Century Metals and Mining NL v Yeomans and Anor

5. By letter dated 24 July 1992, the Australian Government Solicitor informed the solicitors for the applicant that the Minister consented to the decision then under review being set aside and "a fresh decision being made concerning your client's application for a resident visa... I confirm also that my client offers to re‑interview your client with a view to allowing him an opportunity to clarify certain information relating to this application". 6. In July 1992, the application in proceedings No WAG 31 of 1992 was dismissed by consent. 7. On 27 August 1992 the applicant was interviewed in Hong Kong for the purpose of re‑considering his application for a Class 122 visa. Prior to this interview, the respondent's department submitted certain questions to the applicant. At the interview, the applicant was informed that he was given seven days "in which to make a submission". By letter dated 28 August 1992, Business Migration Services Pty Ltd, acting on behalf of the applicant, informed the Australian Consulate‑General in Hong Kong that the applicant would not be submitting further material. A decision on his application was requested. 8. By letter dated 30 October 1992, the Minister, by his delegate, informed Business Migration Services Pty Ltd that he had decided to refuse the application. 9. On 26 November 1992 the applicant filed a further application to this Court (No WAG 195 of 1992) seeking judicial review of the decision made on 30 October 1992 ("the 1992 application"). 10.The 1992 application was heard by Beaumont J on 19 and 20 October 1993 and his Honour's reserved judgment was delivered on 22 October 1993. His Honour dealt with three of the applicant's grounds for judicial review, namely denial of natural justice, taking into account irrelevant considerations and error of law. His Honour found that there had not been a denial of natural justice and that the decision‑maker had not taken into account irrelevant considerations. However, his Honour held that an error of law had been made which it appeared was likely to have influenced the decision‑maker. It is not necessary for the purpose of these proceedings to describe the particular error of law. The matter was remitted to the respondent for determination according to law. 11.On 12 September 1994 the respondent once again refused Mr Chu's application on the ground that he did not meet the "good character" requirement of the Public Interest Criteria in the Migration Regulations, and declined to exercise his discretion to waive that requirement. 12.On 17 October 1994, Mr Chu filed an application in this Court for judicial review of that decision."

The grounds on which this application is brought are that there has been a denial of natural justice; the decision‑maker took into account irrelevant considerations; the decision‑maker failed to take into account relevant considerations; there was an error of law in the making of the decision; there was no evidence to support it; it was unreasonable and also involved an improper exercise of power and an abuse of power. The relief sought by the applicant is an order quashing the decision under review and declarations that the applicant is not a person who is taken not to be of good character within the meaning of reg4(1) of the Migration Regulations 1989; and that there are no reasonable grounds upon which the respondent could form the reasonable belief that the applicant had been involved in activities indicating contempt, or disregard for the law within the meaning of Migration Regulation 4(1)(a)(iii), or that the applicant had at any time been convicted of an offence in circumstances indicating such: reg4(1)(b). Finally, the applicant seeks an order directing the respondent to grant the applicant's application. Evidence Three affidavits all sworn by the solicitor in the office of the Australian Government Solicitor having the conduct of the matter are relied on by the respondent. The applicant relies upon the affidavit of the applicant affirmed on 18 November 1995 and an affidavit of Allan Hodder ("Hodder"), Managing Director of Australian Visa and Migration Services Pty Ltd, formally known as Business Migration Services Pty Ltd. Objections to the latter affidavit were withdrawn at the hearing. The objections to the applicant's affidavit are disallowed for the following reasons: Objection (a) Objection on the ground of relevance not allowed on the basis that, in the absence of written reasons, the "recommendation document" there referred to is arguably relevant.

Objection (b) On the basis the sentence is read as referrable to the state of mind of the applicant, the objection is disallowed. Objection (c) The sentence is capable of being read as a statement of fact and contentions that it is argumentative or contains a conclusion or implicit assumption are not made out. Objection (d) Objection on the ground that the sentence refers to evidence of the contents of a document in evidence not allowed on the basis that the sentence states a factual matter to establish a context relevant to the remainder of the paragraph. Objection (e) This sentence may be read as a factual statement so that objections on the ground it is argumentative contains conclusions or is not relevant and suggests a merit review are not made out. Objection (f) Objection to par18 on the ground it is argumentative is not allowed. It contains statements of fact concerning the involvement of the applicant in the decision‑making process. Objection (g) Paragraphs 19, 20, 21, 22 and 23 are objected to on the ground of relevance. They set out evidence of surrounding circumstances and, particularly so far as they provide evidence of what was said by the applicant in relation to Triads or Triad activities, and as to his ability to communicate, they are potentially highly relevant to the grounds of the application, including the argument of bias. Objection (h) The last two sentences in par30 are not irrelevant, the delegate having been specifically referred to in the content of the document referred to.

Objection (i) Paragraph 31 is not irrelevant on the ground that it suggests a merits review, no such question being raised by the application. Objection (j) Paragraph 34 is relevant and is capable of reading in a non-argumentative manner. Objection (k) Paragraph 35 is likewise capable of being read as a factual statement and the objection on the ground it is argumentative is not allowed. Abuse of process The respondent seeks to have struck‑out paragraphs of the application addressing the issues of denial of natural justice and the associated issue of legitimate expectation as well as the grounds relating to irrelevant considerations, no evidence and unreasonableness on the basis these matters were or should have been dealt with in the proceeding before Beaumont J. The respondent also seeks to raise issue estoppel in relation to the grounds of no evidence and unreasonableness. To support these contentions the case for the respondent relies upon the fact that the issues raised by the above mentioned paragraphs in respect of abuse of process were "either identical to, or in substance the same as" paragraphs in the applicant's application in the proceedings before Beaumont J. Furthermore, the evidence and material which was before the respondent's delegate for the making of the 1994 decision is said by the respondent to have been essentially identical to the evidence and material before the maker of the 1992 decision at issue before Beaumont J.

The jurisdiction of the Court to dismiss an action as an abuse of process is one which "ought to be very sparingly exercised, and only in very exceptional cases": Lawrence v Lord Norreys and Ors (1890) 15 AC 210 at 219, per Lord Herschell. The Court must examine "the whole probabilities of the case, and the judicial history of the claim" - at 222, per Lord Watson. An abuse of process will not be constituted by a failure to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. The statement by Lord Kilbrandon to that effect in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590 was found in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602 to have be not supported by authority. The respondent's case on this aspect relies particularly on the decision in Roser v Immigration Review Tribunal (No 2) (1992) 29 ALD 182. It is contended that, as in Roser, the present proceeding is no more than an attempt by the applicant to reiterate matters that were decided adversely against him in the previous proceedings. In Roser a delegate of the Minister refused an application for a December 1989 (temporary) entry permit on 22 December 1991. On 4 May 1992 the Immigration Review Tribunal affirmed that decision. On appeal to the Court the respondent moved for dismissal on the ground of abuse of process. Roser had earlier applied in 1990 for an extended eligibility (family) entry permit. Following rejection of that application he had unsuccessfully sought to have the decision reviewed by the Tribunal and then to appeal from the Tribunal's decision to the Court. O'Loughlin J said: "Does the present appeal amount to an abuse of process? The High Court has made it clear that "the onus of satisfying the court that there is an abuse of process lies upon the party alleging it": Williams v Spautz (1992) 107 ALR 635 at 649 per Mason CJ, Dawson, Toohey and McHugh JJ; the court also agreed with Scarman LJ in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 that the onus was "a heavy one". A court will only grant a stay on such grounds when the action is clearly "without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff": Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720 per Dixon J. Williams v Spautz also makes it clear that the criterion for abuse of process is whether an improper purpose was the predominant purpose; it adopted the following passage from Slade LJ who gave the judgment to the Court of Appeal in Metall und Rohstoff v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 469. "...a person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed.""

O'Loughlin J continued by stating that repetitive processes can amount to an abuse of the process of the Court, citing Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1988) 84 ALR 337 which involved the possibility of a succession of applications for injunctive relief brought by a succession of applicants. That is not the case here, nor is it the case that the respondent relies on any predominant improper purpose on the part of the moving party. However, abuse of process may be constituted where claims advanced are untenable and have no chance of success or because the same issues have been litigated previously, even though the proceedings, remedies and parties are not precisely identical but are in all essential respects the same: R v Lessur‑Millar (1990) 47 A Crim R 111 at 117. In Roser O'Loughlin J found that the application for the December 1989 (temporary) entry permit was based on no more than a regurgitation of the material that had been placed before the Tribunal on the first application and been found wanting. The effect of the later application was to postpone any risk of deportation. The Court therefore inferred that Roser was using the entry permit system of applications in the review and appellate hierarchical structure of the Tribunal and Court to prolong his stay in Australia. Hence it found an abuse of process. That is not the position here. Even the submissions for the respondent do not maintain the evidence before the maker of the 1992 decision was identical with the 1994 decision. Furthermore, the orders of Beaumont J recommitted the matter to the decision‑maker so that a further decision was required. The 1994 decision resulted. The applicant is now exercising his rights in relation to that decision, albeit substantially based upon the same evidence upon which he relied in relation to the 1994 decision. I very much doubt that the exercise of rights of review for the first time in relation to a fresh administrative decision not the product of any repetitive initiative of the applicant could be characterised as abusive. When the matter came before Branson J she was required to consider, so far as abuse of process is concerned, whether the pleading disclosed no reasonable cause of action or had a tendency to cause prejudice, embarrassment or delay, or was otherwise an abuse of process of the Court - Federal Court Rules, O11 r16. Branson J dealt with each of the relevant paragraphs as follows: • Par1 - (Denial of natural justice) It was premature to consider the question because the applicant had not placed before the Court the evidence upon which he proposed to rely with respect to his grounds of application. While Branson J anticipated the submissions would be in part repetitive of arguments put before Beaumont J, she was not satisfied that the ground was an abuse or doomed to failure. • Par2 - (Irrelevant considerations) The same reasons as for par1. • Par5 - (No evidence) and Par6 - (Unreasonableness) These were the same as two grounds abandoned before Beaumont J because of the applicant's inability to gain access to the confidential material which had been held to be the subject of public interest immunity. Beaumont J did not rule on the grounds and Branson J was not prepared to assume the course of the present hearing would necessarily be the same as that before Beaumont J. It is apparent in any event that in order to determine whether the case on the present application differs from the evidence on the previous application, it is necessary to traverse both cases and thus to engage in an examination "of an extensive kind": cf General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ. In short, it appears preferable to proceed to examination of the substantial case, to consider what additional evidence was relevant to the 1994 decision and then to return to the submissions on abuse only if necessary. In respect of the grounds of no evidence and unreasonableness, the grounds on which Branson J withheld a ruling on the abuse of process issue are affected by an application before me made on behalf of the applicant for the Court to view the confidential material. If the Court declines to so view, the position will be identical to the position before Beaumont J. Issue estoppel The question of issue estoppel is now only raised on behalf of the respondent in relation to the grounds of no evidence and unreasonableness. In Westpoint Corporation Pty Ltd v Coles Supermarkets Australia Pty Ltd (R D Nicholson J, 18 December 1996, unreported) I have recently set out what I understand to be the judicial history of the Anshun principle and I do not repeat that here. Branson J held it had no application to any of the paragraphs because: "The current application is not the same matter as that which was the subject of the litigation before Beaumont J. It is based on a different cause of action. There is no risk of conflicting judgments resulting. The precise issues decided by Beaumont J on the previous application are not as a matter of law the issue raised by the current application (Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs apptd - in liq) (1993) 115 ALR 377 per Burchett J at 401‑405."

While it is the case, as submitted for the respondent, that the High Court in Anshun did not hold the principle of issue estoppel in the extended sense could only apply where conflicting judgments would result, it is also the case the current application is not the same matter which was litigated before Beaumont J. This is a different cause of action. In my opinion, if these grounds are not an abuse of process, issue estoppel is not applicable in relation to them here. Evidence arising since decision of Beaumont J The following evidence arose subsequent to the decision of Beaumont J on 19 October 1993: (1) On 26 October 1993 Business Migration Services wrote on behalf of the applicant to the respondent requesting further details of the allegations "summarised at par6 of Mr [Callanan's] memorandum of 30 October 1992 to the First Assistant Secretary, Entry, Compliance and Systems Division" (referred to in Beaumont J's reasons as "the Departmental report" and referred to here as "the 1992 Departmental report"). No information was provided. (2) A file note ("the file note") dated 3 November 1993 by an unidentified person recorded a note of a conversation to a person on 29 October. It is not disputed this is a reference to 29 October 1993. The relevant portion of the file note states: "She had seen press report of court decision and reached the view that decision was proved to [be] wrong "on a technicality", ie not "morally wrong". She anticipated that we would again refuse case. I told her that we were of the same view..."

(3) By letter dated 30 May 1994 Mr T MaGuire, the Senior Migration Officer from the Australian Consulate General, Hong Kong Migration Office ("the Departmental officer"), sent the applicant a letter enclosing a draft of a submission ("the draft 1994 Departmental report") which he stated would form the basis for the decision on the reconsideration of the applicant's application. The draft 1994 Departmental report was in substantially the same form as the 1992 Departmental report. (4) On 14 June 1994 Business Migration Services forwarded a response ("the agent's submission"). Included in the response was the assertion that the draft completely disregarded the evidence of Mr Ho in an affidavit sworn on 28 January 1993 and filed in the proceedings before Beaumont J ("the Ho affidavit"). The agent's submission stressed it was crucial that the Ho affidavit be examined in some detail. (5) On 3 August 1994 the Departmental officer settled the 1994 Departmental report to the Regional Migration Director and signed it. Apart from minor amendments, the submission added reference to advice that Ho and the applicant had known each other since April 1990 and referred to the submission of the applicant's agent dated 14 June 1994, directing attention to it. In one respect the document remained unamended - namely, no adjustment was made to the period of time which had elapsed between the commission of the applicant's last criminal offence and the date on which his application was being reconsidered. Under the heading "reasons for the decision" consideration was given to the application of Migration Regulation 4(1)(b) and then reg4(1)(a)(iii). In it he recommended the Director: • determine the applicant was not a person of good character by virtue of regs4(1)(a)(iii) and (b); • determine therefore he did not meet the "good character" requirement of the Public Interest Criteria at reg2; • did not exercise his discretion to waive the "good character" requirement under reg143;

• refuse the applicant's application for a Class 122 visa. Then followed the following endorsement: PUT IN PHOTOCOPY OF INSERT `Z' (6) On 20 September 1994 the delegate wrote to the applicant advising that after careful reconsideration "I have taken the decision to refuse your application to migrate to Australia on the grounds that the good character requirement has not been satisfied". Reasons for the 1994 decision For the applicant it is contended that by way of inference the 1994 decision was made for the reasons set out in the 1994 Departmental report. For the applicant it is submitted the adoption by the delegate of the recommendation without dissent or qualification of any of the reasoning behind the recommendations, leads to the inference the 1994 Departmental report sets out the reasoning of the delegate. Furthermore, it is submitted in the absence of any evidence led by the respondent of the reasons of the delegate, that inference can be more confidently drawn.

The applicant's contention is supported by reference to Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87. There the respondent submitted that the Departmental report should be treated as virtually irrelevant. Hill J rejected the submission, firstly on the ground the letter to the applicant from the Department communicating the adverse decision adopted the reasons in the Departmental report and secondly, if that was not the case, the consideration of the Departmental report by the Review Panel which attached the report to its recommendation to the Minister made possible the inference, in the absence of contrary evidence, the Panel adopted the recommendation of the Departmental officer contained in the Departmental report and in turn the delegate of the Minister did the same. Hill J continued (at 93): "Indeed, the failure of the delegate to give any evidence as to the reasons for his decision enables me more confidently to draw that inference: cf Jones v Dunkel (1959) 101 CLR 298; Citibank Ltd v Commissioner of Taxation (Cth) (1988) 88 ATC 4,714 (affirmed on this point: see Commissioner of Taxation (Cth) v Citibank Ltd (1989) 20 FCR 403 and Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court of Australia, Hill J, No 828 of 89, 12 December 1989)."

Submissions for the applicant also referred to the reasons of French J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1993) 115 ALR 125. At 137 French J said that in the absence of any evidence from the Minister himself, the basis of the Minister's decision had to be inferred from other material before the court. For the respondent it is contended there is no basis for the drawing of any such inference so there is no evidence before the Court of the reasons of the delegate. The consequence, it is submitted, is that the present case of the applicant falls over save and in respect of arguments concerning unreasonableness and bias.

To support this reliance is placed on the approach taken by Carr J in Irving v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 529. At 536, his Honour set out the terms of the letter of advice on behalf of the delegate to the applicant in that proceeding which communicated only the Minister's conclusion and expressly excluded one particular basis from the Minister's reasoning. The letter was admitted against objections as to relevance and hearsay but Carr J concluded nevertheless it did not establish the respondent took into account three matters which it was contended were irrelevant considerations to the assessment of the good character of the applicant in that case. However, on the assumption the delegate did so, he proceeded to consider whether they were irrelevant considerations. The respondent's case also places reliance on the decision of Einfeld J in Plathara v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 ALD 469. At 472 the terms of the advice to the applicant is set out. It included the statement: "The enclosed papers set out the relevant policy issues and explain the reasons for the decision. They will help you to understand why the refusal decision has been maintained."

The relevant papers were constituted by the Departmental report. Einfeld J said at 473: "As the panel gave in substance no reasons for its conclusions, and the delegate merely accepted the panel's recommendation, it must be assumed that the panel and the delegate adopted the departmental document."

He supported the drawing of such inference by reference to Surinakova. For the respondent it is contended the statement in the letter in Plathara constituted an adoption. That, however, is not the basis of the reasoning of Einfeld J which relies on the drawing of inferences, albeit in the context of the statement in the letter of advice. So far as Surinakova is concerned, the respondent's contention is that the writer of the letter who was acting with the delegate's authority specifically adopted the reasons in the Departmental report as the reasons of the delegate. That, however, was only the first of the alternative bases upon which Hill J decided, the second being by reliance on the drawing of inferences in the circumstances. It is also sought to distinguish Surinakova by the fact that there the Departmental report had been considered by the Review Panel and attached to its report. In my opinion, that is not a material point of distinction. Submissions for the respondent also referred to the reasoning of Foster J in Ju Sheng Zia v Minister for Immigration, Local Government and Ethnic Affairs (1991) 27 ALD 668. At 669 Foster J said that although he did not have the reasons of the delegate's decision before him, he was prepared to accept they corresponded with the recommendations made in the report to the panel, citing Surinakova. In the present proceeding the letter of advice from the delegate to the applicant advised only that the decision had been taken to refuse the application "on the grounds that the good character requirement has not been satisfied". There is nothing in the letter upon which to found any argument of adoption of the reasons in the Departmental report. However, the Departmental officer when forwarding the 1994 Departmental report to the applicant advised it would form the basis of the reconsideration. Furthermore, the delegate accepted recommendations based on the reasons in the 1994 Departmental report. It is relevant that the acceptance of the recommendation is endorsed upon the last page of the 1994 Departmental report. It is not possible to provide to the applicant a copy of the delegate's decision without providing to him the document upon which it is endorsed.

In those circumstances, and in the absence of any evidence of dissent by the delegate from the reasons in the 1994 Departmental report, I consider the reasoning of Hill J in his second approach based on inference is applicable in these circumstances. The approach of Carr J was taken apparently without his attention having been directed to the reasoning in Surinakova and the reliance placed on that reasoning in other decisions of this Court. I therefore draw the inference that the reasons for decision of the delegate were those set out in the 1994 Departmental report. It follows the respondent's submission that the case of the applicant must fail other than in relation to the grounds of unreasonableness and bias cannot be accepted. Legislative scheme It is not in dispute that the decision was made as a result of the delegate's determinations that the applicant was not a person of good character by virtue of regs4(1)(a)(iii) and (b) of the Migration Regulations 1989 and that he did not therefore meet the "good character" requirement of the Public Interest Criteria in reg2. The delegate further chose not to exercise his discretion to waive the "good character" requirement under reg143. The relevant statutory framework was described by Drummond J in Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1993) 44 FCR 540 at 554-6 and more recently by Lee J in Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (Full Court, 30 July 1996, unreported). It was not submitted here that the subsequent repeal and replacement of the 1989 regulations or amendments to relevant sections of the Migration Act subsequent to the applications, had any impact upon their application or upon the decision to be made thereon. It was accepted on behalf of the applicant that reg4(1) is not a code that defines good character for the purposes of the regulations. Nevertheless, the case brought on behalf of the applicant is directed specifically to the manner in which the delegate's reasons relied upon the two stated regulations: see generally Hand v Hells Angels Motor Cycle Club Inc (1991) 25 ALD 667 at 672-3 and 675. Involvement in activities indicating contempt or disregard for the law: r4(1)(a)(iii)

Regulation 4(1)(a)(iii) provides that a person is to be taken not to be of good character if: "The applicant has, in the reasonable belief of the Minister, been involved in activities indicating contempt, or disregard, for the law or for human rights."

The 1994 Departmental report deals with the application of this regulation in pars28 to 39. The 1992 Departmental report dealt with the matter in pars30 to 44. Out of 43 paragraphs the changes in the second report are: • Paragraph 32 of the first report is deleted. • Paragraph 33 is the same but has added to it the words "please find attached a written submission addressing a number of matters contained herein, which has been provided by Mr Chu's agent and which I recommend you consider". • Paragraph 36 and 37 were deleted. • Paragraph 41 is substantially the same. Paragraph 32 was the paragraph to which Beaumont J found an error of law and committed the matter for reconsideration. It was therefore appropriate that it not form a foundation of reasoning in respect of the 1994 decision. Paragraph 36 of the 1992 Departmental report referred to the question whether the applicant had had sufficient opportunity to answer the adverse material against him, a matter on which there were express findings by Beaumont J. Paragraph 37 expressed the view that, as the applicant was not an Australian citizen, he would not be entitled to expect the full protection of Australian laws and other matters. It is in the applicant's favour that such reasoning did not form part of the 1994 decision. In relation to the application of reg4(1)(a)(iii), Beaumont J said an argument was put similar to that advanced in the context of reg4(1)(b) and that, for similar reasons, he could not accept the argument. I understand this to mean he found there was material before the decision‑maker, including the confidential material, on which it was open to form the reasonable belief that the ingredients in the regulation were satisfied and the ground of irrelevant considerations was not made out, even though there might be room for debate about the significance of some of the matters. It follows that all of the issues raised on behalf of the applicant under this head have been the subject of prior determination by Beaumont J, save anything which might arise as a new matter from the agent's submission. The fresh aspect raised by that submission was the need for the delegate in the making of the 1994 decision to take into account the affidavit of Ho sworn on 28 January 1993. That affidavit was not before the delegate who made the 1992 decision. The paragraphs in the 1994 Departmental report, to which the affidavit of Ho is arguably relevant read as follows: "36.The significance you may wish to place on Mr Chu's statements concerning his knowledge of Triad and criminal activities should be considered in the light of his other contacts with this office over a period of time including the approaches made by him and on his behalf in an effort to secure visas for himself and his family. In this context, the visits by Mr Robert Ho to the then Regional Migration Director and the Australian Federal Police and by Mr Ho and Mr Chu together to the Australian Federal Police are of significance. Records in the consulate General show that the intention of the visits was to put the proposition that Mr Chu would be prepared to provide information on Triad and criminal activities in return for securing a migrant visa. The then Regional Migration Director has advised that this was his clear and unambiguous understanding and, I am led to believe, that the Australian Federal Police officers at the post. 37.While Mr Chu has argued that because of his lack of English he was not always sure of what was being proposed by Mr Ho on his behalf, it is open to you to draw the following inferences from his approaches: • that as Mr Ho was his longtime friend and had made a number of representations on his behalf to immigration and police officers over a period of time, Mr Chu could be expected to have a reasonable knowledge of the substance of those representations; • that it would be unlikely that Mr Chu would himself meet with Australian police officers - who have no responsibility for the grant of visas - without knowing the substance of what was being proposed in his presence; • that if he was willing to provide information on Triad and related criminal activity in consideration of the grant of a visa, the information to be provided could be expected to be of some substance and worthy of that consideration."

That led on to the next paragraph which reads: "38.From the above, I submit, it would be reasonable for you to assume that Mr Chu possesses more than a general knowledge of Triad and related criminal activities and that in all probability his knowledge is gained from close personal association with such people."

Ho's affidavit was filed in the proceedings before Beaumont J on 2 February 1993. So far as counsel for the respondent could ascertain from his instructions, it was not before the delegate in making the 1994 decision. What was before that delegate was the agent's submission which contained a summary of the Ho affidavit with other material. The relevance of the Ho affidavit to the 1994 decision is unaffected by objection made to it before Beaumont J on the ground of relevance because, as a document created after the 1992 decision, it could not have been relevant to the making of that decision. In the agent's submission it was asserted the delegate, in preparing the draft 1994 Departmental report, had completely disregarded the Ho affidavit. It was said by the agent that Ho's affidavit evidence would corroborate the applicant's explanation that he had nothing of value to offer the police and was not especially well placed to come up with information of value, and would place Ho's approaches to the Regional Migration Director and the Australian Federal Police in proper perspective. It was said this would show there was no proper basis for construing the applicant's offer to pass on any information he may chance upon as in any way indicating he had any criminal association which would make him privy to information concerning Triads or their activities. The submission reiterated that the sworn evidence of Ho was of supreme importance to the position of the applicant because of the weight accorded to the meeting of the applicant with the Australian Federal Police. It was further submitted that on the evidence of both Ho and the applicant it was not reasonable for the delegate to conclude the applicant knew Ho was asking for a migrant visa in exchange for quality intelligence or to conclude the applicant was in a position to provide quality intelligence. For the applicant it is said whether or not the delegate had the Ho affidavit before her in making the 1994 decision, such affidavit was nevertheless constructively before her: Prassad v The Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169; cited in Minister for Immigration and Ethnic Affairs v R A H Hin Teoh (1995) 183 CLR 273 at 290. In Prassad Wilcox J preferred the position that in considering whether the decision of an administrator was unreasonable the Court was entitled to consider those facts known to the decision maker actually or constructively together only with such additional facts that may have been readily available to the decision‑maker. In the present case the agent's submission directed specific attention to the Ho affidavit. This was therefore a case where the decision‑maker as a delegate of the respondent had readily available to her the affidavit said by the agent's submission to be of critical importance in relation to the central issue for determination Luu v Renevier (1989) 91 ALR 39 at 50. It is not the function of this Court to consider the effect of the Ho affidavit on the determination of the merits of the application. It is sufficient to note the affidavit, as distinguished from the agent's summary of it, was not before the delegate making the 1994 decision although the agent's submission had stressed the importance of it to the applicant's case. In those circumstances I consider there was a failure properly to take the Ho affidavit (a relevant consideration) into account. The conviction ground: r4(1)(b) Regulation 4(1)(b) provides that a person is to be taken not to be of good character if: "(b)in the case of an applicant for an entry visa having effect as a permanent entry permit, or for a permanent entry permit - the applicant has at any time been convicted of an offence (other than an offence referred to in paragraph (a)) in circumstances indicating, in the reasonable belief of the Minister, habitual contempt, or disregard, for the law or for human rights."

The exclusion of offences referred to in par(a) has no relevant disqualifying effect here. The Departmental report deals with reg4(1)(b) in pars20 to 27. Only par21 differs from the 1992 Departmental report. It is, however, very substantially the same. The 1992 Departmental report dealt with the application of reg4(1)(b) in pars22 to 29. These were considered by Beaumont J. He commenced by distinguishing a passage in Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 565 at 571 where it was held that no reasonable decision‑maker could have come to the conclusion that Mr Chan was not of good character merely on the basis of a thirty year old conviction. Beaumont J continued: "The discussion in pars22 to 29 of the Departmental report indicates that the decision‑maker appreciated the need to consider each of the convictions in its proper context and to address the current situation. It is said, on behalf of the applicant, that the reported activities of others, whether Triads or not, should not have been used as a basis for inferring that the applicant was not of good character. Again, it is necessary to read the report as a whole to understand the process of reasoning at pars22 to 29. Reading the report as a whole and, specifically, pars22 to 29, it appears that there was material before the decision‑maker, including the confidential information, on which it was open to him to form the reasonable belief that the ingredients specified in reg4(1)(b) existed. In my view, these were not irrelevant considerations for present purposes, even if, for other purposes, there might be room for debate about their significance."

He supported the latter assertion by reference to what was said by Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40-1 where the limited role of a court in reviewing the exercise of an administrative discretion is explained and emphasised. For this Court to re‑adjudicate the issues determined by the judgment of Beaumont J would be an abuse of process. However, of the additional evidence, the Ho affidavit was capable of influencing the reconsideration of this aspect. The affidavit was not before the delegate. Although the agent's submission was before the delegate I consider there was nevertheless a failure properly to take into account the Ho affidavit, it being a relevant consideration. Natural justice: opportunity to be heard In his reasons Beaumont J considered whether the delegate making the 1992 decision took into account adversely to the applicant matters specified in par6 of the 1992 Departmental report without affording the applicant an opportunity of dealing with those matters. Those matters are repeated in the same paragraph of the 1994 Departmental report which reads:

"6.Confidential information has been received from confidential sources on a number of occasions since 1985 which, on the basis of intelligence, indicates that: • Mr Chu is well recorded by relevant authorities as an associate of known criminals, known Triads and convicted drug traffickers; • Mr Chu is strongly implicated as being directly involved in criminal activity; • in the view of the confidential and expert source it is likely that on the "balance of probabilities" Mr Chu is involved in organised criminal activity; • unconfirmed intelligence indicates that the Silver Spring sauna has Triad involvement; • the Chequers Health Centre in Sydney, of which Mr Chu is part owner, is run by Chinese who are suspected of being involved in drugs and is frequented by a wide cross section of the organised crime community in Sydney."

The principal thrust of the submissions for the applicant on this point is that procedural fairness required a far greater extent of disclosure of the particulars which the applicant was required to answer than was in fact given. In his reasons Beaumont J said: "In my opinion, the history of the matter, to which reference has already been made, discloses the following: (1) In the letter dated 16 March 1987, the applicant was informed that his application for migration was rejected "because he failed to meet the character requirements for migrant entry". (2) In the letter of 11 November 1991 (annexure 1), seven pages of submissions were devoted to the question of "character assessment". It is not practicable to attempt now to summarise that material, which should be read as a whole. However, it is significant, for present purposes, to note the following statements (at pp5-6) of the letter: "Mr Chu believes that it may have been suggested that he is either a Triad society member or that he is associated with Triad society activities and, allegedly, that it was this perception of him that contributed to the rejection of his 1986 BMP case. There is nothing on the file documents released under the Freedom of Information Act to directly support those propositions. Indeed a file note suggests that whatever information was held about Mr Chu it did not appear to a senior officer to constitute grounds for refusal (please see folio 110 of 86/2470). As I understand the situation in Hong Kong, however, it is a commonly held view that Triad societies were behind certain enterprises - for example the Chi Fa (Tse Fa) lotteries. So, by extension, anybody running a lottery must have been a member of a Triad society or associated with Triad society members. I understand a similar view prevails towards bath houses and those who run them. When I suggested to Mr Chu that there might be such a perception of him he was adamant that he is not, and never has been a member of a Triad society or other criminal organisations. Furthermore, he is adamant that he has never knowingly participated in a Triad society sponsored activity. He tells me that he does not knowingly associate with Triad society members." (3)On 20 December 1991, the applicant was interviewed by an officer of the Department, assisted by an interpreter. The interview notes are annexure 6 to these reasons. In the course of the interview, the applicant was questioned about his business interests, in particular, his sauna and massage business. He was asked, (at pp 5-6) on several occasions, whether he had been associated with members of an "organised criminal organisation". He said that he "has a lot of friends and business associates who he thinks might have Triad connections". (4)In the letter dated 19 February 1992, the text of which appears above, reference was made, inter alia, to "material linking Mr Chu with organised crime". (5)In the internal memorandum dated 30 January 1992, which was provided to the applicant on 30 June 1992, it was indicated that confidential intelligence reports stated that the applicant was "involved in organised criminal activities" (see par27; also pars20 and 21). (6)The annexed record of the interview held on 27 August 1993 indicates (eg p6) that the applicant was asked whether he had any knowledge of Triad activities in Hong Kong or Australia. As has been noted, before the interview, the applicant had been provided with a list of 21 written questions seeking information with respect to knowledge of Triad activities. In my opinion, the foregoing material, taken as a whole, afforded the applicant an adequate opportunity to deal with the matters mentioned in par6 of the Departmental report. In my view, this material fairly put the applicant on notice that the respondent was giving consideration to the question whether he should form a belief as to the character of the applicant, by virtue of the information received by the respondent, to the effect that the applicant was involved in criminal activity and associated with organised crime, as stated in par6 of the report. Not only was the applicant put on notice of these matters, but he was also invited to respond to the adverse suggestions put to him. In these circumstances, the whole process was, I think, procedurally fair."

There is no additional evidence relevant to the issues upon which Beaumont J has already adjudicated. It would be an abuse of process to reopen those matters. In these circumstances there is no reason for the Court to now take the opportunity of examining the confidential material. This Court cannot second guess the judgment of Beaumont J that the particulars were adequate. It is patent from his reasons that the contents of the confidential material were such that for the delegate to rely on it would not be unreasonable unless it was adequately answered (it being the purpose of the Ho affidavit to provide answers). Natural justice: pre‑determination Natural justice includes the requirement of a hearing by an impartial adjudicator. For the applicant it is contended there was actual or apprehended bias in the delegate in making the 1994 decision in that the decision was predetermined. For this submission reliance is placed upon (1) the content of the 1994 Departmental report which is repetitive of the 1992 Departmental report; (2) the apparent fact that the Ho affidavit was not itself brought before the delegate in making the 1994 decision; and (3) the file note. There is no evidence of actual bias. As to apprehended bias, the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4 has stated the principle applicable to a court or a judge, namely: "...a Judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he [or she] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."

This reasonable apprehension of bias test will also apply to a statutory tribunal: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 7. It applies in relation to the conduct of a juror in a criminal trial: Webb v R (1994) 122 ALR 41. In Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 55 FCR 375 Sheppard J, with whom Black CJ and Lockhart J agreed, stated he was unable to find any authority in which the decision of a Minister of the Crown or other administrative officer was challenged for apprehended bias (at 397). The potential bias point arose in that case from what was said to be a firm view, assumption or opinion by senior members of government, including the then Prime Minister, that Cambodian boat people as a class were not refugees. His Honour further stated also at 397: "...on the basis that in this case the delegate was obliged to accord procedural fairness to the respondent, I see no reason in principle why the same rules do not apply to the delegate. The difference in the position of a person such as the delegate here and, for example, of a judge is accommodated, so it could seem, by what Deane J said in Webb (at ALJR 599), namely that the standard which the observer would require of each will vary according to the function being discharged and the particular circumstances."

However, Sheppard J's statement did not take account of the decision of the Full Court in Century Metals and Mining NL v Yeomans and Anor (1989) 100 ALR 383 where at 417 the Full Court, after referring to the test as enunciated in Livesey, stated: "We agree with French J that it is a test which will not usually be appropriate in connection with administrative decisions. Ministers and other administrators frequently have a continuing relationship with a particular issue or particular person during the course of which they necessarily form views; in practice it would generally be impossible for them to bring an open mind to a new decision pertaining to that issue or person. But respectively disagreeing with French J, we think that, in this unusual case, the test applicable to Judges is relevant. As is illustrated by the decision in R v Kent Police Authority; Ex Parte Godden [1971] 2 QB 662, there are cases in which it is appropriate to apply the judicial test to administrative decisions."

In Century Metals the Minister had publicly announced his decision would be preceded by an impartial assessment. The Full Court held members of the public were entitled to expect a person who would make that assessment would bring to the task a mind uncommitted in fact and appearing to be uncommitted (at 417). There is no parallel circumstance in the present proceeding. It appears to me from Mok and Century Metals that the opportunity for impartial adjudication is one which in principle may apply to an administrator, although the precise

application of it will be dependent on the particular circumstances, perhaps to some greater degree than where the principle is applied to a judicial officer. In Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518, Beazley J held the use by a second delegate of the same language used by a first delegate on critical aspects of the decision‑making process made it more probable than not that the second decision‑maker did not apply an independent mind to the decision‑making process. In that case, as I read it, there was a lesser degree of actual repetition and more of a recasting of reasons than in the 1994 Departmental Report. I have some reservations about her Honour's view that the coincidence of the language between the reports of a second and first decision‑maker necessarily leads to the inference that the second decision‑maker did not apply an independent mind to the decision‑making process, in the absence of further evidence. A large part of usual on‑going administration must involve the adaptation and further development of earlier reports. Furthermore, if identity of wording in successive reports is found to lead to that inference, it would encourage unnecessary re‑wording by administrators to avoid the inference in the course of the making of administrative decisions. Here, however, there is additional evidence to be taken into account: (1) There is the repetition in the 1994 Departmental report of the reference in the 1992 Departmental report to 16 years as the lapsed time from the applicant's last conviction. That is supportive of an inference being drawn from the identity of language in this case because it demonstrates a lack of proper consideration. (2) Then there is the annexing of the agent's submission to the Departmental report, devoid of comment or analysis. The delegate was invited to consider it but offered no assistance in doing so, although faxed with a recommendation in the same terms as the recommendation in the 1992 Departmental report. (3) Next, and importantly, the Ho affidavit was not itself brought before the delegate in making the 1994 decision, although the importance of it had been stressed in the agent's submission. To some degree counter-balancing that is the fact that the agent's submission summarised the Ho affidavit. However, it is not for this Court to engage in merits review and to assess the degree to which the summary brought before the delegate the contents of the Ho affidavit and the manner in which it might have affected the decision. (4) There is also the file note. It is not evidence of the thinking of the delegate. It is, however, evidence that the delegate had before her a statement that the original decision was right and should be adhered to because it was not morally wrong. This is not a case where a minister has made some public commitment giving rise to an expectation in relation to the decision‑making. However, it is a decision where a judge of the Federal Court committed the matter for reconsideration. A member of the public looking at the matter is entitled to expect the person making that reconsideration would bring to the task an uncommitted mind in fact and appearing to be uncommitted. In circumstances where there is a high coincidence of language between the 1994 Departmental report and the 1992 Departmental report; where the agent's submission was annexed unanalysed; where the Ho affidavit was not brought before the delegate making the 1994 decision; and the file note evidenced a view within the Department that the case should be decided as previously, I consider the parties or the public could reasonably entertain an apprehension that the delegate might not have brought an impartial and unprejudiced mind to the reconsideration, so that the delegate give "proper, genuine and realistic consideration to the merits of the case": Chan v Minister for Immigration, Local Government and Ethnic Affairs (Gummow J, 11 December 1987, unreported) at 11‑12; cited by Hill J in Surinakova at 96. In my opinion error of law is therefore shown in the failure of the delegate to properly consider the application and all relevant material afresh as required by law. Waiver The case for the applicant relies upon the submissions in respect of regs4(1)(a)(iii) and 4(1)(b) to contend that the delegate, in the reasons, should not have reached the view that she could not be reasonably satisfied the applicant was reformed for the purposes of par(a)(ii) of r143. It is also said for the applicant there was no material before the respondent upon which he could properly be satisfied that undue harm would be unlikely to result to the Australian community if a visa were to be granted to the applicant. These issues fall for reconsideration in the light of the Ho affidavit in particular. Relief There is no basis upon which to make any of the declarations sought for the applicant. The matter should be again remitted to the respondent for determination according to law. I certify that this and the preceding 30 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson. Associate: Date: 24 February 1997

APPEARANCES Counsel for the Applicant: Mr L W Roberts-Smith QC and Mr A J Goldfinch Solicitors for the Applicant: Finlay Phillips Counsel for the Respondent: Mr S Owen‑Conway QC and Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitors

Date of Hearing: 8 & 9 July 1996 Date of Judgment: 24 February 1997