White v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

White v Minister for Immigration & Multicultural Affairs [2000] FCA 232

MIGRATION LAW - exercise of discretion to authorise deportation of named individual - where express statement of views led to finding of actual bias in relation to another applicant in similar circumstances - where no subsequent disavowal of views held to constitute actual bias - whether statements affected discretion exercised in current case - whether decision to cancel visa similarly affected by actual bias.

PROCEDURE - circumstances in which Full Court should follow a previous Full Court decision - whether Full Court should allow amendment to raise ground of appeal not raised at first instance - circumstances in which Court should allow appellant to adduce further evidence.

Migration Act 1958 (Cth) ss 200, 201 and Pt 8
Federal Court of Australia Act1976 (Cth) ss 24, 27 and 28

Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951
Jia Le Geng v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87
Duralla Pty Ltd v Plant (1984) 2 FCR 342
Petreski v Cargill (1987) 18 FCR 68
Minister for Immigration Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
Florance v Andrew (1985) 58 ALR 377
CDJ v VAJ (1998) 157 ALR 686
Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409
Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281
Anderton v Auckland City Council [1978] 1 NZLR 657
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Water Board v Moustakas (1988) 62 ALJR 209
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664
Warren v Coombes (1979) 142 CLR 531
Jones v Dunkel (1959) 101 CLR 298
White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
R v Australian Stevedoring Industry Board;  Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310
Khadem v Barbour (1995) 38 ALD 299
Gunner v Minister for Immigration and Multicultural Affairs [2000] FCA 200

TE WHETU WHAKATAU WHITE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS:  W 43 of 1999

RYAN, NORTH & WEINBERG JJ

8 MARCH 2000
MELBOURNE (Heard and delivered via videolink)


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 43 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TE WHETU WHAKATAU WHITE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

RYAN, NORTH and WEINBERG JJ

DATE OF ORDER:

8 MARCH 2000

WHERE MADE:

MELBOURNE (Heard and delivered via videolink)

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.        The decision of the respondent of 14 October 1998:
           (a)       that he was satisfied that the appellant was not of…

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Details
Case
[2000] FCA 232
Decision Date

CaseChat Overview and Summary

In the case of White v Minister for Immigration & Multicultural Affairs, the appellant contested the Minister's decisions to cancel his permanent residence visa and to declare him an excluded person on the grounds of actual bias. The central issue was whether the appellant was entitled to amend his application and notice of appeal to include new evidence of bias, and whether he was estopped from doing so due to his prior knowledge or failure to act with reasonable diligence. The appellant argued that he was unaware of the facts supporting the bias claim until after the initial hearing and that it would have been futile to argue the point before the same judge who had previously dismissed similar evidence in another case. The respondent contended that the appellant should have known about the bias or could have discovered it with reasonable effort.

The court found that the appellant had indeed made out a substantial case of bias, considering the Minister's previous stance on the issue and the absence of a direct disavowal by the Minister. Consequently, the appeal was allowed, and the Minister's decisions were set aside. The court also noted that the appellant's visa would revive upon the issuance of the orders, leading to his release from detention. Regarding costs, the court decided to stand over the matter for further consideration, inviting written submissions from the parties by specific dates if they wished to contest the proposed cost orders.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the respondent of 14 October 1998:

(a) that he was satisfied that the appellant was not of good character; and

(b) that the appellant's visa be cancelled;

be set aside.

3. The question of costs be stood over for further consideration to a date to be fixed being not before 29 March 2000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Corbould’s evidence was led on behalf of the respondent to support a contention that the appellant was relevantly aware, at the time this matter was dealt with at first instance, of the facts underlying the complaint now made of actual bias on the part of the Minister. It was submitted that he should be deemed to have chosen deliberately not to pursue that issue. The evidence was also led to support a contention that the appellant could, with reasonable diligence, have discovered the facts which had been relied upon in Jia as the basis for the claim of actual bias in that case. The appellant should not, therefore, be permitted to adduce any further evidence regarding those matters in the appeal to this Court. The applications for leave to amend and to adduce further evidence The appellant submitted that he should be granted leave to amend both his original application and his notice of appeal to enable him to argue that the respondent’s decisions to cancel his permanent residence visa and to declare him an excluded person had been induced or affected by actual bias. The basis for the appellant’s contention was that further evidence, now available to him, and sought to be adduced pursuant to s 27 of the Federal Court of Australia Act1976 (Cth) ("the Federal Court Act"), would demonstrate that the respondent had prejudged the issue of whether the appellant was a person of good character by having previously determined that anyone who had been convicted of a serious crime, and who had been sentenced to a term of imprisonment in excess of one year, could not be regarded as being of good character. The appellant contended that he should be permitted to amend both his application and his notice of appeal, and to rely upon this further evidence, because, at the time his application was heard by French J, he had not personally been aware of any of the facts which tended to support a claim of actual bias on the part of the Minister. He had not learned of those facts until the judgment of the Full Court in Jia had come to his attention. He claimed he could not with reasonable diligence have discovered any of those facts. The appellant also submitted that it would have been pointless, as a matter of practical reality, for his counsel to have endeavoured to persuade French J (who was, of course, the judge at first instance in Jia as well as the judge at first instance in the present case) that the material which French J in Jia had already held did not constitute actual bias did constitute such bias in the present case. Finally, the appellant submitted that his former counsel’s failure to argue actual bias before French J had not led to any prejudice to the respondent. The evidence upon which the appellant now sought to rely to make good his claim of bias was essentially non-contentious, and the primary facts were not disputed by the respondent. Moreover, the Minister had been given ample opportunity by this Court to adduce any additional evidence upon which he might seek to rely in answer to the appellant’s contention of actual bias.

Decision

Reasons for decision

We acknowledge that a person affected by a decision who asserts bias must make out a "substantial case"; see eg. R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116, Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310, and Khadem v Barbour (1995) 38 ALD 299 at 306. However, for the reasons already explained, we consider that the present appellant, in the absence of any direct disavowal by the Minister of the closed mind imputed to him by the majority in Jia, has made out such a case.Conclusion For the reasons outlined above, the appeal must be allowed and the Minister's decision of 14 October 1998 that he was not satisfied that the appellant was of good character and that the appellant's visa be cancelled, must be set aside. For reasons explained by Sackville J in his recent judgment in Gunner v Minister for Immigration and Multicultural Affairs [2000] FCA 200 (unreported, 3 March 2000), the Minister's decision under s 502 of the Act was necessarily made as part of the decision to cancel the visa on one of the grounds specified in s 501. Accordingly, the decision that a certificate issue under s 502 declaring the appellant to be an excluded person must fall with the decision under s 501 which the appellant has successfully impugned. Consequently, as we understand it, the appellant's visa will revive upon the making of the orders which we propose and he should be released from migration detention accordingly. Our tentative or provisional view, formed without the benefit of submissions from Counsel, is that there should be no order as to the costs of the proceedings at first instance, or on appeal, except in respect of costs incurred by the appellant after 22 October 1999. Our present feeling is that those costs should be paid by the Minister. Should either party wish to contend that we should make some different or further order as to costs, that party should file and serve, by 21 March 2000, written submissions embodying those contentions. Any submissions in reply should also be in writing and be filed and served by 28 March 2000.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.