Madafferi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant was refused a visa on character grounds under s 501 of the Migration Act 1958 (Cth). He appealed to the Administrative Appeals Tribunal (AAT). The applicant now appeals to this court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of Deputy President Forrest refusing an application that he not sit on the hearing of the AAT appeal by reason of an allegation of apprehended bias. 2 The applicant is an Italian citizen born in that country on 10 January 1961. He has relatives in Australia. He made several visits to Australia and overstayed his visa. He was detained by Departmental officials on 5 July 1996. On 12 July 1996 he applied for permanent residence as the spouse of an Australian citizen. On 3 June 1997 that application was refused under s 501. At the time s 501 provided:

"501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if: (a) subsection (2) applies to the person; or (b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would: (i) be likely to engage in criminal conduct in Australia; or (ii) vilify a segment of the Australian community; or (iii) incite discord in the Australian community or in a segment of that community; or (iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way. (2) This subsection applies to a person if the Minister: (a) having regard to: (i) the person's past criminal conduct; or (ii) the person's general conduct; is satisfied that the person is not of good character; or (b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct. (3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person." 3 On 12 June 1997 the applicant applied to the AAT for review of the refusal to grant him permanent residence. There then followed some correspondence with the Department about the material to be submitted at the hearing, and in particular materials said to be prejudicial to the applicant. 4 Following a number of directions hearings the matter came on for further directions before Deputy President Forrest on 15 May 1998. The applicant was represented by counsel and debate took place about a statement of a Mr Bastin to which I shall refer in a moment. Counsel for the Minister was asked to withdraw the Bastin statement but refused. Counsel for the applicant objected to the statement being placed before the Tribunal. Deputy President Forrest refused to order the statement to be removed from the documents, and stated that it was something that should be decided at the hearing. He directed that the matter be set down for hearing on 24 and 25 August 1998. 5 The statement of Mr Bastin is dated 12 May 1998. He states that he is a Sergeant of Police stationed at the Organised Crime Squad of the Victoria Police, and currently the Senior Intelligence Manager of the Squad. He says that on 9 November 1995 he was contacted by a Departmental Officer who told him he had received information from an informer that the applicant was wanted for murder and Mafia related crimes in Italy. Mr Bastin says that in late November 1995 he spoke to the informer, identified only as "Informer A", who told him that "once Madafferi was out of the country he [the informer] would come forward with information relating to Madafferi's involvement in two unsolved murders that have been committed in the State of Victoria." 6 Mr Bastin goes on to speak of inquires that he made with the Italian authorities through the Australian Federal Police liaison officer in Rome. In summary, those inquiries revealed that the applicant was currently wanted on an arrest warrant issued on 16 January 1995 by the Public Prosecutor's Office at Reggio Emilia for offences relating to attempted extortion, receiving, illegal possession of drugs and other matters. It also appeared that the applicant had convictions in Italy for offences of attempted murder, illegal possession of drugs, extortion and violation of weapons laws. He had been released from prison in 1987 after serving a sentence for kidnapping, Mafia conspiracy, theft and other offences against the person. 7 Mr Bastin then goes on to give considerable detail about the applicant's brother, Antonio Madafferi, and relates information from unnamed informers as to his involvement in a substantial number of crimes, including murder, gun-shot wounding and arson. 8 The statement concludes with Mr Bastin's belief that the applicant "belongs to a crime family involved with blackmail, extortion and murder, and if allowed to remain in Australia will continue to carry out acts of violence on behalf of an organised criminal syndicate." 9 On 24 August 1998 when the matter came on for hearing Deputy President Forrest indicated at the outset that he had read the statement of Mr Bastin. Mr Rose, counsel for the applicant, submitted: "Our concern is that the material of Mr Bastin's, which does not deal with Francesco Madafferi but deals with another person who we do not act for, who is nothing - well, he is our brother, but it does not connect with us. It throws up such a flavour that the whole thing is so tainted now that you, sir - and this is said with great respect - should disqualify yourself because in effect it becomes like an apprehended bias." Shortly afterwards counsel said of the applicant: "He has married and he has three children and has led an existence which is untainted. That is then suggested because his brother - and even then nothing has been proved - but allegations that are made about his brother, that reflects on him, and therefore should lead to section 501 of the Migration Act being satisfied. At the end of the day we do not believe you could successfully be seen to put that out of your mind, and therefore you should disqualify yourself." The Deputy President gave a ruling in these terms: "Look, I have heard what counsel have said in regard to this and I certainly saw the material. Much of it did not relate to this applicant. But having said that, ultimately it is for this Tribunal to determine questions of relevance and weight, and there is a good deal to be said in what Mr Downing [counsel for the Minister] has said that Tribunals are called upon to do this from time to time, and in making decisions on documents have to in fact read what is contained in the documents. I do not propose to accede to your request, Mr Rose, but obviously it is a matter which will bear considerably on me as to given the nature of the inquiry under section 501(2) and the way in which the case has been put for the applicant and in turn for the respondent. But because of what has been put, this Tribunal would have to be certainly satisfied to a very considerable extent to be making the findings of the sort that might be contemplated by the respondent's facts and contentions." 10 At counsel's request the Deputy President adjourned the matter to enable the present appeal to be brought. 11 The applicable law is not disputed. In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 the High Court said the principle is "… that 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 might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." 12 In the more particular circumstance of a judge or judicial officer seeing prejudicial material, I said in Johns v Australian Securities Commission (1992) 35 FCR 16 at 37: "It is an everyday task for judges to disregard evidence which has been successfully objected to as irrelevant or otherwise inadmissible. This is one of the fundamental skills that a legally qualified tribunal of fact brings to bear, in contrast with a jury where exposure to inadmissible evidence of a substantial nature often does require the discharge of the jury. In Amoe [v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29] the High Court was dealing with a criminal trial but one conducted by a judge in Nauru sitting without a jury. The court said ( at 34): 'If a judge trying a case without a jury comes to the conclusion that the prejudicial effect of an answer would outweigh its probative value, must he or she disqualify him or herself? The answer must surely be that it is only in the most exceptional case that a judge is required to disqualify him or herself because a prejudicial question has been asked or answered. In a trial before a judge without a jury, prejudicial questions and answers are perceived as having a different effect from that which, by the common law tradition, they have in a trial by jury'. It is true that the High Court goes on to say (at 34) that: 'From time to time, cases occur where the nature of the prejudicial material and its relationship with the issues which have to be decided is such that the appearance of impartiality is necessarily destroyed by a judge deciding the case after hearing or reading such material. In such a case, the prudent judge will disqualify him or herself from further hearing the matter, irrespective of the degree of confidence that the judge has in his or her ability to determine the case uninfluenced by the prejudicial material. If the judge fails to do so, it will fall on the appellate court to set aside any resulting conviction'." 13 A Deputy President of the AAT must be a legal practitioner of at least five years standing: Administrative Appeals Tribunal Act s 7(1A). For present purposes I see no relevant distinction between that office and that of a judge. It is also important to note the context in which this issue arises, namely the refusal of a visa under s 501. It is apparent from the terms of that section that refusal of a visa on these grounds will take the decision-maker, whether the Minister or the AAT on appeal, into the world of criminal intelligence, informers, suspicions and the like. Hearsay is not necessarily excluded; s 33(1)(c) of the Administrative Appeals Tribunal Act provides that the AAT is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. Thus appeals from decisions of this nature are inherently likely to involve material of the general kind contained in Mr Bastin's statement. Whether his statement, or any parts of it, should be disregarded or given little weight are matters for argument on the merits. 14 It is plain that the Deputy President, from the terms of his ruling, was alive to the fact that very serious allegations are made based on little or no evidence in a conventional sense. The Deputy President, so far from indicating taint, bias or pre-judgment, was giving an indication, which I have no reason to doubt, that he would approach the hearing of this matter in a careful and lawful way. 15 I do not think any reasonable person could apprehend that the Deputy President would bring anything other than an unprejudiced mind to this matter, and in particular to the question how Mr Bastin's statement is to be treated. The reality of this case is that the applicant is seeking a ruling on the admissibility of this particular evidence, an exercise on which I decline to embark. 16 There was another ground which was not raised in the notice of appeal although it was mentioned in contentions of fact and law filed some time ago. Over the objection of counsel for the Minister, I allowed an amendment to raise it. The point is that the proceeding on 15 May 1998 presided over by Deputy President Forrest was a "conference" and therefore s 34(4) of the Administrative Appeals Tribunal Act had the effect that, the applicant having objected, Deputy President Forrest was not entitled to be a member of the tribunal for the purpose of the proceeding. 17 It is plain that the Act draws a distinction between the "conference" referred to in s 34 and a directions hearing referred to in s 33(1A). The only material before me as to what happened on 15 May 1998 is contained in an affidavit sworn by the applicant's solicitors in terms to which I have already referred. That conveys to me that it is more properly to be characterised as a directions hearing than a conference. The essence of a conference is a frank and without prejudice discussion of the merits of a case, somewhat like a mediation hearing. One can understand a party, having engaged in such an exercise, being given the right to object to the AAT member presiding at a future hearing on the substantive merits, but plainly a directions hearing is not of that character. 18 The appeal will be dismissed. I order that the applicant pay the respondent's costs, including reserved costs.