IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 703 of 1996 GENERAL DIVISION )
ON APPEAL FROM THE GENERAL DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL
CONSTITUTED BY THE HONOURABLE JUSTICE PURVIS
BETWEEN: MONICA DEL CARMEN LILLO MORALES
Applicant
AND: MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
Respondent
CORAM: BLACK CJ, BURCHETT & TAMBERLIN JJ
PLACE: SYDNEY
DATED: 6 APRIL 1998
REASONS FOR JUDGMENT
THE COURT:
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal ("the AAT") constituted by Purvis J.
The appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").
The decision affirmed a previous decision of the Minister's delegate refusing to grant an application for an entry visa to Mr Demitro Sepulveda Gonzalez ("Mr Gonzalez") pursuant to s 501 of the Migration Act 1958 (Cth) ("the Act"). Mr Gonzalez had applied for a visa to enable him to migrate to Australia as the de facto spouse of an Australian permanent resident, the applicant.
Previous determinations
On 19 April 1995 the AAT, constituted by Mr B J McMahon, affirmed the decision of the delegate refusing the application for an entry visa. The decision of Mr McMahon was made on the basis that Mr Gonzalez was a person whose entry or presence in Australia would incite discord in a segment of the Australian community within the meaning of s 501(1)(b)(iii) of the Act. In the course of his reasons for decision, Mr McMahon determined that the evidence placed before him was not sufficient to attract s 501(2)(b), the "association" ground.
An appeal was taken from that decision under s 44 of the AAT Act to this Court. It was heard by Sackville J. The only live issue before his Honour was as to the form of the order. This arose because the Minister had conceded, prior to the hearing, that the AAT erred in law in finding that Mr Gonzalez was a person whose entry or presence would incite discord in a segment of the Australian community. Accordingly, the only dispute for determination by his Honour was whether the matter should be remitted to the AAT to be decided in accordance with law or whether it should be remitted with a direction, as contended for by the applicant, that s 501 did not apply to Mr Gonzalez.
His Honour ordered that the decision of Mr McMahon be set aside and the matter be remitted to the AAT to be dealt with by law. His Honour refused to give any direction in relation to the application of s 501.
The remitted matter was heard by the AAT, constituted by Purvis J. His Honour regarded the remittal as requiring a rehearing and permitting the introduction of further evidence as to the association of Mr Gonzalez with specified groups, persons, or organisations in Chile. This evidence was directed to s 501(2)(b), the "association" provision. Having considered this further evidence, his Honour decided that Mr Gonzalez was not a person of good character within the meaning of s 501(2)(b) of the Act by reason of his association with other persons or groups. He affirmed the conclusion of the Minister's delegate, that the application should be refused, but the ground was a different ground to that which was found to be established in the earlier decision.
The order of Sackville J, which set aside the AAT decision, remitted the matter but did not, in terms, specify whether the matter was to be heard with or without further evidence or whether s 501(2)(b) was to be reconsidered.
Legislation
The relevant provisions of the Migration Act, for present purposes, are found in s 501, which provides:
"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." (Emphasis added)
The relevant provision of the AAT Act is s 44 which reads:
"44(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law from any decision of the Tribunal in that proceeding.
....
(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with sub-sections (1) and (2) and that jurisdiction:
(a) may be exercised by that Court constituted as a Full Court
.....
(c) shall be so exercised if the Tribunal's decision was given by the Tribunal constituted by a member who was ... a Judge.
(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court." (Emphasis added)
Because the present appeal is from the AAT constituted by a judge, although it is in the original jurisdiction of the Court, it has been heard by a Full Court: Federal Court of Australia Act (1976) s 20(2).
The issues
The Amended Notice of Appeal seeks declarations to the effect that s 501 does not apply to Mr Gonzalez. The grounds relied on are as follows:
1. The tribunal erred in holding that Mr Sepulveda was a person of bad character merely because he was associated with the Carabineros, the CNI and the army.
2. The tribunal erred in holding that the mere association with a person or organisation described in the section is sufficient to justify a finding of bad character pursuant to s 501(2)(b) of the Migration Act 1958.
3. The tribunal erred in holding that Mr Sepulveda was of bad character because of his failure to disassociate himself from the Carabineros, the CNI and the army.
4. The tribunal erred in assuming that because of its finding of bad character, pursuant to s 501(2)(b) of the Migration Act, that destabilisation of the Australian community would result if Mr Sepulveda were permitted to enter Australia.
5. The tribunal erred in devaluing the interest of the applicant's children as factors in the exercise of the discretion provided by s 501 on the basis that their position is dependent on the actions of their parents.
6. The tribunal erred in considering the application of s 501(2) of the Migration Act 1958, to Mr Demetrio Sepulveda Gonzalez.
Factual background
Mr Gonzalez was born in Chile on 20 September 1955. He joined the Chilean police service, the Carabineros, in 1979. In 1983 he was assigned to the Central National de Informaciones ("CNI") to become a bodyguard to the Chilean President, General Pinochet. In 1988 the Carabineros withdrew its officers from the CNI. Mr Gonzalez was offered a position as a civil employee of the army so that he could continue in his employment as bodyguard to General Pinochet. He remained assigned to the CNI until that organisation was abolished in 1990. Mr Gonzalez continued as General Pinochet's bodyguard after the General ceased to be President of Chile in 1990. In 1992 he resigned from this position. His reason for leaving was that he could earn more money elsewhere.
The applicant was born in Chile on 9 November 1953. She met Mr Gonzalez in 1975, and they began to live together in 1976. They had two children, born in 1981 and 1983. The applicant lived with Mr Gonzalez until 1988 when she and the children moved into her brother's house. On 17 February 1989 she was granted a tourist visa valid for six months to travel to Australia with two of her children. The applicant arrived in Australia with the children on 19 March 1989. She lodged an application for grant of residence status on humanitarian grounds in September 1989. This application did not include Mr Gonzalez.
In November 1991 she lodged a statutory declaration with the department stating that she wished to include Mr Gonzalez, who was then residing in Chile, in her application. The application for residence status was refused on 2 November 1992, solely because Mr Gonzalez failed to meet the character requirements for entry into Australia. This decision was affirmed by an Immigration Review Panel. These earlier proceedings were finalised in March 1993 by deleting the name of Mr Gonzalez from the applicant's application and granting her and her two children permanent residence.
On 14 October 1993 Mr Gonzalez lodged an application at the Australian embassy in Chile for a visa to travel to Australia and live permanently as the de facto spouse of the applicant. In a letter dated 21 April 1994, he was advised that his application had been refused on the basis that he did not qualify as the de facto spouse of the applicant. On 3 June 1994, the applicant's solicitors sent an application for review of this decision to the Migration Review Office. In a letter dated 23 June 1994 to the applicant's solicitors, the Migration Review Office advised that the application for review was incompetent because the primary decision-maker had made a determination that s 180A of the Act, (now s 501), applied to Mr Gonzalez. The determination referred to in this letter was a file note in Mr Gonzalez's file, which reads:
"FILE NOTE: If this case goes to an appeal, the reviewing officer should also note that this applicant, due to his former CNI association, fails to meet the character requirements as set out in the Migration Act 1958, Section 180A(1)(b)(iii) & (iv), also 2(b)."
The subsequent history, including the first appeal to the AAT and the hearing before Sackville J, is set out earlier.
On the remitted hearing before Purvis J, oral evidence was given by Ms Derricott, Dr Peter Ross, Mr Gonzalez and the applicant. Ms Derricott was a consultant psychologist, who had prepared a psychological report on the applicant. Dr Peter Ross was a Senior Lecturer at the University of New South Wales and Head of the University's Department of Spanish and Latin American Studies. He gave evidence based on familiarity with the political and social situation prevailing in Chile at the relevant times.
Grounds 1 to 4 - Interpretation and application of s 501(2)(b)
The first and second grounds of appeal are that the AAT erred in law because it implicitly found that Mr Gonzalez was a person of bad character merely because of an association with the Carabineros, the CNI and the Army. It was submitted that there was, therefore, an error in interpretation and application of the association ground.
The applicant submits that the AAT misconstrued s 501(2)(b) because the section requires an assessment of the person's character in the context of the relevant association. The mere fact of association is not sufficient, of itself, to ground an adverse finding. On a correct interpretation of that section it is submitted that it was necessary to assess the effect of the association on the person's character. A finding of guilt by mere association is said to be inimical to legal and administrative standards in this country. If mere association were sufficient, it is submitted, there would be no need to refer to "good character" in s 501(2). It would be sufficient to simply provide for refusal or cancellation of a visa upon proof of an association of the specified kind.
As a result of this misinterpretation, it is said, the AAT did not address the correct question as to the effect on the character of Mr Gonzalez of the association with the nominated groups.
The Minister submits that the AAT correctly stated, formulated and applied the relevant test. The test addressed by the AAT was whether it was satisfied that Mr Gonzalez was not of "good character" because of his association. This is essentially a question of fact and opinion: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 and Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194. The question whether a person is of "good character" is one of fact: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
In construing s 501(2)(b) it is helpful to compare its terms with those of par (a), the ground which is concerned with the conduct of the person. This conduct can be of two types; (i) the past criminal conduct and (ii) the general conduct of the person in question. The two categories are not, of course, mutually exclusive. The general conduct of a person may involve criminal conduct and criminal conduct may involve aspects of general conduct.
Paragraph (b), on the other hand, is concerned with the person's association with a person, group, or organisation reasonably believed by the Minister to be involved in present or past criminal conduct. The emphasis shifts in this paragraph from the conduct of the applicant to the criminal conduct of the other person, group or organisation.
Subsection 501(2) does not provide exclusive and separate categories. There can often be an overlap. A person's past criminal conduct or general conduct may, for example, arise from, or be influenced by, an association with other persons or bodies involved in criminal conduct. The question under s 501(2)(b) is whether the Minister is satisfied that a person is not of "good character" because of the person's association. The latter words are important. They require a causal link. The association must be such that it impacts adversely on the character of the person to such an extent that he or she can be said to be not of good character. The expression "good character" is a complex one. In Irving, Davies J considered that reputation was an important consideration. At 425 he said:
".... the term 'good character' is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute... Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities."
His Honour went on to observe that it is not the function of the Court to form its own view whether, as a matter of fact, a person is not of good character. Lee J, in that case, took a somewhat different approach in that he placed emphasis on the enduring moral qualities of the person in question: see 431-432. The expression "good character" was more recently examined by the Full Court in Baker v Minister for Immigration and Ethnic Affairs (1997) 73 FCR 187. The Court referred to the judgment of Lee J and said at 197:
"The words 'good character' in the section [s 502(1)] should, as Lee J pointed out in Irving (at 431-432) be understood as a 'reference to the enduring moral qualities of a person'. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister ... must still come to a further conclusion, whether or not to be satisfied that the person is not of good character."
The assessment as to whether a person is not of "good character" by reason of association, will depend on many and varied considerations, such as the extent to which he was aware of the criminal conduct in question (whether that is shown by direct evidence or by inference) and the person's conduct after becoming aware of criminal conduct on the part of the other person or group. The nature, notoriety and extent of the criminal conduct will be relevant.
There are, of course, situations in which a person may be associated with a person or body involved in criminal activity where the association may not detract from the good character of that person. Any assessment must depend on the particular circumstances in each case and the nature of the association, but awareness will usually be an important element. Where awareness is present it is then necessary to assess the practical possibility of disassociation or of affirmative action against the person or group in the particular context. As pointed out in Baker's case, the character of a person is made visible through the conduct of that person. Failure to disassociate, if that course was practicable, may evidence the character of the person in question.
Accordingly, on a proper reading of the association ground, the mere fact of association would not of itself satisfy the requirements of the paragraph. The provision requires the drawing of a conclusion from that association in the circumstances of the case. There is no clear-cut delineation between the paragraphs in s 501(2) and it is a question of fact and degree whether a person can be described as not of "good character" because of an association. The fact that "conduct" is referred to in par (a) and not in (b) does not compel a conclusion that the latter paragraph is not concerned with the person's conduct or reaction to the criminal conduct of the persons or groups with which he or she is said to be associated.
To determine whether the AAT misconstrued the test, it is necessary to examine its approach in the reasons for decision.
In considering whether s 501(2)(b) applied the AAT first examined the question of whether there were reasonable grounds to believe that the CNI, Carabineros, and Army were involved in criminal conduct. It was satisfied that these grounds existed. The AAT then proceeded to consider the nature of Mr Gonzalez's association with these organisations.. During his examination, Purvis J considered the positions held and the duties performed by Mr Gonzalez as a bodyguard to General Pinochet; his work as a member of the Carabineros assigned to the CNI; and his employment by the Army. It is noted in the reasons that Mr Gonzalez felt "honoured" to be a bodyguard and reference was made to his apparent acceptance as a legal and trustworthy aide. It is recorded that he feared persecution if he tried to leave the position. However, he gave evidence at the hearing that he could have left the job at any time.
His Honour then undertook a comprehensive examination of the actual and likely awareness of the criminal activities on the part of Mr Gonzalez. He made reference to newspaper reports and public knowledge of illegal activity. In particular, his Honour was satisfied that Mr Gonzalez was aware of rumours or allegations that the organisations were involved with torture both before and after he was assigned to the CNI to be the bodyguard of General Pinochet.
His Honour's reasons at par 98 record:
"The Tribunal notes that in assessing whether Mr ... Gonzalez is not of good character because of his associations, it must consider, in the words of Deputy President McMahon in Re Strangio (supra), whether or not Mr ... Gonzalez's qualities are likely to be accepted as demonstrating an adherence to ordinary standards of good behaviour in the Australian community. The letters of recommendation from Therese and Sharon Matthews provide evidence of Mr ... Gonzalez's qualities in the period after he ceased to be General Pinochet's body-guard. These must be considered against the evidence of his association with organisations which have been involved in criminal conduct."
The following paragraph of the reasons reads:
"99. Mr ... Gonzalez had an association with the Carabineros, the CNI and the Army as a policeman and as General Pinochet's bodyguard over a period of thirteen years. He was happy to have been assigned to the CNI not only because of the financial reward he would receive but also the honour of working for General Pinochet. He was clearly found sufficiently trustworthy to occupy such an important position. In 1988 the Carabineros withdrew their officers from the CNI and Mr ... Gonzalez was offered and accepted a position in the Army in order to continue working as General Pinochet's bodyguard. It was Mr ... Gonzalez's evidence that, although he could have left at any time, he accepted this offer and remained assigned to the CNI until 1990 when it was abolished. He thereafter remained with General Pinochet until 1992 as an employee of the Army. He indicated the only reason he ceased working as General Pinochet's bodyguard was that he could earn more money elsewhere."
The conclusion reached by his Honour, is set out in par 100:
"100. Mr ... Gonzalez's lengthy association with the Carabineros, the CNI and the Army during a period in which a significant number of people were unlawfully arrested, detained, assaulted, tortured and murdered does not reflect well on his character. This view is strengthened by the Tribunal's finding that Mr .. Gonzalez would have been aware of the human rights abuses engaged in by the organisations with which he was associated. Even be it Mr ... Gonzalez stated in evidence that he did not agree with the unlawful arrest of members of the public in Chile, he did, over many years, maintain his association with organisations that were involved in this criminal conduct and did not take steps to disassociate himself from such organisations. For these reasons, the Tribunal is satisfied that Mr ... Gonzalez is not of good character."
In a preceding paragraph, (par 97), his Honour found that Mr Gonzalez was aware of rumours that the CNI and other groups were involved in illegal activities including torture and murder, both before and after he was assigned to the CNI.
The above extracts indicate that the AAT did not proceed on the basis that mere association was sufficient. The approach reflected in the reasons is inconsistent with an interpretation that association alone was sufficient to satisfy par (b). If association had been considered sufficient, then the mere fact of lengthy employment as bodyguard to General Pinochet would have sufficed. It would have been unnecessary to take into account matters which were referred to, such as the attitude of Mr Gonzalez to his position; the notoriety of the rumours; his knowledge of the allegations; his ability to leave his position as a bodyguard at any time and the fact that he took no steps to disassociate himself from the organisations.
For these reasons the submission that the AAT proceeded on the basis of "mere association" has not been made good. There was ample material before it on which it was open to find that Mr Gonzalez was aware of the criminal conduct referred to in the reasons and that he did not distance himself from that conduct.
The third ground of appeal relates to the "failure" of Mr Gonzalez to disassociate himself from the groups or organisations. This is referred to by the AAT in par 100 above. The submission is that this finding imposes a vague and oppressive requirement for moral "perfection", which goes beyond a reasonable requirement of good character.
At par 93 the AAT found:
"... Mr ... Gonzalez was accepted by the CNI as loyal and trustworthy and in remaining General Pinochet's body-guard until 1992, continued to be considered acceptable to the organisation with which he was associated. The Tribunal notes that Mr ... Gonzalez remained General Pinochet's bodyguard even after five of his colleagues were killed during the attempt to assassinate General Pinochet in 1987. He stated in 1988 that he feared he would be persecuted if he tried to leave the position, but at the hearing, gave evidence to the effect that he could have left his job as General Pinochet's bodyguard at any time."
This Court was taken to evidence, before the AAT, on this point where the following exchanges are recorded:
"Q It was open to you to leave the Presidential bodyguard at any time, was it not, Mr Sepulveda?
A Yes, that is so.
Q In fact, in 1988 you did formally resign?
A Yes, I want it to be clear that I resigned in 1988 from Carabineros, from the police force and I kept working for the army until 1992 ....
Q In 1988, the army offered you a contract to work as a security guard and you accepted?
A That is so.
....
Q I suggest that in 1987 you knew that you could leave the CNI at any time without fear of persecution of you or your family?
A I repeat what I said before, yes. I have fears because you always have fears. I was a very important person in this organisation because I knew all the movements, all the things that the General - I knew all the movements of General Pinochet so I have a lot of fears one way or another, be it from one side or the other side because you always feel you are right at the edge.
....
Q What administrative work did you do as the Presidential bodyguard in February of 1991?
A I repeat that I was employed as a civil employee involving administrative tasks but that was only the way they mentioned it, that was the name that was given to such position but my duty was to be the bodyguard of Mr Pinochet." (Emphasis added)
The assessment whether disassociation was a practical or realistic alternative, in the circumstances and on the material before it, was a matter in which the AAT had the important benefit of hearing and seeing (by videolink) Mr Gonzalez giving evidence. This is of particular importance where the question largely turns on evidence given by the applicant and the determination depends to a significant extent on matters of impression and credibility.
In view of the circumstances and evidence referred to above, it was open to the AAT to take the failure to disassociate into account and to give it such weight as it thought fit.
On a fair reading it does not appear that any abstract standard of moral "perfection" was applied. The AAT took into account matters bearing on the practical ability of Mr Gonzalez to disassociate himself from the persons and bodies in question and in so doing had particular regard to his statements and the impression which he made as a witness.
The fourth ground is that the AAT wrongly assumed that because of his association, Mr Gonzalez was of bad character and therefore destabilisation of the Australian community would result if he were to enter Australia.
The relevant findings of the AAT on this matter are set out in pars 68-71 of the reasons for decision. They are based on the principles set out in Irving and the evidence of Dr Ross. The Tribunal found that there was a Chilean community in Australia whose members came to Australia as refugees from the regime of General Pinochet and that it formed a segment of the Australian community. The evidence of Dr Ross was accepted that this segment of the Australian community, whose members suffered persecution, torture and the loss of family and friends under the regime, would be very disturbed by the entry into Australia of Mr Gonzalez. The AAT accepted that this segment of the community would find it abhorrent that the Australian Government would allow a person like Mr Gonzalez to enter Australia. A possible danger which Mr Gonzalez could have presented, in the view of the AAT, was the psychological distress and anger which members of that segment of the Chilean community may experience if any former member of the CNI were allowed to enter Australia, regardless of his or her position. (The AAT noted that there was no evidence that Mr Gonzalez was personally involved in detention or torture.) It went on to say that he may also represent a danger as a result of the negative effect his entry into Australia may have on the process of reconciliation between Chilean communities in Australia.
The AAT's conclusion on this point was that while it recognised the admission of Mr Gonzalez into Australia would disturb members of the Chilean community it was not satisfied that the danger he represented was of such a nature or degree as to warrant a finding that he came within the provisions of s 501(1)(b)(iv).
In par 116 of its reasons the AAT said:
"When considering the exercise of the discretion in s 501 of the Act, the Tribunal must also take into account the interests of the Australian community. The Tribunal has found that Mr .. Gonzalez is not of good character because of his past associations in Chile and it is therefore assumed that destabilisation of the Australian community would result if he were permitted to enter Australia." (Emphasis added)
The applicant submits that this connection is contrary to the AAT finding referred to above in relation to s 501(1)(b)(iv) that the danger Mr Gonzalez would represent is not of such a nature as to warrant the rejection of his application. This submission assumes that "destabilisation" is equivalent to "danger". It also assumes that the danger would be of a degree sufficient to involve disruptive activity or violence threatening harm to the community.
The statement needs to be read in the context of a submission as to the exercise of the Ministerial discretion in s 501 and in the light of the observation in par 55 of the reasons. In par 55 reference is made to Re Renata and Minister for Immigration and Ethnic Affairs (1994) 33 ALD 307, where it is stated that the structure and purpose of the legislation is to ensure that persons entering Australia on a visa or entry permit will not "destabilise" the Australian community.
There may well be circumstances in which a degree of destabilisation is the result of a person's entry into Australia. Yet the destabilisation may not be such as to give rise to a "danger" to the Australian community. The possibility of destabilisation may, however, be a relevant factor to take into account when considering the exercise of a Ministerial discretion.
In other words, there may be some destabilisation which falls short of the requirements of the "danger" required under s 501(1)(b)(iv), yet nevertheless, it may be both significant and relevant to take into account that degree of destabilisation when deciding whether to refuse a visa.
It is further submitted that to take into account a matter which has been found to be insufficient to justify an adverse finding in relation to sub-par (iv) is an erroneous exercise of discretion.
Simply because there is a finding that the consequences likely to be caused by a person's presence in Australia are not sufficient to satisfy the requirements of s 501 does not mean that the evidence is irrelevant or of no significant weight as a matter of discretion. The weight to be assigned to this consideration is a matter for the AAT.
Accordingly, it was open to his Honour to form the view that destabilisation was a relevant consideration. There was no error in this conclusion.
Ground 5 - the children
The AAT reasons canvass, in some detail, the position and circumstances of the children and in par 117 conclude that:
"Despite the considerable weight to be given to the interests of Alex and Rodrigo as members of the Australian community, their position is to a certain extent dependent on the actions of their parents. The Applicant chose to remain in Australia in the knowledge that it was unlikely that Mr .. Gonzalez would be permitted to come to Australia. While the applicant and the children would benefit from a favourable exercise of the discretion, the Tribunal is not satisfied that these interests are sufficient to outweigh the interests of the Australian community in refusing the visa." (Emphasis added)
The error said to be disclosed in this paragraph is that the AAT wrongly discounted the weight to be accorded to the interests of the children by reason of the fact that the parents had made a considered decision which led to their separation. The AAT approach was said to reflect a misunderstanding of the importance to be attached to the interests of the children: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273. It is said that the AAT approach effectively makes the children suffer for the conduct of their parents.
The AAT addressed the interests of the children and saw its function as requiring it to consider the effect of an adverse decision on the children and to weigh those consequences.
An affidavit sworn by Ricardo, the son of the applicant's former husband, was considered by the AAT. Ricardo came to Australia as an adult after he had completed his education in Chile. He is now about twenty-five years of age. The AAT found there was a close relationship between Ricardo and Mr Gonzalez but that there was no evidence to suggest that Ricardo's emotional well-being would be adversely affected by Mr Gonzalez' absence from Australia.
There then follows a consideration of the contacts between Mr Gonzalez, the applicant and the two younger children. Alex and Rodrigo, the two younger sons, are now about 16 and 14 respectively. They have lived in Australia since 1988. In par 115 the reasons concluded that:
"There is little evidence before the Tribunal, however, to suggest that the physical, mental or emotional well-being of either Alex or Rodrigo has been adversely affected by the absence of Mr ... Gonzalez other than in a relatively minimal way. From her short interview with Rodrigo, Ms Derricott [the consultant psychologist] noted only that he is affected by the consequences of his mother's physiological state. The Tribunal notes from the report of Ms Derricott that, at least in 1995, both Alex and Rodrigo were attending school. Both boys have at various times become involved in sporting activities. Rodrigo has built up a group of friends and states that he is a better English speaker than Spanish speaker."
On an appropriate reading of the AAT reasons and bearing in mind the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, we consider that the AAT's approach to the interests of the children has not been shown to have prevented due and proper consideration of those interests.
The comment by the AAT, that the interests of the children are to a certain extent dependent on the actions and choices of the parents, is an accurate reference to one of the circumstances that gave rise to the separation.
We are not persuaded that there is any substance in this submission.
Ground 6 - errors in considering s 501(2)(b)
The applicant submits that Purvis J erred in reopening and reconsidering the application of s 501(2)(b) to Mr Gonzalez and in permitting further evidence with respect to this ground. This submission is based on four considerations. These are:
• The effect of the remittal order
• Issue estoppel
• Functus officio
• Discretion
(a) The effect of the remittal by Sackville J
It first is necessary to determine the meaning and effect of the orders made by Sackville J. These orders were to set aside the decision of the AAT of 19 April 1995 and to remit the matter back to the AAT to be dealt with according to law.
On 12 July 1994, the applicant applied to the AAT for review of the decision to refuse an entry visa to Mr Gonzalez. Although the application did not say so, it was intended to review the decision insofar as it was based on s 501 of the Act. A Departmental file note recorded that:
"If this case goes to an appeal, the reviewing officer should also note that this applicant, due to his former CNI association, fails to meet the character requirements as set in the Migration Act 1958, section 180A(1)(b)(iii) and (iv), also (2)(b)"
As noted earlier s 180A, is for present purposes, in the same terms as s 501.
Mr McMahon, in his determination of 19 April 1995, decided that the evidence in relation to s 501(2)(a) (the conduct ground) was too tenuous to satisfy him that Mr Gonzalez was not of good character. He also determined that s 501(2)(b) (the association ground) had not been satisfied. However, he found that the "incite discord" ground in s 501(1)(b)(iii) had been made out. Accordingly, he affirmed the decision under review.
An appeal from that decision was taken to this Court. The only question of law raised was that the AAT erred in the above finding as to the incite discord ground. The notice of appeal sought an order that the AAT decision be set aside and that the matter be remitted to the AAT to be dealt with according to law.
When the matter came on for hearing before Sackville J, the Minister conceded that the AAT had erred and that the decision must be set aside. The only live issue before his Honour therefore was whether the matter should be remitted with a direction that s 501(2) had no application to Mr Gonzalez. He refused to make a direction to this effect.
Section 44 of the AAT Act provides for an appeal on a question of law from a decision of the AAT. The only question of law raised in the Notice of Appeal to Sackville J related to the incite discord ground in s 501. There was no Notice of Contention or challenge to the findings of Mr McMahon as to s 501(2). No appeal was taken from his Honour's decision.
This Court on an appeal from the AAT may make such order as it thinks appropriate by reason of its decision: s 44. The expression "by reason of its decision" delimits the general power to make such determination as it thinks appropriate. That is, orders can only be made if they are appropriate by reason of the decision on the point of law: Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 454-5; Director-General of Social Services and Health v Hangan (1982) 70 FLR 212 at 223. The extent of this power of remittal is further spelt out by s 44(5) which empowers an order setting aside the AAT decision and remitting the case to be heard and determined with, or without, further evidence in accordance with the Court's directions. The provisions of subs (5) are not to be taken as limiting the general power in s 44(4).
No direction was made, by his Honour, as to the hearing of further evidence. It is apparent from the judgment that his Honour was aware of the dissatisfaction of Mr McMahon with the state of the evidence before him and that his Honour contemplated, at least, the possibility of further evidence being adduced on remittal.
The order setting aside the AAT decision meant that there was no operative AAT decision and that a determination had to be made by the AAT. The remittal order required "the matter" to be dealt with in accordance with law. The reference to "law" is of course a reference to the judgment of his Honour together with the relevant statutory and common law.
The question which arises before this Court is whether the AAT was restricted by the order to reconsideration solely on the incitement ground. The meaning and effect of the order is open to differing interpretations. When considering the interpretation of an order where the meaning is not clear, it is permissible to take into account the reasons for judgment: Repatriation Commission v Nation (1995) 57 FCR 25 at 34.
If Sackville J had intended to limit the introduction of further evidence it would have been a simple matter for him to have specifically so directed, as provided for in s 44(4) of the AAT Act. His Honour did not do so and he expressly declined to give a general direction that the AAT should not receive further evidence.
Accordingly, the intention and effect of the order, in our view, was that the whole matter was remitted to the AAT, without limitation as to the presentation of further evidence or as to the scope of the matter to be dealt with.
One other aspect must be mentioned. It was argued that since there was no challenge to the decision of Mr McMahon that s 501(2) did not apply to Mr Gonzales, and since no notice of contention was filed on behalf of the Minister claiming that the decision was erroneous in that respect, the order made by Sackville J should not be taken as extending to any question concerning s 501(2). It follows from what we have said, however, that the order of Sackville J, which in its terms was unrestricted in its application to "the decision of the AAT made on 19 April 1995" does not have the limited operation contended for.
(b) Issue estoppel
The applicant submitted that even if the case was remitted to the AAT without any limitation as to the scope of the matter to be dealt with, nevertheless the previous determination by the AAT that s 501(2) did not apply to Mr Gonzales created an issue estoppel with the consequence that Purvis J was in error in revisiting that issue and had been bound to determine it in the applicant's favour.
Counsel for the applicant referred to many authorities bearing on whether issue estoppel applies to decisions of the AAT including Blackman v Commissioner of Taxation (1993) 43 FCR 449; Commonwealth of Australia v Sciacca (1988) 17 FCR 476; Midland Metals Overseas Limited v Comptroller - General of Customs (1991) 30 FCR 87; Wiest v Director of Public Prosecutions (1988) 23 FCR 472; The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; Comcare Australia v Grimes (1994) 121 ALR 485. The authorities are reviewed in learned articles by Mr Alan Hall, Res Judicata and the Administrative Appeals Tribunal (1994-5) 2 A J Admin L 22 and by Mr Timothy McEvoy in Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg into a Round Hole? (1996) 4 A J Admin L 37. Counsel then submitted that we should conclude that a decision of the AAT can create an issue estoppel and that the determination that s 501(2) did not apply to Mr Gonzales had done so in the present case. The short answer to this submission is that our conclusion that Sackville J's order related to the whole matter, so that the first decision of the AAT was set aside in its entirety, means that nothing remained upon which, on any view, an issue estoppel could be founded.
(c) Functus officio
A further submission was that the AAT had become functus officio in relation to the s 501(2) questions, since they had been determined by Mr McMahon and had not been the subject of challenge before Sackville J. It follows, however, from what we have said about the effect of the order made by Sackville J that there is no substance in this submission. The matter was remitted to the AAT without any limitation on the Tribunal's power to hear further evidence or otherwise to deal with the matter in its entirety. A new decision had to be made.
(d) Discretion
The applicant then submitted that Purvis J had erred in law in another respect. It was submitted that Purvis J had incorrectly construed the orders made by Sackville J as compelling a "re-hearing" of the entire matter whereas, it was said, Purvis J should have proceeded on the footing that he retained all the discretions that the AAT has when he proceeded with the matter remitted to him "to be dealt with according to law". They included, it was submitted, a discretion whether or not to allow the reopening of the issue already determined in the applicant's favour in respect of s 501(2) (and not the subject of challenge in the proceedings before Sackville J) and also a discretion to revisit the s 501(2) issue but without allowing further evidence to be adduced.
The Full Court in Blackman v Commissioner of Taxation (1993) 43 FCR 449 considered the obligation of the AAT to find facts where there had been a successful appeal to the Federal Court. The Court decided that where a decision is set aside and the case is remitted to be reconsidered the AAT retains its responsibility to find the facts but that it has a wide discretion as to how it should proceed. At 455-456, Gray J (with whom Keely J agreed) said:
"If, as is usually the case, the remitted matter is heard and decided by a Tribunal differently constituted from the Tribunal whose decision was the subject of the successful appeal, the differently constituted Tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the Tribunal may decide to act on the findings of fact made by the earlier Tribunal, or some of them. It may decide, as the learned senior member did in the present case, to rely upon evidence which was before the earlier Tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the Tribunal. The order of the Court may limit the ambit of the issues with which the Tribunal is to deal upon a case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the Tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the Tribunal which ultimately decides the case to determine for itself the facts." (Emphasis added)
These observations are pertinent to the circumstances of the present case.
It is apparent that Purvis J, at par 59 of his reasons, understood the orders made by Sackville J as requiring a "rehearing" of the application for review of the Minister's decision lodged in July 1994. In treating the terms of remittal by Sackville J as necessitating a "rehearing", as opposed to a "reconsideration", Purvis J, in our view, erred in law. The order of Sackville J left to the discretion of the AAT the question whether it should allow a "rehearing", and to what extent. It did not compel a rehearing.
In our view, it was open to Purvis J, if he thought it appropriate in all the circumstances, to act on the evidence put before the Tribunal on the previous occasion in relation to the s 501(2) issue and not to permit further evidence to be adduced on that issue. Whether or not that course was adopted would, of course, have involved a careful examination of a range of competing considerations. But in our view, Purvis J acted on the basis that this course was not open to him at all and in so doing erred in law.
We have reached this conclusion with an appreciation that administrative decisions must be approached in a practical and realistic manner with attention directed to the substance of the matter and not undertaking an unduly technical scrutiny: (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), but we consider that the references in par 59 to "rehearing" and "reheard" demonstrate that Purvis J wrongly considered that he was bound to conduct a full rehearing, with further evidence, when the order, properly construed, did not require this.
This conclusion is sufficient to decide the appeal in the applicant's favour but it is desirable, in the circumstances, that we should express our conclusions as to whether it was open to Purvis J to decide not to allow the reopening of the s 501(2) issue already determined in the applicant's favour. In other words, was it open to Purvis J not only to conclude, if he thought it appropriate that there should be no further evidence on that point but also that the prior AAT decision should be regarded as determinative of that particular aspect of the matter remitted to him for determination?
In approaching this question it is important to bear in mind that the function of the AAT is an administrative one. Within the framework of the relevant enactments and the general principles of administrative law, the Tribunal is concerned to determine whether the decision under review "was the correct or preferable one on the material before the Tribunal": see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.
To enable the Tribunal to perform its functions, the Tribunal has a very wide discretion as to the procedure it should adopt and as to the manner in which it should inform itself about factual matters. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, O'Connor J, the President of the Tribunal, and Mr Barbour observed (at 526):
"s 33 of the Administrative Appeals Tribunal Act provides the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself."
The procedural flexibility that the AAT Act gives to the Tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated (see Comcare Australia v Grimes (1994) 121 ALR 485 at 592 per Wilcox J and Re Quinn and Australian Postal Corporation at 525 - 526), and it has been suggested that s 33 provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it. The point is made by McEvoy (4 AJAL at 52) by reference to the decision of Senior Member Dwyer and Members McLean and Shanahan in Matusko and Australian Postal Corporation (1994) 21 AAR 9 esp at 20-21 where the Tribunal concluded that although it should not generally allow relitigation of issues already decided, it could use its flexible procedures to allow a second claim in respect of an injury that already had been subject of a claim.
In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.
In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of Mr McMahon as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour's reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law.
The appeal should be allowed, the decision of the AAT should be set aside and the matter remitted to the Tribunal for determination in accordance with law. The respondent should pay the costs of the applicant.
I certify that this and the preceding thirty-one (31) pages are a true copy of the Reasons for Judgment herein of the Court