Last Updated: Wednesday, 27 August 2014, 14:57 GMT

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

Publisher Australia: Federal Court
Publication Date 8 March 2000
Citation / Document Symbol FCA 232
Cite as White v Minister for Immigration & Multicultural Affairs [2000] FCA 232 , FCA 232, Australia: Federal Court, 8 March 2000, available at: http://www.refworld.org/docid/3ae6b7650.html [accessed 27 August 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

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 Act 1976 (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 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.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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: 8 MARCH 2000

PLACE: MELBOURNE (Heard and delivered via videolink)

REASONS FOR JUDGMENT

THE COURT:

Background to the appeal.

1. On 22 October 1999, this Full Court ordered, amongst other things, that the appellant's appeal be adjourned to 24 November 1999 and that the further hearing of the appeal be confined to a consideration of the appellant's claim of actual bias on the part of the respondent. In the course of its reasons for those orders ("the previous reasons"), the Court traced the background to the appeal, noting that the appellant, a citizen of New Zealand, had been convicted in the Supreme Court of the Northern Territory on one count of manslaughter for which he was sentenced to four years' imprisonment and on three counts of committing an aggravated dangerous act for each of which he was sentenced to two years imprisonment. Each of those sentences was to be served concurrently with the others. Subsequently, he was convicted in Western Australia of several serious offences arising out of his driving a motor vehicle while he had a blood alcohol content of 0.22 percent. As a result of those convictions, the appellant was sentenced to several terms of imprisonment each of which was wholly suspended. He was also fined and disqualified for five years from holding a driver's licence.

2. On 9 January 1998, a delegate of the respondent Minister decided that the appellant should be deported, invoking ss 200 and 201 of the Migration Act 1958 (Cth) ("the Act") which empower the Minister to order the deportation of a non-citizen:

"Where:

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who :

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

(B) for periods that, when added together, total less than 10 years; or

(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;"

3. The appellant appealed to the Administrative Appeals Tribunal ("the AAT") against the decision of the delegate and, on 21 May 1998, the AAT set aside the deportation order and remitted the matter to the respondent Minister with a direction that the appellant not be deported. Subsequently, on 14 October 1998, the Minister decided, pursuant to s 501 of the Act, that the appellant was not of good character, that his visa should be cancelled and that a certificate under s 502 of the Act should be issued. So far as is relevant, ss 501 and 502, as in force at the time of the Minister's decision of 14 October 1998, provided:

"501(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a) subsection (2) applies to the person; or

(b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

(i) be likely to engage in criminal conduct in Australia; or

.....

(2) This subsection applies to a person if the Minister:

(a) having regard to:

(i) the person's past criminal conduct; or

(ii) the person's general conduct;

is satisfied that the person is not of good character; or

.....

(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

502(1) If:

(a) the Minister, acting personally, intends to make a decision;

(i) .....

(ii) under section 501; or

(iii) .....

(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(2) A decision under subsection (1) must be taken by the Minister personally.

(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made."

4. The appellant was taken into migration detention on 23 October 1998 as a consequence of the Minister's decision of 14 October 1998. He sought review of that decision pursuant to Pt 8 of the Act.

5. Initially, the appellant was unable to obtain legal representation. He drafted his own application for review, and included in it a claim that the Minister's decision should be set aside on the ground of actual bias.

6. Subsequently, and at the behest of the Court, pro bono assistance was procured for the appellant. Counsel who agreed to appear on his behalf advised the appellant that the claim of bias which the appellant had formulated should not be pursued because there was "nothing to substantiate" that claim. The application for review was amended, and the reference to actual bias was deleted. The outline of submissions prepared by the appellant's counsel did not refer to bias. No mention was made of bias when the application was heard by French J.

7. French J delivered judgment in this matter on 21 May 1999. His Honour rejected each of the appellant's contentions, and dismissed the application for review. Thereafter, the appellant's former counsel ceased to act for him.

8 On 16 July 1999 a Full Court of this Court delivered judgment in Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951. The Full Court, by majority, allowed an appeal against two decisions taken by the Minister under ss 501 and 502 of the Act on the ground of actual bias.

9. The appellant has deposed in an affidavit sworn on 29 November 1999 that he first became aware of the general facts concerning the Jia case when he read an article dealing with the Full Court decision in that case shortly after judgment was delivered. Having discovered that the Minister had been found by the Full Court to have acted with actual bias in relation to Mr Jia, the appellant requested a copy of the judgment from Mr Corbould, the solicitor who had the carriage of the Minister's case against the appellant. The appellant subsequently included in his amended notice of appeal dated 13 August 1999 a ground complaining of actual bias on the part of the Minister.

10. The appellant asserted that, having been in detention throughout the whole of 1999, and having personally known nothing of the facts in Jia at the time that his application for review was argued before French J, he should not now be precluded from relying upon the same facts in support of his claim of bias. The Minister had, after all, accepted the correctness of those facts in Jia, and there was no reason why he should not do likewise in the case of the appellant.

11. Mr Corbould, in a supplementary affidavit sworn on 13 December 1999, deposed that as far back as November 1998 he had had discussions with the appellant's former counsel concerning the decision of French J in Jia. The judgment of French J had been delivered on 1 July 1998. It is reported as Jia Le Geng v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87.

12. Mr Corbould also deposed to having had a further conversation with the appellant's former counsel on 10 May 1999, advising him that the Full Court had heard an appeal from the decision of French J, and that judgment had been reserved.

13. 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

14. 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 Act 1976 (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.

15. 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.

16. 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.

17. 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.

18. The respondent objected to the appellant's attempt to revive, as a ground of review, the actual bias contention which, the respondent submitted, had been expressly abandoned by the appellant before French J.

19. The respondent submitted, as is undeniably the case, that an appeal to the Full Court of this Court pursuant to s 24 of the Federal Court is not an appeal by way of rehearing, but rather an appeal in the strict sense - Duralla Pty Ltd v Plant (1984) 2 FCR 342 at 349-353 per Smithers J (with whom Beaumont J agreed) and at 359-365 per Northrop J; Petreski v Cargill (1987) 18 FCR 68 at 77-8; Minister for Immigration Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ.

20. It does not follow from the restricted nature of an appeal to this Court that it may not receive further evidence on appeal. Section 27 of the Federal Court Act provides:

"27. In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a) on affidavit; or

(b) by video link, telephone or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c) by oral examination before the Court or a Judge; or

(d) otherwise in accordance with section 46."

21. Note also O 52 r 36 of the Federal Court Rules:

"36. (1) This rule applies to any application to the Court to receive evidence in a proceeding on an appeal additional to evidence in the court below.

(2) This rule applies unless the Court otherwise directs.

(3) The application shall be made by motion on the hearing of the appeal without filing or serving notice of the motion.

(4) The grounds of the application shall be stated in an affidavit.

(5) Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the Court to receive shall be given by affidavit.

(6) The applicant shall file any affidavit not later than 21 days before the hearing of the appeal.

(7) The evidence of any other party to the appeal shall unless the Court or a Judge otherwise orders be given by affidavit filed not later than 14 days before the hearing of the appeal.

(8) A party to the appeal shall, not later than the time limited for him to file an affidavit under this rule -

(a) lodge as many copies of the affidavit as the Registrar may direct; and

(b) serve 3 copies of the affidavit on each other party to the appeal."

22. It is clear that the expression "further evidence" in s 27 refers to evidence, not led at the trial, of matters occurring prior to trial - Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ; Florance v Andrew (1985) 58 ALR 377 at 381 per Lockhart J.

23. It should be noted that in CDJ v VAJ (1998) 157 ALR 686 a majority of the High Court (McHugh, Gummow and Callinan JJ) observed that the strictness of the limits upon the reception of fresh evidence referred to by Dixon CJ in Council of the City of Greater Wollongong v Cowan was not necessarily determinative of the manner in which the Full Court of this Court should approach the construction of s 27 of the Federal Court Act.

24. The respondent did not dispute the proposition that this Court has power on appeal to permit an amendment both to an original application or statement of claim considered at first instance, and to a notice of appeal, so as to enable an appellant to raise a point not taken at trial.

25. That concession is plainly correct. The Federal Court Act provides in part in s 28:

"28 (1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

...

(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

...

(3) The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

(4) An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just."

26. The respondent submitted, however, that though there was power to permit the amendments sought, this Court should not, in the proper exercise of its discretion, allow the appellant to raise for the first time on appeal an allegation of actual bias. The respondent relied heavily upon a decision of a Full Court of this Court in Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409. Counsel referred first to the judgment of Lee J at 416 where his Honour observed that s 28 of the Federal Court Act confirmed that the appellate jurisdiction conferred upon this Court provides it with sufficient powers to ensure that the decision given on appeal is just and not constrained by the technical form of the appeal. His Honour then noted that s 27 conferred upon the Court power, in its discretion, to receive further evidence in the proceeding.

27. Lee J said of ss 27 and 28, at 416:

"The appellate jurisdiction and powers so defined would not exclude a discretion in the Court to permit the amendment of an original pleading to raise an issue of fact or law that may be fairly determined upon the existing evidence. ...

Permission to amend the pleading and to take on appeal a point not taken at trial will depend on whether relevant facts have been determined beyond controversy or the question is one of construction of law and it is expedient and in the interests of justice that the point be decided. Leave to amend will not be granted where the effect of the amendment would be the presentation of a new or different case on appeal from that which emerged at trial. (See Bank Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 per Mason CJ, Gaudron J at 284.) Leave to amend in such matters may depend upon demonstration of the risk of occurrence of injustice if the amendment were not allowed and lack of prejudice to other parties if the amendment were allowed."

28. Lee J went on to observe that in Teoh, the point sought to be argued required no additional evidence and involved facts that were not in controversy. Counsel for the Minister had conceded that there would be no prejudice to his client if the amendment to the application sought by the appellant were permitted. His Honour held that it was appropriate in those circumstances for the Full Court to permit the amendment to be made.

29. Carr J at 428-9 referred to the width of the language in s 28(1)(b), and also to the terms of O 13 r 2(1) of the Federal Court Rules dealing with the powers of the Court to permit amendment generally. His Honour then referred to Water Board v Moustakas (1988) 62 ALJR 209 at 211 where a majority of the High Court stated the principle in the following terms:

"Where all the facts have been established beyond controversy or where the point is one of construction of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point ..."

30. Importantly, Carr J went on to hold that the amendments sought by the appellant in Teoh should be allowed notwithstanding the fact that at first instance the appellant, by his counsel, had expressly abandoned the point which he later sought to agitate on appeal. Carr J said at 429:

"Normally such abandonment would in my opinion preclude the grant of leave to amend in this manner. However, in view of the special circumstances concerning the children, discussed below, I would grant that leave. The amendment does not involve any factual controversy. The question is the extent to which the decision-maker is obliged in the factual circumstances of this matter to embark on detailed enquiries as to the likely effect of the decision on the appellant's wife and in particular the seven children."

31. Black CJ at 411 said that he agreed with both Lee J and with Carr J, for the reasons which they gave, that the Court had power to allow the amendments sought and should grant leave to the appellant to make them.

32. The respondent submitted that the effect of the judgment in Teoh in the present case was to preclude this Court from granting leave to the appellant to amend either his application or his notice of appeal. The respondent submitted that the issue which the appellant now sought to agitate in this appeal did not involve any question of construction, or any pure question of law. Nor had the relevant facts been determined beyond controversy. The fact that this Court, in its appellate jurisdiction, has power under s 27 of the Federal Court Act to receive further evidence did not detract from the strict limits upon the power to grant leave to amend, as articulated in Teoh. A new point cannot be raised on appeal if it could possibly have been met by calling evidence below. That principle, the respondent submitted, is to be applied strictly unless one or other of the narrow exceptions specifically instanced in Teoh is made out.

33. It is obvious that the appellant's claim that the decisions taken by the respondent on 14 October 1998 were induced or affected by actual bias rests upon his being able to persuade this Court to receive evidence which was not before the judge at first instance. We are not persuaded that such evidence should be barred on appeal in circumstances where the facts now sought to be relied upon are not themselves in dispute, but only the inferences to be drawn from them. The evidence on which the appellant seeks to rely is precisely that which the Minister, in Jia, accepted for the purposes of that case to be factually correct. Indeed, the Minister has also accepted, for the purposes of this appeal, that the evidence concerning the statements attributed to him in 1997, when he was considering whether or not to order the deportation of Mr Jia, is accurate. An agreed statement of facts to that effect has been tendered on his behalf before this Court.

34. We are unable to accept the submission that we should not receive this evidence. Section 27 of the Federal Court Act plainly empowers us to do so. The only point of substance which was advanced in opposition to the admission of the evidence was that there was a dispute concerning what inferences, if any, should be drawn from the primary facts which were admitted to be true. This Court is in as good a position as any judge at first instance would have been to resolve that issue. None of the limits traditionally imposed upon the reception of "fresh evidence" seem to us to warrant the rejection of the evidence now sought to be relied upon, given the very unusual circumstances of this case. Nothing in the judgment of the Full Court in Teoh requires this Court to refuse the appellant's application to lead further evidence, or his application for leave to amend both the original application and the notice of appeal.

35. We would not consider it appropriate, or just, in the particular circumstances of this case, to fix the appellant with the consequences of what seems to us to have been an error of judgment by his former counsel in abandoning a point which had originally been taken, and which was plainly viable. It would be wrong to permit the Minister's decision to deport the appellant to stand if evidence exists which demonstrates that decision to have been affected or induced by actual bias.

36. The Minister has been given every opportunity to place before this Court any additional evidence upon which he might wish to rely in order to qualify, or to explain, the facts otherwise proved. To a limited degree, he has taken advantage of that opportunity - see the two affidavits of Mr Corbould. The Minister does not suggest that he has suffered any prejudice whatever by reason of the late application to tender this evidence.

37. We are firmly of the view that the appellant should be granted leave to amend both his original application and his notice of appeal, and to adduce the further evidence upon which he now seeks to rely.

The appellant's contention of actual bias.

38. In the previous reasons, this Full Court examined five grounds of appeal including three grounds which the appellant, by notice dated 14 July 1999, had indicated he would seek leave to add on the hearing of the appeal. Each of those grounds of appeal has been rejected. However, we went on to consider a further ground which had been identified for the first time during the course of the hearing of the appeal on 20 August 1999. That ground arose from the decision of another Full Court of this Court in Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 delivered on 16 July 1999 to the effect that the Minister had been guilty of actual bias in the exercise of his powers under ss 501 and 502 in relation to Mr Jia, who had been sentenced to imprisonment for a total of six years and three months on charges of assault occasioning actual bodily harm, unlawful detention and sexual penetration. A delegate of the Minister later refused Mr Jia's application for a Special (Permanent) Entry Permit and, in July 1996, the AAT set aside that refusal and remitted the matter to the Minister, with a direction that the applicant qualified for a Transitional (Permanent) Visa. In reaching that conclusion, the AAT expressly found that, notwithstanding his conviction and imprisonment, the applicant was of good character. That conclusion was set aside by Carr J of this Court on review on 20 December 1996 and the matter was remitted to the AAT. On reconsideration, the AAT again made an express finding that Mr Jia was of good character and remitted the matter to the Minister with a direction that the applicant qualified for a Transitional (Permanent) Visa. However, on 10 June 1997, the Minister decided that Mr Jia was not of good character, that his visa should be cancelled and that he should be declared an excluded person. That decision, in the view of the majority of the Full Court, was vitiated by actual bias, first, because the Minister had, in the course of a radio interview on 14 April 1997, said:

"I don't believe you are of good character if you've committed significant criminal offences involving penal servitude. The law does actually write down that that is the test ..... One of the suggestions that's been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow ....."

39. In the second place, the Minister had written a letter on 30 April 1997 to the President of the AAT, which contained these extracts:

"As published in The Daily Telegraph, I am concerned about a number of recent decisions made by the AAT allowing convicted offenders to remain in Australia .....

.....

There have been two recent decisions by the AAT of decisions refusing a visa on the basis of character, involving Mr Jia and Mr Ram which raised concerns about the adequacy of current legislative powers to refuse visas and the application of those provisions.

In the case of Mr Jia, the Tribunal member appears to have confused the fact that decisions made under s 501 involves (sic) a two-step consideration. The first is to determine if the person is, or is not of good character. If determined not to be of good character, second (sic) determination is whether to exercise the discretion to refuse to grant (or cancel), the visa. The Tribunal finding was that Mr Jia is of good character, and thus eligible for a visa. The Tribunal incorrectly exercised the discretion under s 501 to grant him a visa, despite Mr Jia's sentence to six and half years imprisonment. Before the discretion at s 501 is exercised the person must first be determined to not be of good character, and this was not the case when the AAT purported to exercise the discretion in favour of Mr Jia. The Tribunal incorrectly exercised the discretion under s 501 to grant him a visa.

That persons such as Mr Jia can be found to be of `good character', despite his recent conviction for a serious crime undermine (sic) the Government's ability to control entry into Australia on character grounds. I am concerned that this may set a precedent for decisions by the AAT in the future. To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations. Although I recognise that AAT decisions are not precedential, as a matter of law, such decisions may be viewed by the Tribunal and officers in determining the character requirements under s 501 as the acceptable standard. It would the (sic) undermine the government's desire to protect the Australian community.

.....

I acknowledge that the AAT is an independent Tribunal, which must satisfy itself of the correct and preferable decision on the merits. However, it is difficult to maintain public confidence in the Government's ability to control entry into Australia in the face of decisions like that taken in Mr Jia's case, or where those who have been allowed to remain, following the AAT's overturning of the Government's decision to deport, have re-offended within a fairly short period of time of the AAT's setting aside of the deportation order.

.....

The community's expectations of the Government to prevent entry or remove or deport will not be met if the Tribunal overturns the Government's decisions in relation to those who are not of good character or have committed serious crimes. The recent decisions of non-citizens convicted of serious criminal offences who have had their deportation orders overturned, as well as decisions to overturn the refusal of visas on character grounds, have heightened community concerns especially where a number of these have re-offended. The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia."

40. An analysis of those statements led Spender J and R D Nicholson J independently to conclude that the Minister had prejudged the question of whether Mr Jia could be regarded as a person of good character notwithstanding his conviction and imprisonment on serious criminal charges. A concern that a similar prejudgment might have infected the same Minister's consideration of whether the present appellant could be regarded as a person of good character led us to adjourn the hearing to enable the appellant to adduce further evidence tending to suggest that the Minister had brought the same state of mind to his evaluation of the appellant's character. At the conclusion of the previous reasons, it was observed:

"The argument now sought to be advanced by the appellant on the appeal to this Court is based entirely upon the decision of the Full Court in Jia Le Geng, and, in particular, the actual bias imputed to the Minister by that Full Court. It is a very different argument from that which was abandoned before French J.

Counsel for the respondent submitted, in reply, that merely because the Minister had displayed actual bias in the manner in which he approached ss 501 and 502 of the Act on 10 June 1997 did not entail the conclusion that he had also been guilty of actual bias when he considered the appellant's position on 14 October 1998.

That submission may well be correct, as a matter of logic. There are, however, several countervailing considerations. There is nothing to suggest that the Minister would have understood, at any time before the Full Court published its reasons in Jia Le Geng on 15 July 1999, that his approach to ss 501 and 502 of the Act was erroneous. There is no reason to believe that he would not have approached those provisions in exactly the same erroneous manner when, on 15 October 1998, he decided to cancel the appellant's visa, and to declare him an excluded person.

The judgment in Jia Le Geng at first instance was delivered on 1 July 1998. The judge at first instance in that case (who, coincidentally, was French J) rejected the contention that the Minister had displayed actual bias when he determined that the application for review should be dismissed. The decision of French J would, in all likelihood, have fortified the Minister in his belief that he had acted correctly in cancelling Mr Jia's visa, and in declaring him an excluded person.

As at November 1998, when the appeal to the Full Court in Jia Le Geng was argued, the Minister continued to maintain that he had not erred in cancelling Mr Jia's visa, and in declaring him an excluded person. That hardly suggests that the Minister had changed his views between June 1997 and October 1998.

Counsel for the respondent quite properly drew attention to the fact that in Jia Le Geng there had been a body of evidence placed before the Court, both at first instance and on appeal, in support of the contention that the Minister had displayed actual bias in arriving at the relevant decisions. Indeed, in Jia Le Geng there were agreed facts which facilitated the resolution of the question whether there had been such bias.

It is true that the appellant in the present case has adduced no evidence to support his contention that the Minister approached the exercise of his discretion under ss 501 and 502 of the Act in his case in a biased manner. The appellant is, however, unrepresented. Not surprisingly, he displays little understanding of the relevant principles concerning actual bias, or of their proper application.

We would regard it as inappropriate to dispose of this appeal without affording the appellant the opportunity, which we understand he seeks, to adduce further evidence. .......

It is appropriate, in our view, in the unusual circumstances of this case, where the appellant relies entirely upon findings of fact made by the Full Court in Jia Le Geng, that the respondent file and serve any affidavits upon which he wishes to rely before the appellant is required to file additional material in support of his claim."

41. In response to that direction, an affidavit sworn 17 November 1999 by Peter John Corbould, a solicitor employed by the Australian Government Solicitor, was filed on behalf of the Minister. Exhibited to that affidavit was a Statement of Agreed Facts which had been filed in the proceedings at first instance in this Court between Jia Le Geng and the Minister. On behalf of the Minister it was acknowledged, for the purposes of the present appeal, that the facts recited in that statement were true. That statement was in these terms:

"1. That on or about 14 April 1997 officers of the Department of Immigration and Multicultural Affairs ("the Department") prepared a Background Brief for the use of the Respondent as required. That briefing was not prepared under instructions from the Respondent. A copy of that Brief is annexure "1" to this Statement.

1.1 At that time the Respondent did hold the opinion that 'most Australians would find it difficult to reconcile a six and a half year jail sentence for rape with a finding by a Deputy President of the Administrative Appeals Tribunal that the person concerned is of good character.'

1.2 At that time the Respondent did hold the opinion that 'this latest AAT decision has essentially rejected the court's finding of culpability by finding Mr Jia's behaviour leading to the offences justifiable because of the rape victim's conduct towards him and his own reasonable or unreasonable feelings of jealousy'.

1.3 At that time the Respondent was of the opinion that 'the Government is concerned about the emerging trends for Tribunals to discount the importance the Government attaches to character issues'.

1.4 The Respondent did not publicly express those opinions.

1.5 At that time the Respondent did not hold the opinions that 'the line of reasoning taken by the AAT was beyond comprehension' and that 'most Australians would be appalled that Mr Jia has been found to be of good character'. The Respondent's opinion at this time was better expressed in the Background Brief dated 24 April 1997 which stated "I have difficulty in accepting the line of reasoning taking by the AAT ... I am sure that most Australians would be surprised that a non-citizen with such convictions has been found to be of good character'. A copy of that Brief is annexure "2" to this Statement.

2. That on or about 14 April 1997 the Respondent personally made the statements attributed to him in an interview between Clive Robertson and the Respondent as contained in a transcript of that interview in annexure "3" to this Statement.

3. That shortly after 23 April 1997 a Minute from Mr Abul Rizvi, the Assistant Secretary of the Department's Migration and Temporary Entry Branch, to the Respondent dated 23 April 1997 was provided to the Respondent. Shortly thereafter the Respondent personally instructed Mr Rizvi to prepared a letter to the Applicant indicating that he wished to personally consider the matter of visa cancellation and the making of a declaration under s.502 of the Migration Act and providing the Applicant with an opportunity to make a submission in that regard. A copy of the Minute dated 23 April 1997 is annexure "4" to this Statement. A copy of the letter dated 26 May 1997 sent by the Department to the Applicant in accordance with the Respondent's instructions is annexure "5" to this Statement.

4. On or about 30 April 1997 the Department forwarded a pro-forma letter to Ms Kate Wallace in the Minister's Office for possible use by the Respondent in responding to correspondence from members of the public concerning the AAT decision in relation to the Applicant. A copy of this pro-forma letter is annexure "6" to this Statement.

5. That on 9 May 1997 the Respondent personally signed and sent to a member of the public a letter, a copy of which is annexure "7" to this Statement. This was the only letter sent by the Respondent to a member of the public relating to the Applicant's matter between 30 April 1997 and the making of his decision to cancel the Applicant's visa.

6. That on or about 30 April 1997 the Respondent personally signed and sent to Justice Jane Mathews, President of the Administrative Appeals Tribunal a letter, a copy of which is annexure "8" to this Statement."

42. Also exhibited to Mr Corbould's affidavit was the Minute of Advice from an Assistant Secretary to the Department of Immigration and Multicultural Affairs ("the Department") on which the Minister's decision in relation to Mr Jia had been endorsed. It is fair to say that the Assistant Secretary's advice made it clear that whether Mr Jia should be regarded as not being of good character was an open question to be resolved by the Minister as a "matter for judgment". However, in the penultimate paragraph, the Minister was advised:

"You may take the view that decisions by you to cancel Mr Jia's visa and to declare him to be an excluded person would reflect a view on behalf of the Government, that non-citizens with a criminal record and general conduct as displayed by Mr Jia should not hold a permanent visa, and that where the circumstances are sufficiently serious, should not be permitted to remain part of the Australian community."

43. Mr Corbould then deposed, on information and belief, that the Minister had, between 30 April 1997 and 14 October 1998 considered the application of ss 501 and 502 of the Act to two persons other than Mr Jia and the present appellant. Those other persons had been convicted of criminal offences and had successfully obtained a review by the AAT of a decision to issue a deportation order or to refuse a visa. Exhibited to Mr Corbould's affidavit were the Minutes of Departmental Advice to the Minister in respect of those persons from which names and other identifying details had been deleted.

44. The first of those minutes disclosed that the holder of a permanent residence visa had been sentenced to a minimum term of imprisonment of more than two years as a result of the commission, whilst on bail, of an "organised crime of some magnitude" characterised on appeal as having been "pursued with guile and manifesting gross dishonesty". The Minister decided on an undisclosed date in 1997 that the person to whom that minute referred was not of good character, that his permanent visa be cancelled under s 501, and that he be declared to be an excluded person in accordance with s 502(1).

45. The second minute exhibited to Mr Corbould's affidavit related to the holder of a transitional permanent visa who had been convicted of a series of offences both when under the age of eighteen years and as an adult. His adult convictions included three which attracted sentences of imprisonment for one year to be served concurrently, one for which he was sentenced to three years' imprisonment, another for which he was sentenced to two years and a third for which he was sentenced to six months' imprisonment. He also had an extensive history of traffic infringements. The Minister decided on an undisclosed date in 1998 that the person referred to in this second minute was not of good character, that his visa should be cancelled and that a s 502 Certificate should be issued in respect of him.

46. After his decision in relation to the present applicant, the Minister, on an undisclosed date in 1999, decided that a third visa holder was not of good character but declined, in the exercise of his discretion to cancel that person's visa or to issue a certificate in respect of him under s 502. The edited departmental minute in relation to this person was ambiguous, suggesting in one part that he had been convicted when over the age of eighteen years of an offence for which he had been sentenced to at least two years imprisonment. However, another part of the minute recited that the most serious of his convictions "was for ....... for which a term of ........ months imprisonment was imposed".

47. The test of whether a decision-maker's mind has been so influenced by preconceptions formed before coming to the decision in question, has been variously formulated in the authorities.

48. In Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281, Finkelstein J observed, at 289:

"There are very few cases in the law reports where a finding of actual bias has been made against a judge. This no doubt reflects well on our system of justice. To some extent, however, it is also a reflection of the fact that where a finding of presumed or constructive bias can be made there is no need to consider the much more serious allegation of actual bias. Where the courts have considered the question of actual bias the focus on the inquiry has been whether the decision-maker has brought a "closed mind" to the inquiry: see, for example, Re Gooliah and Minister for Immigration and Citizenship 63 DLR (2d) 224 at 229 and Vakauta v Kelly (1989) 167 CLR 568 at 576; 87 ALR 633. There are conflicting decisions on what needs to be shown to establish that a decision-maker has a "closed mind". One view is that expressed by Devlin LJ in R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167. His Lordship said (at 187) that:

The court might come to the conclusion that there was such a likelihood [of bias] without impugning [the statement of the decision-maker] that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so.

This passage was cited with approval by Lord Goff in R v Gough [1993] AC 646 at 659. On this view actual bias need not be wilful. Another view is that to make out a case of actual bias it is necessary to show that the decision-maker's mind was intentionally closed.

49. His Honour then considered Anderton v Auckland City Council [1978] 1 NZLR 657 at 687 where that other view was expressed and continued, at 290:

"It is hard to see why this approach is correct. I accept that most often actual bias will result from an intentional state of mind. But this will not always be so. For so long as the possibility exists that bias may be unconscious there is no reason in principle why a claim should not succeed in that circumstance. The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point in so far as the validity of the decision is concerned."

50. In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Wilcox J said, at 123:

"Lindgren J [at first instance in Sun] referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (24 June 1996, unreported) that s 476(1)(f) requires an applicant to show "that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case". That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (18 October 1996, unreported). He made three points. First, the fact that a decision maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Second, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Third, it is not enough that the decision maker displayed irritation or impatience or even used sarcasm."

51. In the same case, Burchett J, at 127, adverted to the distinction between apprehended bias and actual bias and continued:

"In my opinion, the statute, when it used Devlin LJ's expression "actual bias", substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say "at least in some respect" because the statute extends to the situation where "the decision was ... affected ... by actual bias". The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional."

52. When Jia itself was considered by the Full Court, Spender J said, at paras 47-49:

"Again, it is not simply a case that the Minister had strong views about Mr Jia's case: the position was that the Minister's statements reveal his view that Mr Jia was a person of bad character, the Minister believing that persons convicted of serious crime were persons of bad character. Nothing could be plainer evidence of the true view of the Minister than his statement in the radio interview:

"I don't believe you are of good character if you've committed serious criminal offences involving penal servitude."

This is not an expression of a preliminary view, capable of alteration, nor the statement of a general rule subject to exception in the particular circumstances of a case.

There is nothing to suggest that the Minister did not believe what he said he believed. All the evidence points to the conclusion that the view of the Minister was that persons convicted of serious crime were persons not of good character. That view is reflected in many of the statements of the Minister and was at no stage resiled from or recanted. In my opinion, the Minister had a closed mind to the precise issue in question."

53. Similarly, R D Nicholson J observed at paras 166-168:

"In my opinion the inferences to be drawn from all the circumstances relied on for the appellant including particularly the respondent's statement on radio on 14 April 1997 and his letter to the President of the Tribunal was that the respondent's view had passed the point of strong prejudgment and reached the point where the respondent was precluded from consideration of all the relevant circumstances in relation to the appellant. The conclusive circumstances for the drawing of this inference are:

(1) The expression of belief by the respondent that a person (which must include the appellant) could not be of good character if they have committed significant criminal offences. The reference to "weighing up" was only directed to the propriety of the course proposed, not to the circumstances relevant to the appellant.

(2) The respondent considered that if the appellant was found to be of good character the Government's aims would be undermined. The respondent as a Minister of the Crown could not therefore embark on a course in relation to the appellant which he considered had that effect.

(3) The Tribunal decision should not set a precedent for the future. The respondent thereby ruled out that he would act to the same effect in the future in relation to the appellant.

(4) The Tribunal decision warranted condemnation. The respondent would not therefore have embarked on a course in relation to the appellant which he considered brought that result.

(5) The Tribunal's decision involved a misconstruction of the tests in relation to character decisions. The respondent would not therefore have been prepared to apply the subsection in possible favour of the appellant as the Tribunal had done.

By those expressions and statements the respondent precluded himself from any possible acceptance of the view that the appellant could be found now to be a person of good character despite his past criminal record. The balanced character of the Departmental memoranda to him cannot disguise the position which the evidence shows the respondent had reached in his mind.

The drawing of these inferences, for which the appellant bears a heavy onus, is aided by the application of the Jones v Dunkel principle applied to the absence of any evidence from the respondent when issues were raised on the evidence for him to answer."

54. That the decision-maker's mind was closed to the requisite extent is not required to be established by reference to his or her express words, either in formulating the decision or the reasons therefor, or before arriving at the decision. As indicated by North J in Sun v Minister for Immigration (supra) at 134:

"Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove. Rarely will the judicial officer expressly reveal actual bias. However, several New Zealand licensing cases do provide some examples of express actual bias. For instance, in Isitt v Quill (1893) 11 NZLR 224, the decision of a Licensing Committee to refuse to renew certain licences was overturned because the Committee members had made pledges in their election campaign to refuse all licences. See also the judgment of Stout CJ in Re O'Driscoll; Ex parte Frethey (1902) 21 NZLR 317. Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances. Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 is the only case which I have been able to find which has been determined by a finding of actual bias based on an inference from the surrounding facts and circumstances.

........

Gooliah demonstrates that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias."

55. Among the matters to which Counsel for the Minister has pointed as negativing the inference of actual bias which the appellant has invited us to draw, is the fact that, before the decision in relation to Mr Jia, the Minister had been advised by the Department that whether Mr Jia could be regarded as being of good character was an open question or "a matter for judgment". However, it must also be borne in mind that the Minister made the adverse decision on Mr Jia after adopting the statement formulated for him in the background brief of 24 April 1997 that "I have difficulty in accepting the line of reason taken by the AAT ..... I am sure that most Australians would be surprised that a non-citizen with such convictions has been found to be of good character."

56. That statement evinced, we consider, a belief that the line of reasoning which had been adopted by the AAT was flawed and that the majority of Australians would regard it as surprising (in the sense of illogical) for a non-citizen convicted and sentenced to terms of imprisonment of the magnitude of those imposed on Mr Jia to be found to be of good character. Due weight must be given to the general nature of that statement and the fact that it was made publicly by a practising politician, who is also the Minister charged with the responsibility of deciding which non-citizens should, and which should not, be permitted to remain in the country. The stance adopted by the Minister was not taken after balancing competing considerations, some tending for and some against an assessment that Mr Jia was of good character. Rather, the Minister's attitude was expressed in unequivocal terms which made it clear that he regarded the competing contention, favoured by the AAT, as quite untenable, a view he believed to be shared by most Australian citizens.

57 We therefore consider that it was plainly open to the majority in Jia to infer that the maker of that statement was incapable of persuasion that the AAT's line of reasoning was acceptable when he came to decide, about six weeks after making the statement, whether Mr Jia was of good character.

58. However, Counsel for the Minister pointed to the fact that between 24 April and 10 June 1997, the Minister had before him the reasons of Carr J published on 20 December 1996, which made it clear that a person convicted of a serious crime and sentenced to a term of imprisonment of not less than the one year specified in s 201(c) could still be of good character. Nevertheless, that did not preclude the majority of the Full Court in Jia from drawing an inference of actual bias.

59. It was further submitted by Counsel for the Minister that what was called the "preliminary view" expressed by him in relation to Mr Jia was "based on a misunderstanding of the applicable law". That misunderstanding having been corrected, so the argument went, the Minister could be assumed to have brought a fair and unprejudiced mind to the assessment of Mr Jia's character. That was an argument which Cooper J in para 103 of his dissenting judgment in Jia found persuasive. However, in our respectful view, the statements made by the Minister before 10 June were not couched as expressions of his understanding of the applicable law. Rather, they were assertions by a politician of what he considered, as a matter of policy, the majority of right-minded members of the Australian community looked to him to ensure would be implemented in the administration of the country's immigration laws. It was, accordingly, much harder for the Minister to resile from the views so expressed than it would have been to discard, after receiving better advice, an erroneous opinion which he had previously expressed about the applicable law.

60. This is an unusual case in that the appellant relies on the reasoning of the majority in Jia, not as establishing some applicable principle, in the sense of what is traditionally called the ratio decidendi, but rather to draw an inference as to what the Minister's state of mind was on 10 June 1997. That reliance is available to the appellant only because a conclusion as to the same fact is relevant to what he asserts was the Minister's state of mind on 14 October 1998, and because there is no significant difference between the evidence from which the majority in Jia drew the inference they did and the evidence before this Full Court.

61. The general rule that one Full Court of this Court should follow an earlier decision of another Full Court has recently been re-stated in these terms by Merkel J in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 at 687:

"It is well recognised that this court is not bound by its previous decisions but will normally follow an earlier decision unless convinced it is wrong: see Chamberlain v R (1983) 46 ALR 493; 72 FLR 1 at 8-9 per Bowen CJ and Forster J; Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 592; Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 304, 315, 333; 120 ALR 274; Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 111; 123 ALR 503 and Qantas Airways Ltd v Cornwall (Fed C, Burchett, Cooper and Finn JJ, 24 July 1998, unreported). The principle was stated in Nguyen v Nguyen (1990) 169 CLR 245 at 269; 91 ALR 161 at 178 per Dawson, Toohey and McHugh JJ:

"Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law: see Queensland v Commonwealth (1977) 139 CLR 585 at 620 et seq; 16 ALR 487, per Aickin J.""

62. That statement was related to the more usual case in which the Court is invited to depart from some principle of law enunciated by an earlier Full Court. The policy considerations in favour of a later Full Court adopting a finding of fact made by an earlier Full Court are not as strong. The function of an appellate court in reaching conclusions of fact by drawing inferences from facts which are undisputed, or have been found at first instance, has been succinctly described in the joint judgment of Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 at 551. After an extensive review of the relevant authorities, their Honours concluded:

"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation."

63. The task of drawing inferences which has confronted this Full Court is not the same, even in respect of the Minister's state of mind on 10 June, as that on which French J and the Full Court in Jia were engaged. That is because the parties in the present case had the opportunity to adduce further evidence. Even where, as here, the parties have not availed themselves of that opportunity, that fact of itself has a bearing on the drawing of the relevant inferences. That is because notice that his own state of mind was in issue can be imputed to the Minister so that his failure to avail himself of the opportunity afforded to him to give direct evidence of his own state of mind attracts the application of the principle enunciated by Windeyer J in Jones v Dunkel (1959) 101 CLR 298 at 321 that:

"Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his cause."

64. That principle has recently been applied, in circumstances analogous to the present, by Goldberg J in White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169 at 226 citing Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 per Handley JA at 418-19. Significantly, the principle in Jones v Dunkel was also invoked by R D Nicholson J in Jia where his Honour said (paras 168-169):

"The drawing of these inferences, for which the appellant bears a heavy onus, is aided by the application of the Jones v Dunkel principle applied to the absence of any evidence from the respondent when issues were raised on the evidence for him to answer.

The Jones v Dunkel principle may be applied in respect of a Minister: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 66 FCR 40 at 62. The respondent was on the evidence relating to his statements required to explain or contradict why they did not have the consequence that he would not allow any circumstances in which the appellant could be found to be of good character. The failure to give such evidence is unexplained."

65. We consider that the application of the principle in Jones v Dunkel to the circumstances of the present case makes it easier, in the absence of any further cogent evidence, to draw the inference which commended itself, on the same facts, to Spender J and R D Nicholson J in Jia. Although we have given weight and respect to the judgment of French J at first instance, and to the dissenting reasons of Cooper J on appeal, in Jia, we have decided on balance to draw the same inference as the majority of the Full Court as to the Minister's state of mind on 10 June 1997.

66. We accept that the decision of the majority of the Full Court in Jia does not pre-empt a finding about the Minister's state of mind when he came, on 14 October 1998, to determine whether the appellant was of good character. It is true that the Minister had before him the expression of the correct legal view that conviction of a serious offence and imprisonment for more than one year does not necessarily entail that a person is of bad character. He also had the Departmental submission enjoining him that:

"Before determining whether [the appellant] is, or is not, a person who is not of good character you will need to consider any relevant matters that existed at the time of the offences and whether [the appellant] has engaged in any recent good conduct."

67. We have not disregarded the fact that the Minister, between 10 June 1997 and 14 October 1998, made two further decisions in relation to persons who had been sentenced to terms of imprisonment in excess of one year. When making those decisions, the Minister had the benefit of Departmental submissions which did not suggest that no other course than refusal of a visa was open. The submissions directed the Minister to the need to consider any recent good conduct of the respective applicants. However, for reasons already outlined, we have inferred that what, continuously between 10 June 1997 and 14 October 1998, closed the Minister's mind to the possibility of a decision favourable to a person in the appellant's circumstances, was a perception that, as a matter of policy or sound administration, rather than law, a person who had been sentenced to more than one year's imprisonment could not be of good character.

68. No other facts have emerged which tend to support an inference that the Minister's view had changed in any relevant respect between 10 June 1997 and 14 October 1998. The contrary inference is made easier to draw by resort to the rule in Jones v Dunkel because only the Minister could give direct evidence of his own state of mind. If he had not the closed mind imputed to him by the majority in Jia, or if he had undergone a change of mind before he made his determination in respect of the appellant, he was peculiarly able to depose to that effect. It is understandable that a Minister of the Crown might be reluctant to testify to the thought processes involved in a decision taken in the course of administering his portfolio and to expose himself to cross-examination on that testimony. However, there was no reason to think that any cross-examination in the present case would not be kept within proper bounds. As well, the Minister has chosen to adduce evidence, particularly by the exhibits annexed to Mr Corbould's affidavit, of the objective facts brought to his attention for the purpose of making his decision about the appellant. Accordingly, we do draw the inference allowed by Jones v Dunkel that any evidence which the Minister could have given about his state of mind at any relevant time would not have helped his case.

69. 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

70. 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.

71. 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.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated: 8 March 2000

Counsel for the appellant: Mr M Christie

Solicitor for the appellant: West Australian Legal Aid Office

Counsel for the Respondent: Mr R R S Tracey Q C with Mr P R Macliver

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 24 November 1999

Date of Judgment: 8 March 2000

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