(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."
22 As I have already pointed out, a number of the subsections of s 500 of the Migration Act expressly exclude specified provisions of the AAT Act in the case of applications to the Tribunal under s 500. Section 33 is not one of the provisions excluded specifically.
23 Much of the argument on the appeal was devoted to the question whether subss (6A) to (6L) of s 500 of the Migration Act could properly be regarded as a "code". In the context of this argument, I take the expression "code" to mean a set of provisions, complete in itself, indicating an intention that other provisions have no application to the subject matter. In my view, this is a false issue. It is unnecessary to determine whether s 500 of the Migration Act is intended to be the sole source of jurisdictional and procedural laws with respect to the applications for review referred to in it. If it were necessary so to determine, the answer would probably be that s 500 does not contain a code in the sense to which I have referred. A number of provisions of the AAT Act not mentioned specifically in s 500 of the Migration Act are readily applicable to proceedings of that kind. Instances are s 32 (a party to a proceeding may appear in person or may be represented by some other person), s 35 (the hearing is to be in public unless, on specified grounds, the Tribunal otherwise orders) and s 40 (powers of the Tribunal, including taking evidence on oath or affirmation and adjourning a proceeding from time to time). Section 500(6G) and (6L) make it clear that s 43 of the AAT Act remains applicable. Under s 43, the Tribunal may exercise all the powers and discretions conferred on the person who made the decision under review and is required to make a decision in writing affirming, varying or setting aside the decision under review and to give reasons either orally or in writing for its decision. To say that s 500 does not constitute a code, however, is not to exclude the possibility that there are provisions of the AAT Act, not specifically mentioned in s 500 of the Migration Act, but inconsistent with the scheme laid down in respect of proceedings under s 500, so that they are inapplicable to the conduct of applications to review under that section. The real question is whether the Tribunal was entitled to receive in evidence documents not produced in accordance with any of the provisions of s 500 of the Migration Act. This question arises whether or not the source of the Tribunal's power to receive documents in an ordinary case is s 33(1)(c) of the AAT Act or some other provision, or is derived by inference from the nature of the Tribunal's functions. It is to be decided according to the principles relating to the effects of a later enactment in relation to inconsistent provisions in an earlier enactment, when there has been no express repeal of the earlier enactment. Those principles are expounded in cases such as: Goodwin v Phillips (1908) 7 CLR 1 at 7 per Griffith CJ and 10 per Barton J; Rose v Hvric (1963) 108 CLR 353 at 360; Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275 - 276 per Fullagar J; South Australia v Tanner (1989) 166 CLR 161 at 171 per Wilson, Dawson, Toohey and Gaudron JJ; Saraswati v R (1991) 172 CLR 1 at 17 - 18 per Gaudron J; and Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 at 655 - 656 per Ormiston JA and 672 - 673 per Phillips JA.
24 Section 500 of the Migration Act contains provisions relating to four categories of documents. First, there are the documents required to be supplied by the Minister with the notification of the original decision, pursuant to s 501G(2). It should be noted that (leaving aside documents containing non-disclosable information) this category of documents is potentially broader than the equivalent category normally required by s 37(1)(b) of the AAT Act; the documents required to be provided by s 501G(2) are all those relevant to the making of the decision, whereas s 37(1)(b) requires only those documents considered by the decision-maker to be relevant to the review of the decision by the Tribunal. Documents provided pursuant to s 501G(2) are the documents that s 500(6C) requires to be forwarded to the Tribunal by the applicant for review of the decision, together with the application. The second category of documents is that dealt with by subs (6F), namely documents in the Minister's possession or under the Minister's control, relevant to the making of the decision and containing non-disclosable information. The term "non-disclosable information" is defined in s 5(1) of the Migration Act; it covers matters of national interest, the public interest and confidentiality. This category of documents must be lodged with the Tribunal within fourteen days after the Minister is notified of the application. Third, there is a category of documents to be relied on by the applicant for review at the hearing, which subs (6J) requires to be given to the Minister at least two business days before the hearing. The fourth category of documents is those required by the Tribunal by notice to the Minister under subs (6K). The Minister is obliged to lodge those documents with the Tribunal within the time specified in the notice. In the present case, the Tribunal characterised subs (6K) as relating to "the filing of confidential documents". Plainly, this was an error. Subsection (6K) is intended to permit the Tribunal to have access to documents that were not available to the original decision-maker, or if so available were considered by the original decision-maker not to be relevant to the decision, and are not available to the applicant for review, but are in the possession or under the control of the Minister. It may be that a notice pursuant to subs (6K) will operate as a process analogous to discovery of documents in a court proceeding, ie the notice will be given as a result of a request by the applicant for review, who becomes aware that the Minister has relevant documents. The subsection is not limited by its terms to such a situation. No doubt it will usually be the case that the Tribunal will seek to maximise the opportunity that an applicant for review has to make use of, or to refute, information contained in documents the subject of a notice under subs (6K). Again, however, there is no requirement apparent in subs (6K) that the notice be given, and the period specified in it be fixed, so as to give the applicant for review such an opportunity.
25 The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).
26 It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to that case. It may be that the Minister's response will be to rely on documents that have been in the Minister's possession or under the Minister's control but have not been produced previously, because they were not in the possession or under the control of the delegate who made the original decision, or were not considered relevant to the decision (s 501G(2)), do not contain non-disclosable information (s 500(6F)) or have not been the subject of a notice pursuant to subs (6K). It may be that, after receiving a statement under subs (6H) or copy documents under subs (6J), the Minister acquires documents not previously in the Minister's possession or under the Minister's control, for the purpose of using them to answer the case of the applicant for review. The Minister may wish to obtain documents by compulsion with a view to tendering them at the hearing in answer to the case of the applicant for review. In doing so, the powers of the Tribunal found in s 40(1A) to (1E) of the AAT Act may be important. They are powers that enable the Tribunal to compel production of documents in the manner in which a court compels production of documents by the use of a subpoena.
27 To deny the Minister capacity to rely on documents not previously made available to an applicant for review would be to constrain the capacity of the Minister to answer the case of an applicant for review. It would be at odds with the scheme for dealing with applications to review decisions applying the character test, laid down by s 500 of the Migration Act. It would deprive subss (6H) and (6J) of any useful purpose. Advance knowledge of the applicant's case is of no value if the Minister cannot meet it.
28 It is difficult to detect in s 500 of the Migration Act the source of any supposed limit on the entitlement of the Minister to rely on documents at a hearing before the Tribunal. Such a limit is not found in s 500(6K). That subsection operates only when the Tribunal takes the step of causing a notice to be served on the Minister. That step can only be taken if the Tribunal forms the opinion required by the subsection, that particular documents, or a particular class of documents, may be relevant in relation to the decision under review. Unless the possible existence of such documents, or class of documents, is brought to the attention of the Tribunal by the applicant for review or by the Minister, it is unlikely that the Tribunal will ever form the necessary opinion. The possibility of the existence of such documents, or class of documents, may be evident from documents tendered by the Minister at the hearing. The Tribunal may wish to exercise the power in s 500(6K) to ensure that injustice is not done to an applicant for review by selective production of documents in the possession or under the control of the Minister.
29 Parliament has chosen to place an express restriction on the entitlement of an applicant for review to rely on documents at a hearing in the Tribunal. That restriction is found in s 500(6J). It would have been a simple matter to include an express restriction on the Minister's entitlement to rely on documents. No such express restriction is to be found. Nor is there the implication of such a restriction arising from the limited categories of documents with which the section deals.
30 For these reasons, I am of the view that the special scheme laid down in s 500 of the Migration Act for dealing with applications to the Tribunal for review of decisions applying the character test does not deprive the Tribunal of the capacity to exercise its normal powers to receive documents in evidence. The exception is that an applicant for review is expressly disadvantaged by subs (6J) by having to supply copies of any documents to the Minister two business days prior to the hearing if the applicant for review wishes to rely on documents. In the present case, it was open to the Tribunal to receive in evidence at the hearing the s 37 documents from the Queensland Tribunal proceeding concerning the appellant. Although the Tribunal, in mischaracterising the effect of subs (6K), made an error of law, the error did not affect the outcome of the issue as to the receipt of the s 37 documents. The learned trial judge was correct to say that the provisions of s 500 of the Migration Act do not exhaust the powers of the Tribunal, particularly the power to admit into evidence documents, in a case to which s 500 applies.
31 The disadvantage suffered by the appellant at the hearing in the Tribunal by reason of the receipt of the s 37 documents from the Queensland case was ameliorated in two ways. First, the appellant actually had those documents some days before he was obliged by s 500(6H) to put his case in writing before the Minister, and by s 500(6J) to give the Minister a copy of every document on which he intended to rely. Second, counsel for the Minister invited the Tribunal to give the appellant an adjournment for some days to consider the contents of the s 37 documents. The appellant declined this offer. In any event, the offer was probably based on a misunderstanding of the effect of subss (6H) and (6J). Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing. Compare Re Morris; Morris v Maroudas (1986) 66 ALR 699.
32 Although he was disadvantaged in meeting the evidence contained in the s 37 documents from the Queensland case, the appellant's disadvantage in that regard is the disadvantage required by s 500(6H) and (6J) of the Migration Act. It is not open to the appellant to rely on that disadvantage as a ground for contending that the Tribunal made an error of law. It should also be pointed out, as the Tribunal found, that the allegations made in the statement of facts and contentions on which the delegate of the Minister had relied in making the original decision fairly raised all the allegations which the Minister intended to establish in evidence and rely upon in the Tribunal hearing. The s 37 documents contained the supporting documentary evidence for those allegations. The appellant therefore had an opportunity to file a written statement rebutting any of those allegations if he so desired and was able to do so.
33 In his amended notice of appeal and his submissions on the appeal, the appellant relied on several other grounds. In my view, there is no substance in any of them. The appellant was not denied natural justice by reason of the failure of the Minister to make available in the Tribunal for cross-examination the persons who had made the statements that formed some of the s 37 documents that were tendered. A right to cross-examine is not a necessary part of the right to a fair hearing. It was for the Tribunal to give to written statements such weight as it saw fit in the light of the fact that the appellant had not cross-examined the makers of the statements. Indeed, it is by no means clear that the appellant requested the Tribunal to require the Minister to make available any person for cross-examination. Nothing appears in the Tribunal's reasons for decision to suggest any such application. The point appears not to have been taken at first instance, as the learned trial judge did not deal with it in his reasons for judgment.
34 The appellant submitted that the Tribunal had expressly characterised as a "very relevant matter" that the appellant had broken the conditions of visas which had been granted to him on two occasions in the past. The Tribunal found that the appellant broke the conditions of visas granted on 27 February 1998 and 20 May 1998 regarding residence and not working. The appellant maintains that he was granted these visas unlawfully. His case was that he had been arrested and detained illegally, on the false assumption that he did not have a valid visa, and was required to apply for the visa of 28 February 1998 in order to obtain release from detention. He said that this visa, and the subsequent one, were granted unlawfully, because he already had a valid visa. He invited the Tribunal to consider these matters and to deal with the issue of his character on the basis that he was not in breach of the conditions of the two visas because he was not bound to comply with them when they were imposed upon him unlawfully. He therefore argued that the Tribunal failed to take into account relevant considerations, namely that the arrest and detention were unlawful and the conditions of the visas were not lawfully imposed. The short answer to this is that there is no indication that the Tribunal failed to take into account these matters in reaching the conclusion that the appellant had been in breach of the conditions. The failure of the Tribunal to mention every element in the process of reasoning that led to its conclusion is not an indication that it failed to take some matter into account. Nor are the allegations made by the appellant necessarily relevant considerations. That concept is confined to a consideration that a decision-maker is bound to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 42 per Mason J.
35 In Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 (1999) 56 ALD 321 at [8], the Full Court said:
"Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of "good character" in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is 'not of good character' within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry."
In reliance on this statement of the law, the appellant submitted that the Tribunal set too high a standard in a case in which the appellant was seeking a bridging visa E pending resolution of various legal proceedings and review of his substantive visa application. The appellant contended that this was an error by the Tribunal in the application of principles. He argued that the Tribunal should not have found that the appellant failed to satisfy the character test on the basis of unsubstantiated allegations of criminal conduct.
36 In fact, the Tribunal did not make its finding on this basis. It expressly gave little weight to allegations of crimes committed by the applicant in the United Kingdom, saying that:
"they are at this stage, mere unsubstantiated allegations and unserved warrants and charges. The [appellant] has not yet had an opportunity to defend or explain those matters and they remain mere allegations."
In relation to the allegations of misappropriation of cheques from the appellant's employer, the Tribunal relied upon the fact that they had been substantiated by affidavits and had been the subject of a summary judgment for conversion of the cheques. It referred to:
"a meticulously presented paper trail which satisfied the Supreme Court and also this Tribunal that a sum of at least $417,515.30 was converted by the use of 4 cheques which had been fraudulently altered or uttered. In the absence of any acceptable explanation from the [appellant], I am satisfied that his behaviour regarding those cheques shows him to be not of good character within the meaning of the Migration Act. Whether he committed a criminal offence will be determined shortly by the District Court."
37 A finding that the appellant was likely to act dishonestly at the expense of the Australian community, if he found himself free to do so, was based on the appellant's breaches of conditions attached to previous visas and on a finding that he had deceived a woman with whom he had been living under an assumed name by letting her see false papers in that assumed name. The finding of likely dishonesty was not based on mere allegations of criminal conduct against the appellant. There was no misapplication of principle by the Tribunal. What the appellant really sought was to challenge the Tribunal's findings of fact against him. An appeal from the Tribunal lies only on a question of law (s 44(1) of the AAT Act). If a finding of fact was open to the Tribunal, it cannot be challenged in such an appeal.
38 Similarly, the appellant's attempts to argue that the Tribunal applied the wrong standard of proof, and that its decision was so unreasonable that no reasonable decision-maker would have come to it, cannot succeed. They are attempts to re-agitate issues of fact in this Court. The appellant also attempted to argue that the Tribunal has found against him in the application of the character test on a basis different from that put by the Minister. His argument was that the Minister put a case based on criminal misconduct, whereas the Tribunal found one based on civil misconduct, and that natural justice required the Tribunal to give notice to the appellant of the changed basis and provide him with an opportunity to meet the different case. The findings of the Tribunal were well within the ambit of the case put on behalf of the Minister. The fact that the Tribunal was not satisfied as to the full extent of that case but still found against the appellant does not demonstrate that the basis of the case changed.
39 For these reasons, I am of the view that the appeal must be dismissed. I would make an order to that effect, and order that the appellant pay the Minister's costs of the appeal.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.