visa, but the issues raised by the pending charges will have to be considered by this tribunal in order to determine the present proceedings. Whilst the tribunal will be unable to consider some aspects of the character test, there appears to be no alternative other than for the tribunal to consider the asserted conduct by reference to the aspects of the character test that remain open for the tribunal’s consideration, by reference to the standard of proof referred to in Briginshaw (supra). Accordingly, on the assumption that the visa applicant wishes to proceed with his application to this tribunal for review, there is the potential for him to be prejudiced. However, on analysis, the potential prejudice to him may not be significant, and does not outweigh the tribunal’s obligation to determine the within proceedings, or the public interest in doing so by considering whether the asserted conduct in question occurred, and if so, how it relates to the relevant aspects of the character test.
54.For all of the above reasons, I conclude that it would not constitute contempt of the criminal court for this tribunal to carry out its statutory function of hearing and determining the present application. I further conclude, after weighing the above considerations, that I should not at this stage, and in the absence of evidence as to the time within which the visa applicant’s request for a criminal justice visa might be processed, grant a stay or adjournment of the present proceedings.
Will a consideration of the character test in s 501(6)(d) entail a breach of the rules of procedural fairness?
55.It was finally argued that it would be unfair to the visa applicant to consider the character test by reference to s 501(6)(d), first because he was not given any notice that the delegate might rely on that provision and therefore had no opportunity to put any facts before the delegate relevant to the issues raised by that section, and second because he is unable to obtain an opinion from one Alan Jenkins (a psychologist at the Mary Street Adolescent Program who assessed him in 2003) as to the issues raised by that provision if Mr Jenkins is unable to examine him in person in Australia.
56.I do not accept these contentions. As mentioned in paragraph 22 above, proceedings in this tribunal are a hearing de novo, and it is open to either party to advance new arguments or facts not raised before the decision-maker whose decision is under review. Further, if Mr Jenkins feels unable to provide a further opinion, notwithstanding the use of such equipment as skype or a video link, then it would be open to the visa applicant to seek an opinion from another psychologist or psychiatrist.
Confidentiality
57.I referred in paragraph 49 above to the ability of this tribunal to make a confidentiality order pursuant s 35 of the AAT Act. It occurs to me that in view of the nature of the pending charges and the involvement of a minor, it may be appropriate for an interim confidentiality order to be made pending the hearing of the present proceedings. In these circumstances, I direct that my reasons for decision in this matter not be published for a period of 14 days from the date of this decision, to enable either party, if so instructed, to apply for an order, pending the hearing of the within proceedings, to prohibit the publication of the name and address of the applicant and of other material before the tribunal. If no such application is made within the above period, these reasons for decision will be published in the usual way.
Decision
58.The tribunal directs that:
(a) the hearing is to proceed in accordance with these reasons for decision;
(b) the application for an adjournment or stay of the proceedings is refused;
(c)until 2 June 2011 or such later date (if any) as the tribunal may determine, the within reasons for decision are not to be disclosed to any person other than the parties, their professional advisers, and the members and staff of this tribunal; and
(d) the parties are at liberty to apply.
I certify that the 58 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis…[Signed]…
AssociateDate/s of Hearing 7 April 2011
Date of final submissions
received 12 May 2011
Date of Decision 19 May 2011
Counsel for the Applicant Mr A Collett
Solicitor for the Applicant Duc Mai Lawyers
Advocate for the Respondent Mr P d’Assumpcao
Solicitor for the Respondent Australian Government Solicitor
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