Reasoning
(1) Test of "actual bias"
157 The ground of jurisdiction based on actual bias provided for in s 476(1)(f) has been considered in a number of authorities to which the Court was referred and from which it is not necessary to make extensive citation here. The paragraph was considered by the Full Court in Sun Zhan Qui. Wilcox J at 551 accepted actual bias involved a disposition to "approach the issues in the case otherwise than with an impartial and unprejudiced mind: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352." He pointed out it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested: Re R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264. He continued:
"…Lindgren J referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Fed C of A, North J, 24 June 1996, unreported) that s 476(1)(f) requires an applicant to show 'that the tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case'. That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (Fed C of A, Lockhart J, 18 October 1996, unreported). He made three points. First, the fact that a decision‑maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Secondly, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Thirdly, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm."
At 555 Burchett J said:
"Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. On this basis, the appellant relies on various aspects of the tribunal's decision as explicable only, or at least most naturally, by bias. When the court examines the material bearing on this issue, I think it should interpret the words of s 476(1)(f) in their natural sense. The use of the word 'actual' strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law.
…
In my opinion, the statute, when it used Devlin LJ's expression 'actual bias', substituted a test that looks to whether the tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say 'at least in some respect' because the statute extends to the situation where 'the decision was … affected …by actual bias'. The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong‑headedness, whether in law, logic, or approach."
North J at 563 said that where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances: Re Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224. He said that case demonstrated proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, taken together, form the whole picture leading to the conclusion of pre-judgment. It was, he said, unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. In his view the case also demonstrated that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant.
158 It will be observed from this that for actual bias to be established there must be evidence of "a closed mind to the issues raised", "preliminary views incapable of alteration", prejudgment of the case at least in some respect, real although not necessarily intentional.
159 In R v Kent the question was whether a medical practitioner who had expressed a view adverse to an applicant should determine whether the applicant was permanently disabled under the Police Pensions Regulations 1971. It was held such a decision was a quasi-judicial decision requiring procedural fairness. Lord Denning said at 670:
"That brings me to the first question: was it proper for the Kent police authorities to refer for decision this question to Dr. Crosbie Brown? I must say I think it was not. Dr. Crosbie Brown was disqualified from acting. He had already expressed an opinion adverse to Chief Inspector Godden. As early as July 23, 1970, Dr. Crosbie Brown had said that the chief inspector was suffering from a mental disorder. Dr. Crosbie Brown acted on that opinion by putting him on sick leave. He has put his opinion on affidavit. He has committed himself to a view in advance of the inquiry. I think it would be impossible for Dr. Crosbie Brown-who is just a general medical practitioner and not a consultant-to bring a completely impartial mind to bear upon the matter. In any event, to the person affected by it, Chief Inspector Godden, it must inevitably appear that Dr. Crosbie Brown cannot bring an impartial judgment to bear upon the matter."
Salmon LJ agreed at 672. Karminski LJ at 673 considered it would be almost impossible for Dr Brown to be impartial in circumstances where he had formed a view earlier. It will be noticed this decision related to issues of procedural fairness rather than actual bias: cf Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 210.
160 In Laws v Australian Broadcasting Tribunal at 100 Gaudron & McHugh JJ said:
"When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her."
Their Honours (at 101-102) distinguished Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Reg v Watson as cases where settled views had been reached so that judges were appropriately disqualified from hearing matters to which those views related. Although this dicta addresses the issue of reasonable apprehension of bias it has been relied upon to inform a consideration of the requirements of actual bias: Durairajasingham v Minister for Immigration and Ethnic Affairs Davies J, Federal Court of Australia, 11 November 1997, unreported and cf Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281.
161 I accept that, as the appellant submits, the correct test of actual bias is whether pre‑judgment has occurred - that is, beyond a firmly or even strongly held view to the point where the view is not open to change by the relevant facts falling for consideration. This is exactly how the primary judge understood the test of actual bias. In my opinion he acted on a correct understanding of the relevant law and did not fall into error in that regard.
(2) Inferences drawn
162 The case for actual bias before the primary judge was put in relation to the following circumstances:
"(a) The appeals pursued by the Minister in the Federal Court against the successive decisions of the Administrative Appeals Tribunal which appeals in each case included the ground that the Tribunal's decision was so unreasonable that no reasonable decision-maker could reach such a decision.
(b) The Minister's personal and public criticism of the Administrative Appeals Tribunal in relation to its decision concerning Mr Jia on radio on 14 April 1997.
(c) The Minister's personal involvement in the decision to proceed with a course of action which involved granting and then cancelling Mr Jia's visa.
(d) The Minister's clearly expressed (but mistaken) view of the law that Mr Jia having been convicted of a serious crime and imprisoned could not be a person of good character.
(e) The Minister's criticism of the Administrative Appeals Tribunal's decision in his letter to [the President of the Tribunal] dated 30 April 1997.
(f) The Minister's decision to exercise the power given under s 502 to declare Mr Jia an excluded person.
(g) The failure of the Minister to give any personal evidence to this Court as to his state of mind."
163 Paragraph (b) was a reference to the statement by the respondent in a radio interview on 14 April 1997 when he said:
"I don't believe you are of good character if you've committed significant criminal offences involving penal servitude."
Asked what power he had to overturn the Tribunal's decision relating to the appellant and whether he could ask for a report or appeal, the Minister answered:
"I'm considering what steps I can take and there are some avenues. One of the suggestions that's been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential costs might be to the community if it opens up a whole host of other possible appeals to the Federal Court."
The relevant criminal offences were sentences totalling six years three months imposed on the appellant for sexual penetration, threat of unlawful harm, unlawful detention and unlawful assault. The former was a reference to a decision of the Tribunal made on 14 March 1997 to the effect previously set out.
164 Paragraph (e) was a reference to the following statement in that letter:
"That persons such as Mr Jia can be found to be of "good character", despite his recent conviction for a serious crime undermine the Government's ability to control entry into Australia on character grounds. I am concerned that this may set a precedent for decisions by the AAT in the future. To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations. Although I recognise that AAT decisions are not precedential, as a matter of law, such decisions may be viewed by the Tribunal and officers in determining the character requirements under s 501 as the acceptable standard. It would undermine the Government's desire to protect the Australian community." (Emphasis added)
He referred to another case and then continued:
"The significance of these two cases is that they show that the AAT has on occasion misconstrued the tests involved in character decisions. They also illustrate, to my mind, a tendency on the part of the Tribunal to afford greater weight to the interests of the individual and their family than to the protection of the Australian community and the integrity of Australia's entry programs." (Emphasis added)
He concluded:
"The community's expectations of the Government to prevent entry or remove or deport will not be met if the Tribunal overturns the Government's decisions in relation to those who are not of good character or have committed serious crimes. The recent decisions of non-citizens convicted of serious criminal offences who have had their deportation orders overturned, as well as decisions to overturn the refusal of visas on character grounds, have heightened community concerns especially where a number of these have re-offended. The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia."
There is no evidence the Minister resiled from or ceased to entertain these views.
165 The reasoning of the primary judge by way of inference on all those circumstances was expressed as follows:
"The question is whether by [the respondent's] mental state he was disabled from or unwilling to have regard to other relevant circumstances.
The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.
The Minister's case may not have been helped by his public discussion of Mr Jia's case on radio in a way that exposed his views adverse to Mr Jia. For the hypothesis is then open that having taken a public position on what is undoubtedly a politically sensitive case the Minister would find it difficult to appear to resile from that position. On the other hand, he did leave himself an escape route in the radio interview referring as he did to the need to "weigh up" whether it was proper for him to adopt the procedure of granting the visa and then cancelling it on character grounds. Moreover, the Minister is an elected official, accountable to the public and the parliament and entitled to be forthright and open about the administration of his portfolio which, it is common knowledge, is a matter of continuing public interest and debate.
The Department had provided the Minister with a comprehensive minute in advance of his decision which drew attention to factors both adverse and favourable to Mr Jia.
The Minister's criticism of the Administrative Appeals Tribunal related not just to the Jia case but was placed in a wider context of concern about his perception of a trend in Tribunal decision-making. He was entitled to make those observations and to draw them to the attention of the Tribunal President. In assessing the standards of behaviour required of the Minister it is important to bear in mind that he is not acting as a judge or tribunal but as an administrative decision-maker implementing government policy.
While it is clear that the Minister had strong views about Mr Jia's case, I am not satisfied that those views precluded him from the consideration of all the relevant circumstances so as to constitute actual bias inducing or affecting the decision within the meaning of s 476(1)(f)."
166 In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 Beaumont and Lee JJ said:
"The court must be satisfied that the judgment of the trial judge was erroneous and it may be so satisfied if it reached the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence and the court would be unlikely to be so satisfied if it was shown the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made."
In my opinion the inferences to be drawn from all the circumstances relied on for the appellant including particularly the respondent's statement on radio on 14 April 1997 and his letter to the President of the Tribunal was that the respondent's view had passed the point of strong prejudgment and reached the point where the respondent was precluded from consideration of all the relevant circumstances in relation to the appellant. The conclusive circumstances for the drawing of this inference are:
(1) The expression of belief by the respondent that a person (which must include the appellant) could not be of good character if they have committed significant criminal offences. The reference to "weighing up" was only directed to the propriety of the course proposed, not to the circumstances relevant to the appellant.
(2) The respondent considered that if the appellant was found to be of good character the Government's aims would be undermined. The respondent as a Minister of the Crown could not therefore embark on a course in relation to the appellant which he considered had that effect.
(3) The Tribunal decision should not set a precedent for the future. The respondent thereby ruled out that he would act to the same effect in the future in relation to the appellant.
(4) The Tribunal decision warranted condemnation. The respondent would not therefore have embarked on a course in relation to the appellant which he considered brought that result.
(5) The Tribunal's decision involved a misconstruction of the tests in relation to character decisions. The respondent would not therefore have been prepared to apply the subsection in possible favour of the appellant as the Tribunal had done.
167 By those expressions and statements the respondent precluded himself from any possible acceptance of the view that the appellant could be found now to be a person of good character despite his past criminal record. The balanced character of the Departmental memoranda to him cannot disguise the position which the evidence shows the respondent had reached in his mind.
168 The drawing of these inferences, for which the appellant bears a heavy onus, is aided by the application of the Jones v Dunkel principle applied to the absence of any evidence from the respondent when issues were raised on the evidence for him to answer.
169 The Jones v Dunkel principle may be applied in respect of a Minister: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 66 FCR 40 at 62. The respondent was on the evidence relating to his statements required to explain or contradict why they did not have the consequence that he would not allow any circumstances in which the appellant could be found to be of good character. The failure to give such evidence is unexplained.
170 The respondent being precluded by his own statements from concluding the appellant was of good character it inevitably followed he had to be satisfied the appellant, as a person with a past criminal record, was not of good character. This had the consequence s 501(2) applied to the appellant. The condition for the triggering of the Minister's discretion to cancel the visa under s 501(1) was therefore made out. The exercise of that discretion was therefore directly infected by the view on which there was actual bias.
171 Conscious again of the heavy onus necessary to establish actual bias, I therefore conclude the primary judge failed to draw inferences which should have been drawn. I would allow the application for review on the ground of actual bias.
172 In doing so I do not lack appreciation of the opinion held by the respondent (as recorded in the reasons of the primary judge) that "most Australians would be surprised that a non‑citizen with such convictions has been found to be of good character." However the law requires a decision-maker exercising the statutory power under s 501(1) relating to existence or non‑existence of good character to consider all the relevant circumstances including circumstances which have developed since the fact of conviction. The law therefore admits of the possibility that facts could emerge showing achievement of good character despite prior convictions. For it not to do so would be to deny the possibility of any rehabilitative effect of the application of the criminal law. Parliament may choose to negate those principles and to preclude such considerations but unless it does so, the decision-maker acting under s 501(2) must face the possibility, remote as it almost always may appear, that a finding of good character at the time of the decision could be properly made despite prior convictions for serious offences.
173 In my view this has been recognised and decided by the Full Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136. In the reasons of the Court (Burchett, Branson and Tamberlin JJ) it was said at 140:
"[The Deputy President] commented:
In my view these guidelines go well past the bounds of reason if applied literally. To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of twelve months or more, no matter when that conviction took place, is quite unreasonable. It is necessary in assessing character to look at all relevant circumstances including the age of the convictions.
We think the learned deputy president's comment is plainly justified. The guidelines are both inhumane and irrational. For a person to 'be taken to be not of good character', apart from special circumstances, upon any such basis would, of course, also be quite inconsistent with s 501(2), the provision defining the minister's power, which authorises satisfaction in relation to the actual present state of a person's character - 'is not of good character'. "
In relation to s 501(2) the Court said (at 141-142):
"We think the key to the understanding of s 2(a) is to be found in its object - satisfaction on the issue whether a person is not of good character. In deciding whether he is so satisfied, the minister is required, by the phrase 'having regard to', to look at the conduct of the person the subject of the enquiry. Of course, an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters. It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of 'general conduct'.
It was these understandings of the law which were not recognized in the respondent's statements. Those statements, properly understood, denied these matters. In so doing they transposed a strongly held prejudgment to one of which, in the respondent's mind, did not admit of any change. In those circumstances the proper inference from the statements is that they established actual bias, as rare and as difficult as it may be for that inference to be drawn.