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[2000] FCA 1922
Federal Court of Australia
2000-12-22
Cooper J, French J
Original judgment source is linked above.
Introduction 1 On 24 March 2000, Brian Gerald James Goldie submitted an application for a Bridging Visa E to the Department of Immigration and Multicultural Affairs. A delegate of the Minister for Immigration and Multicultural Affairs decided to refuse the grant of the visa on 28 March 2000 pursuant to s 501(1) of the Migration Act 1958 (Cth). On 29 March 2000, Goldie applied to the Administrative Appeals Tribunal for a review of that decision. On 12 June 2000, the Tribunal affirmed the decision. Goldie has now appealed to this Court against the decision of the Tribunal. He has done so on a variety of grounds which will be addressed below.
The Tribunal's Decision 2 The Tribunal first set out in its reasons Goldie's history of visa grants since 1992. It is not necessary to repeat that history here as it is adequately set out in the reasons of the Tribunal. It is also set out in some detail in the cognate decision of this Court in W53 of 2000 in which Goldie claims relief on various bases against the Commonwealth, the Minister and various departmental officers. 3 There was a prior history of proceedings in the Tribunal in relation to Goldie's unsuccessful application in May 1993 for a permanent resident visa. That had been refused by a ministerial delegate and on 18 February 1998 that refusal had been affirmed by the Administrative Appeals Tribunal. Goldie had appealed to the Federal Court against the decision of the AAT and on 14 March 1999 Cooper J dismissed that application. However, on 14 September 1999 an appeal against the decision of Cooper J was allowed by the Full Court which ordered that the Tribunal's decision be set aside and remitted back to the Tribunal to be heard according to law. The application in relation to the permanent resident visa was reheard by the Tribunal on 18 December 1999. An adjournment, requested by Goldie through legal counsel in his absence, was refused. The application for review of the 1993 decision refusing the permanent visa was subsequently dismissed. 4 On 15 February 2000, Goldie was arrested in New South Wales and extradited to Western Australia on three charges of stealing as a servant of Fluor Daniels Pty Ltd by whom he had previously been employed. He was granted bail on 2 March on those charges but that bail was revoked on 14 April. On 24 March 2000, Goldie applied for a Bridging Visa E which was refused by a delegate of the respondent on the grounds that he was not of good character as required by section 501(2). It was that decision which was the subject of review by the Administrative Appeals Tribunal in this case. 5 In dismissing the application for review, the learned Deputy President noted that under expedited procedures in the Migration Act the Minister was obliged to serve on Goldie copies of all documents relied upon by the delegate. The evidence was that the delegate had relied on faxed copies of the Statement of Facts and Contentions which had been filed and relied upon in the Administrative Appeals Tribunal proceedings relating to the refusal of the permanent resident visa. This was because the delegate had to make a decision within two days. The Facts and Contentions referred to s 37 documents and contained photocopies of original documents to which the department had access in Queensland. The delegate did not at that time have access to the actual s 37 documents or copies of them in front of her. She accepted the faxed Statement of Facts and Contentions as sufficient evidence upon which to base her refusal of the application and did so. She notified Goldie who was then in immigration detention and served him with copies of all documents upon which she had relied. 6 When Goldie applied for review of her decision by the Administrative Appeals Tribunal he filed copies of all documents with which he had been served. At a telephone directions hearing on 13 April 2000 he requested copies of the s 37 documents and all other documents filed in the previous AAT proceedings. The Tribunal directed that the s 37 documents be filed. The Minister served Goldie with the s 37 documents in the previous AAT proceedings on 10 May 2000. Goldie claimed he received them on 17 May 2000, that is seven days before the commencement of the hearing. At the hearing he objected to those documents being accepted in evidence by the Tribunal, relying on s 500(6K) of the Act which he said required the Minister to give fourteen days notice in writing. Alternatively, he argued that the documents should be excluded on the grounds of natural justice. 7 The Deputy President ruled that s 500(6K) had no application as it dealt with the filing of confidential documents which these were not. He also ruled against Goldie's submission that it would result in procedural unfairness. He made that ruling on the basis that Goldie had already been served with the s 37 documents in the previous proceedings prior to the hearing on 18 December 1999. Even though he was not personally served, because he was living illegally in the community as an unlawful non-citizen under a false name, his lawyer had been served on his behalf. The great bulk of the documents related to a wrongful conversion action brought against him by Fluor Daniels in the Supreme Court and which had been served upon him as part of those proceedings. He had agreed that none of the allegations in the s 37 documents took him by surprise. His claim, however, was that he was prevented by s 500(6H) from giving oral evidence on his own behalf because he had not filed a written statement two days before the hearing. Mr Macliver, for the Minister, told the Tribunal he would consent to an adjournment for a few days to enable Goldie to reduce his submissions and proposed evidence into writing for filing at least two days before a resumed hearing in order to give him a fair chance to put his case in accordance with the legislation. Goldie, as the Tribunal found, decided not to take advantage of this offer but instead chose to proceed to give evidence and make submissions within the constraints imposed by the legislation. 8 The learned Deputy President allowed the proceedings to go ahead on that basis partly because that was Goldie's free choice and partly because he was of the opinion that the allegations made in the Statement of Facts and Contentions which had been served fairly raised all the allegations which the Minister intended to establish in evidence and rely on at the hearing. They were cross-referenced to folios in the s 37 documents which contained the supporting documentary evidence. He was of opinion that Goldie had ample opportunity to file a written statement rebutting any of those allegations if he so desired. In particular, it was observed that he could have given written evidence explaining how the false Fluor Daniels' cheques referred to in the reasons ended up in his own bank accounts and were drawn upon for his own benefit. Goldie was also warned that he could refuse to answer specific questions if he felt it might prejudice the defence of his pending criminal trial on the theft charges. He declined to take that course. 9 The learned Deputy President said that after hearing the oral evidence and examining the documentary evidence he decided to give little weight to allegations of crimes said to have been committed by Goldie in the United Kingdom as they were at that time unsubstantiated and involved unserved warrants and unproved charges. He had not yet had an opportunity to defend or explain them. The allegations relating to the cheques wrongly drawn on Fluor Daniels however had been substantiated by affidavit and had been the subject of a summary judgment by the Supreme Court of Western Australia for an amount of $417,515.30 wrongfully converted. Goldie had challenged the quantitative aspects saying the evidence did not support such a large sum of money. The Tribunal was satisfied that there was a "meticulously presented paper trial 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 the Tribunal was satisfied that his behaviour regarding those cheques showed him to be not of good character within the meaning of the Migration Act. Whether he had committed a criminal offence was a matter for determination by the District Court. 10 The Tribunal characterised as a "very relevant matter" the fact that Goldie had broken the conditions of visas granted to him on at least two occasions in the past. He had broken conditions of visas issued on 27 February 1998 and 20 May 1998 with respect to residence and work, the last occasion being when he departed Hervey Bay without notifying the Department of his intention to change his address and resided in New South Wales for eighteen months under an assumed name. 11 The learned Deputy President said: "I am satisfied with the reasoning set out by Cooper J that the applicant breached the conditions of a valid BVE on those occasions. I am further satisfied that those breaches were deliberate. For the reasons given above, I find that the decision to refuse the BVE was within the Delegate's power." Goldie, it was said, had asked the Tribunal to exercise the discretion to grant the visa despite the breaches of the Act in order to enable him properly to prepare and conduct litigation in the AAT in Brisbane, in the Federal Court, the Supreme Court and the District Court. He told the Tribunal that bail had been refused only because of those immigration aspects and if bail were restored he would have to "be mad" to breach bail conditions as he could face a term of five years imprisonment for such a breach. The Tribunal, however, took account of the fact that he had breached the conditions until very recently when he was living and working as an illegal non-citizen under an assumed name. It found that his track record strongly suggested that he was likely to act dishonestly at the expense of the Australian community if he found himself free to do so. He had been living under the name of Malcolm Anderson and the evidence was that he was even deceiving the woman with whom he was living and had tricked her by letting her see false papers in that assumed name. 12 For those reasons the Tribunal was not prepared to exercise its discretion to grant a Bridging Visa E or any other form of visa which would grant Goldie legal status to reside in the community.
The Grounds of Review 13 The grounds upon which Goldie now seeks review of the Tribunal's decision are as follows: "IMPROPER EXERCISE OF POWER (a) The decision of the Tribunal exercises a discretion not to grant the applicant a visa, in his written submission properly entered into evidence according to law, no such request was made; (b) The Tribunal exercised a power to admit documents into evidence that was not authorised by the Migration Act 1958, the Migration Regulations, or any other Act of Parliament. At para 42 of the reasons for the decision the Tribunal says: "that s 500(6K) [sic] of the Migration Act 1958 had no application as it dealt with the filing of confidential documents" The applicant contends that s 500(6)(k) of the Migration Act 1958 has no such application, but gives the Tribunal a power to issue a notice to the respondent to produce documents in a prescribed period that the Tribunal contends is relevant. The Tribunal issued no such notice and therefore could not admit the documents in question. NATURAL JUSTICE (a) The Tribunal allowed the respondent to present his case background and admit evidence prior to the applicant presenting his case. In doing so the applicant was expected to answer allegations in documents that the applicant had no prior knowledge of prior to the hearing, thereby being denied both procedural fairness and natural justice. At para 46 the Tribunal refers to affidavits which:- (I) were not supplied to the applicant prior to the hearing; and (II) the respondents did not make the deponents available to the applicant for cross examination. In so doing the Tribunal denied the applicant natural justice. (b) The Tribunal member exercised a discretion to enter documents into evidence which were not entered pursuant to s 501G, 500(6)(c) or 500(6)(k) of the Migration Act 1958. The Tribunal had no power to enter the documents, the applicant could not present a case in response by operation of s 500(6)(h) and 500(6)(i) of the Migration Act 1958 which denied him the ability to make representations to the Tribunal not made in writing two days prior to the hearing, and was therefore denied natural justice. RELEVANT CONSIDERATIONS (a) The Tribunal member failed to take into account whether the arrest, detention and subsequent issue of a Bridging Visa E were authorised by the Migration Act 1958, or the Migration Regulations and if therefore the applicant was in breach of any such visa. In failing to do so the Tribunal failed to take into account a relevant consideration. (b) The Tribunal refers in Paras 24 and 25 of its reasons to an acceptance by the applicant of conditions placed on a bridging Visa E. No such acceptance was ever entered into. In failing to take the applicant's submission that there was no acceptance by the applicant of the terms and conditions the Tribunal failed to take into account a relevant consideration. IRRELEVANT CONSIDERATIONS (a) The Tribunal took into account the findings of Cooper J of the Federal Court of Australia in matter number QG51 of 1998 despite a submission by the applicant that an interlocutory judgement was not binding on the Tribunal, or any other Court. In taking the decision into consideration the tribunal took into account an irrelevant consideration. (b) The Tribunal took into account documents not properly admitted into evidence according to law. In taking those documents into account the Tribunal took into account irrelevant considerations. APPLICATION OF PRINCIPLES (a) The Tribunal failed to accept the applicant's submission that the character test for a temporary visa is lower than that for a permanent visa, and thereby erred in its application of the principles of s 501 of the Migration Act 1958. UNDUE WEIGHT (a) The Tribunal gave undue weight to the matters in reaching the decision and failed to accept the applicant's submission that the character test for a temporary visa is lower than that for a permanent visa. ABSENCE OF REASONS FOR FINDING (a) The Tribunal decision fails to disclose the reasons and weight given to the matters taken into account by the Tribunal, or in fact which particular subclause of s 501 of the Migration Act 1958 was applied in the decision, the decision does not therefore adequately disclose the reasons for decision as required by s43 of the Administrative Appeals Tribunal Act 1975. AGAINST THE WEIGHT OF EVIDENCE (a) The decision of the Tribunal to refuse the visa was against the weight of the evidence properly admitted before the Tribunal. FRAUD (a) The tribunal took into account the statement of Christina Spence, a statement that has proved to have been fraudulently and wilfully altered by a delegate of the respondent, the Tribunal decision thereby being induced and affected by fraud. At para 16 of the reasons for decision, the Tribunal refers to a statement by Ms Spence. No statement of Ms Spence was before the Tribunal. In any event the Spence statement has been proven to have been fraudulently altered by a delegate of the respondent. FURTHER (a) The inference drawn by the Tribunal failed to meet the "Briginshaw" test."
Statutory Framework 14 Section 500 of the Migration Act deals with review of decisions by the Administrative Appeals Tribunal including decisions of a delegate of the Minister under s 501, other than decisions to which a certificate under s 502 applies (s 500(1)(b)). This is not a case in which a certificate under s 502 was issued. 15 Section 500 contains various provisions relating to the conduct of proceedings before the Tribunal. Relevantly for present purposes are s 500(6H) and (6K). They are as follows: "500(6H) If: (a) an application is made to the Tribunal for a review of a decision under section 501; and (b) the decision relates to a person in the migration zone; the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. . . . (6K) If: (a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone; and (c) the Tribunal is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant in relation to the decision under review; then: (d) the Tribunal may cause to be served on the Minister a notice in writing stating that the Tribunal is of that opinion and requiring the Minister to lodge with the Tribunal, within a time specified in the notice, 2 copies of each of those documents that is in the Minister's possession or under the Minister's control; and (e) the Minister must comply with any such notice."
Improper Exercise of Power 16 (a) The first ground under this head appears to have been misconceived. It refers to the statement in the Tribunal's reasons at par 49 that Goldie had asked the Tribunal to exercise its discretion to grant the visa despite breaches of the Migration Act to enable him to properly prepare and conduct litigation in which he was involved in the Administrative Appeals Tribunal, the Federal Court, the Supreme Court and the District Court. Goldie said he made no such request. The ground, however, leads nowhere. The Tribunal considered the exercise of the discretion as it was required to do whether or not any request was made. 17 (b) This ground appears to rest on the premise that s 500 of the Migration Act establishes a code limiting the bases upon which and ways in which documents relevant to the case may be considered by the Tribunal. The section provides for certain documents to be lodged with the Tribunal and prevents reliance by an applicant on documents submitted in support of the applicant's case unless prior notice of the documents has been given. The Tribunal is also empowered to require the Minister to provide relevant documents. These provisions do not exhaust the powers of the Tribunal in proceedings to which s 500 applies. In particular, the power of the Tribunal to inform itself in such manner as it thinks appropriate remains intact (s 33(1)(c) Administrative Appeals Tribunal Act 1975). The Tribunal was entitled to admit into evidence the s 37 documents from the Queensland Administrative Appeals Tribunal proceedings.
Breach of Natural Justice 18 (a) Paragraph 46 of the Tribunal's reasons observed that the allegation relating to cheques wrongly drawn upon Fluor Daniels had been substantiated by affidavits. Moreover they were the subject of the summary judgment for $417,515.30. Goldie's contention appears to be that he did not have an adequate opportunity to deal with the affidavit material relied upon. The affidavits, however, had already been filed in the Supreme Court in proceedings to which he was the defendant. They were included in the supplementary s 37 documents designated R2, provided to him prior to the Tribunal hearing. They arose out of the Queensland AAT proceedings in which they had previously been provided to his legal representative. There was no breach of natural justice shown here. 19 (b) Goldie also sought to invoke s 500(6H) of the Migration Act as having operated at the hearing to prevent him from presenting his case orally. However, the Minister's counsel had told the Tribunal he would consent to an adjournment to overcome the difficulty. Goldie did not take advantage of that offer. There was no breach of natural justice in that connection.
Relevant Considerations 20 (a) Goldie submitted that he asked the Tribunal to take into account and examine his arrest and detention and the subsequent issue of Bridging Visa E's and to consider the character question in that context. The Tribunal did advert to the immigration detention (par 24) and the subsequent issue of a Bridging Visa E. It found nevertheless that Goldie had broken the conditions of visas granted to him on two occasions in the past (par 48) and adopted the reasoning of Cooper J that what he breached were the conditions of a valid Bridging Visa E on each occasion. There is, in the Tribunal reasoning, no indication of a failure to take into account any relevant consideration which it was bound to take into account. Not every relevant consideration falls into that category. A failure to accept or advert to an argument of the applicant, is not an error of law per se. And as the Minister submits, the Tribunal based its findings of want of good character on Goldie's dealings with the Fluor Daniels' cheques. 21 (b) This ground involved an attack upon a finding of fact. The Tribunal found that "the applicant…agreed to adhere to any other conditions set down by the respondent" (par 24). The application form for a Bridging Visa E contained a declaration above Goldie's signature in the item numbered 22 that: "…I understand that conditions will apply to this visa and if I fail to abide by these conditions my visa may be cancelled and I will then become unlawful and would be liable to detention and removal under the Migration Act." There is no merit in this ground.
Irrelevant Considerations 22 (a) The Tribunal was entitled to adopt the reasoning of Cooper J and in doing so did not take into account an irrelevant consideration. 23 (b) This ground has already been dealt with under the heading of "Improper Exercise of Power". Goldie accepted in argument that it was the same point (T23).
Application of Principles 24 Goldie said one of the primary submissions he had made to the Tribunal was that it ought to have regard to the fact that the decision before it related to a temporary visa and that he was not asking the Tribunal to allow him to enter the community on a permanent basis. The Tribunal was, of course, aware of the nature of the visa for which Goldie was applying. It determined, as it was required to do, whether he was a person of good character for the purposes of s 501. It referred to his submission that he would have to be mad to breach his bail conditions. The Tribunal then said, at par 51: "It may well be that to breach such conditions would be both unlawful and foolish but I must take full account of the fact that that is exactly what the applicant did do until very recently when he was living and working in the community as an illegal non-citizen under an assumed name. His track record strongly suggests that he is likely to act dishonestly at the expense of the Australian community if he finds himself free to do so." Plainly the Tribunal assessed the risk that would flow from even a temporary visa and decided that it was not acceptable. There is no error in its application of principle.
Undue Weight 25 There is no error of law disclosed under this ground which also, in part, revisits the previous ground.
Absence of Reasons for Finding 26 In his submissions Goldie said he "just felt that perhaps in the circumstances, because it was such a difficult hearing, and all the rest of it, the Tribunal may well have given a bit more reasons". It is not necessary to traverse this ground in any detail. The Tribunal's reasons were adequate and comprehensive.
Against the Weight of Evidence 27 This ground discloses no error of law.
Fraud 28 As counsel for the Minister submits, there is no basis for the claim that Ms Spence's statement was "fraudulently and wilfully altered". The Tribunal only referred to the statement in its reasons at pars 15 and 16. It did not rely upon them in its conclusions about his character or in the exercise of its discretion. In the event, in the course of oral submissions Goldie withdrew that ground of review (T30).
Briginshaw Test 29 As argued this was really a questioning of the Tribunal's approach to its fact finding. No error of law was disclosed.
Conclusion 30 None of the grounds is made out. The application will be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
Counsel for the Applicant: Mr BGJ Goldie appeared in person
Solicitor for the Respondent: Australian Government Solicitor
Goldie
Minister for Immigration & Multicultural Affairs