Administrative Decisions (Judicial Review) Act 1977: s. 3(1), (5); s. 5(1)(e), (2)(f); s. 6(1)(e), (2)(f).

Migration Act 1958: s. 17, s. 23(1)(a), s. 24, s. 26, s. 181.

Migration Regulations 1989: Regulations 2, 4, 41 and 143, Schedule 1 item 5, Schedule 2 item 48.

The appeal from Order 3 of the orders made by Olney J. on 11 November 1991 be dismissed.

The applications for tourist visas by Mitchell Kenneth Riley, John Peter Bryce, Robert Charles Crouch and Richard Edward Phillips be referred to the appellant for reconsideration according to law.

The orders made by Olney J. on 11 November 1991 except order 3 be set aside.

There be no order for costs of the proceedings at first instance or of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from the judgment of a Judge of the Court on a review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of certain decisions and conduct of the appellant, the Minister for Immigration, Local Government and Ethnic Affairs, in respect of applications for visas to enter Australia by members of "Hell's Angels" motorcycle clubs affiliated with the respondent, Hell's Angels Motorcycle Club Incorporated, to attend an international motor cycle gathering, known as a "World Run", in South Australia. (The respondent and its affiliated clubs are hereafter collectively referred to as "HAMC"). The "World Run" had originally been scheduled to be held in late October and is now proposed to be held later this month. Twenty-three "non-resident", "non-citizen" members or affiliates of HAMC applied for tourist visas (which are the appropriate entry visas) for the purpose of attending and taking part in the "World Run".

2. In an amended application filed on 28 October 1991 HAMC sought to have the following alleged conduct of the appellant reviewed:

1. The failure of the appellant to make any decision or give proper

consideration on the merits to each application for a visa to

enable the applicants for visas to attend the 1991 "World Run" in

South Australia.

2. The failure of the appellant to make a decision expeditiously in

3. The failure of the appellant to make or delay in making decisions

in respect of each application "so as to effectively prevent" each

application from being considered on its merits and "so as to

prevent" each applicant from being able to attend the planned

"World Run".

4. The taking into account by the appellant of information

purportedly received from law enforcement authorities in Australia

of the nature set out in a letter which it is convenient to

describe as "the Joseph letter". The Joseph letter is a letter

written by Mr Joseph, Assistant Secretary of the relevant branch

of the Department, to the applicants for visas in terms which are

important to the case and are set out in full as an appendix to

these reasons.

3. Also in the amended application the respondent sought review of the following decisions of the appellant:

1. That each applicant for a visa be required to answer or supply

material and reasons why the appellant should not determine that

he is a person likely to become involved in activities disruptive

to or violence threatening harm to the Australian community or a

group within the Australian community on the basis of material set

out in the Joseph letter.

2. That each applicant for a visa be required to answer material set

3. That the appellant is entitled to have regard to matters of the

4. That entry visas be refused to four of the applicants for visas:

Mitchell Kenneth Riley, John Peter Bryce, Robert Charles Crouch

and Richard Edward Phillips (the remaining nineteen applications

for visas have not yet been considered by the appellant).

4. The decisions and conduct of the appellant were attacked by the respondent on various grounds to which we shall refer later.

5. The standing of the respondent to apply for review and to seek the relief sought was not challenged before his Honour and therefore not the subject of any challenge before this Court on appeal.

6. This is the second proceeding instituted in this Court relating to the proposed entry into Australia of members of HAMC to attend the 1991 "World Run" in South Australia.

7. In August 1991 proceedings were commenced in the Court (V G223 of 1991) to review a decision of the appellant refusing the issue of temporary entry visas to "non-citizen" members of HAMC to attend the Hell's Angels' planned 1991 "World Run". These earlier proceedings were dismissed by consent pursuant to terms of settlement dated 23 August 1991 which were in the following terms:

"1. Every Applicant for a visa to enter Australia who is affiliated

with the organisation known as 'Hell's Angels' is to have such

application considered individually upon its merits according to

law.

2. The Applicant is to provide to the Respondent's Authorised

Officer Emil Joseph details of name and date of application,

cancellation or refusal of persons who have -

(a) previously held a visa which has

been cancelled or,

(b) been refused a visa, and such persons shall be reconsidered

according to law.

3. The Applicant herein will supply details of persons who make

application for a visa and the applications and prescribed fee

for such a visa to the Respondent's Authorised Officer, Emil

Joseph, Assistant Secretary, Visitors and Temporary Entry

Branch, Benjamin Offices, Chan Street, Belconnen, ACT. and

such application will be taken as having complied with the

regulations and procedures of the Respondent in respect of the

making of such applications.

4. Applicants will be notified of the approval or otherwise of

their application for a visa and visas to be issued will be so

issued at an appropriate Consular Office.

5. That the application and Notice of Motion herein be dismissed

and that the Respondent pay the Applicant's cost of proceedings

herein."

8. On 29 August 1991 the Department wrote to the solicitor for the respondent referring to administrative arrangements to handle the applications for visas from members of HAMC in the following terms:

"I am writing to follow up the telephone conversation with Mr

Phillips and yourself this afternoon regarding administrative

arrangements for the handling of visa applications from members of

the Hells Angels Club.

Consistent with the court orders, arrangements have been put in place

for applications from Hells Angels Club members seeking to visit

Australia to be accepted at our overseas missions, on the

understanding that processing will take place in Canberra.

Parallel to the lodgement of applications, the Hells Angels Club in

Victoria will provide my office details of applications lodged by

members and the post at which those applications have been lodged.

Should it be necessary for the Department to seek further information

from any particular applicant, this will be done direct to the

applicant or from the Hells Angels Club in Melbourne.

As indicated in our discussions, our objective with these

arrangements is to provide the most convenient and expeditious means

for receipt of application, payment of fees, and the preparation of

all relevant information for consideration by the Minister.

We also discussed the situation in relation to New Zealand citizens

intending to visit Australia. As you know, New Zealand citizens are

exempt from our visa requirements but are still subject to scrutiny

at the point of entry to Australia. To avoid the possibility of

inconvenience and embarrassment to any members of the Hells Angels

Club travelling from New Zealand, it is for your consideration to

advise them that in the circumstances, the acquisition of a visa may

be in their best interests. This should not in any way be

interpreted as our insisting that New Zealand citizens should apply

for a visa but rather a means of facilitating their travel to

Australia.

We also discussed the situation pertaining to those members of the

Hells Angels Club who had received visas but where those visas were

subsequently cancelled. I confirm our advice that such persons

should lodge new applications for consideration under the agreed

arrangements."

9. On 10 September 1991 the Department wrote to the Director of the Australian Bureau of Criminal Intelligence ("ABCI") asking for any submission that it might wish to put to the appellant in respect of the entry of members of HAMC for the "World Run".

10. On 12 September Mr Joseph wrote to the solicitor for HAMC in these terms:

"I am writing concerning the Consent Orders entered into on 23 August

1991 in the matter of the Hell's Angels Motorcycle Club and the

Minister for Immigration, Local Government and Ethnic Affairs and our

subsequent correspondence of 29 August 1991.

In those agreements the Hell's Angels Motorcycle Club undertook to

provide my office with details of applications lodged by members and

the posts at which those applications will be lodged.

A number of overseas posts have received applications to travel to

Australia from persons identifying themselves as members of the

Hell's Angels Motorcycle Club. Their applications have been referred

to me for consideration.

To date, however, I have received advice from the Hell's Angels

Motorcycle Club of Melbourne in respect of only two of these

applications.

In compliance with the Consent Orders dated 23 August 1991 and in the

spirit of our correspondence subsequently I ask that the Hell's

Angels Motorcycle Club provide details of applications lodged by

members and the posts at which those applications have been lodged,

within 10 working days of the date of this letter.

Should the Club not provide these details I will consider that the

applications so far received and not identified by the Club, as not

being covered by the Consent Orders and subsequent agreements, and

will deal with them separately.

I look forward to your early response."

11. The solicitor for HAMC replied by facsimile transmission the same day in which he said, amongst other things:

"Might it not also assist if you could provide the names of the

persons from whom you have received applications and we could confirm

or indicate to the contrary that they are members of the Hells Angels

MC Club.

Our previous dealings with Mr Muir have been conducted in an (sic)

spirit of co-operation which we have appreciated and we are concerned

that you seem to foreshadow the possibility of this co-operation

breaking down. Mr Phillips and his members have made every effort to

obtain the necessary information and will continue to do so. We

would be grateful if in all the circumstances the problem might be

approached in a way so that we might advise or confirm information

already received by you so that the ultimate intention of the

settlement, the fast-tracking of applications by HA members might

proceed."

12. Mr Joseph replied to that letter on 20 September stating that the Department desired to comply fully with the terms of the consent order of 23 August and stressing that he was anxious that the Department's obligations under the consent orders be met and that he wished to avoid any future disputation.

13. On 24 September the Director of the ABCI provided what the evidence describes as a "formal, albeit general response" to Mr Joseph's request of 10 September.

14. By facsimile transmission dated 30 September 1991 the solicitor for HAMC wrote to Mr Joseph asserting that at the time of the settlement on 23 August 1991:

"Counsel for the Minister proposed the system of processing

applications by Hells Angels members, in part, on the basis that this

would 'fast-track' the processing of applications. Mr Muir on

behalf of the Department subsequently indicated it was intended that

the applications be processed speedily so as to avoid further dispute

between the parties.

We understand that a normal application for a temporary permit is

processed within three weeks. We understood that by fast-tracking it

was intended that applications by Hells Angels members would be

processed in less than three weeks ..."

Mr Joseph replied to that letter by a letter dated 1 October in which he disclaimed any agreement to "fast-track" the processing of visa applications by members of the HAMC and said that counsel for the appellant confirmed that there was no such agreement. He said:

"The Consent Orders require the processing to be made according to

law. We are pursuing those processes.

You will appreciate that the Consent Orders require the Minister's

personal consideration, and, at the end of the day, the timing of the

decision will depend on the availability of the Minister. ... "

15. On 2 October it was decided by the relevant officers of the Department that, given the time delay involved in obtaining the results of criminal record checks from ABCI, it would be in the interests of all parties to seek comments from the applicants for visas on the general matters raised by ABCI.

16. On 4 October Mr Joseph wrote to the solicitor for the respondent stating that he had so far been notified of the details of six of its members who had applied for visas and made further requests for co-operation in completing the processes contemplated by the consent Orders of August and again invited the respondent to provide him with details of persons affiliated with HAMC who wished to visit Australia in connection with the "World Run". The letter proceeded:

"I again invite your client to provide me with details of persons

affiliated with the Hell's Angels Club including New Zealand

citizens, who wish to visit Australia in connection with the 'world

run'. I request that your client do so by close of business on

Friday 11 October 1991 to allow processes to be completed,

submissions to be prepared, decisions taken and action taken to

implement those decisions in time for the 'world run'.

I underline the need for your client to give me sufficient notice of

such affiliated members. Having regard to the issues raised by the

prospective visit, the processes of examination and consideration

cannot be reasonably compressed.

If your client cannot meet the deadline of 11 October 1991, I request

that you inform me now with the reasons why. I am prepared to

consider a reasoned request by your client for a later date for the

deadline, but must foreshadow delays in the finalisation of the

processes of consideration and decision.

At the end of the deadline, I will take it that persons notified by

your client as affiliated members are, exclusively, the persons

covered by the Consent Orders, that is, only the persons whose

details are provided to me by your client by the deadline will have

the benefit of the Consent Orders."

17. On 8 October 1991 the solicitor for the respondent replied to the previous letter by a letter which included these paragraphs:

"1. Is it the case that the applications already directed to your

office have not yet been considered for grant or refusal of

visa?

2. Is it proposed that no application by Hells Angels members will

be decided upon until after 11 October.

3. If this is so how long after 11 October do you envisage a

decision will actually be made. In other words by what

proposed date will applicants be advised of the decision in

relation to their applications.

4. Paragraph 9 of your letter says, 'Having regard to the issues

raised by the prospective visit. What are the issues you refer

to?

5. Our client can do no more than advise and request that

prospective applicants for visas inform them of the lodgement

of applications. In cases where they are not informed before

October 11, what is proposed? Will applications after October

11 be rejected, or not considered?, (sic) can you please

clarify the matters your letter refers to but does not

explain?. (sic)

6. The final paragraph of your letter refers to the 'benefit of

the Consent Orders'. What is the 'benefit' you refer to.

7. Finally in reference to your previous letter of October 1, we

refer you to Mr Muirs letter of 29 August. Therein he says, at

paragraph 5, 'As indicated in our discussions, our objective

with these arrangements is to provide the most convenient and

expeditious means for receipt of application, payment of fees

...' Can you comment on the seeming inconsistency between these

two letters."

18. Mr Joseph replied to this letter from the solicitor for HAMC on 11 October 1991 in terms which included the following:

"1. Preparation of submissions to the Minister with respect to

consideration of grant or refusal of each of the applications

received to date is underway.

2. Certain matters will be put to applicants in order that they

have an opportunity to address all issues which may arise for the

Minister's consideration and a decision on each of the applications

obviously will have to await the applicant's response to those

matters. Clearly there can be no decision on individual applications

until then.

3. The length of time after the 11 October that it will take

before applications are decided is dependent on the time it takes

individual applicants to respond to the matters that this Department

will be putting to them.

4. The issues raised by the prospective visit are broadly speaking

whether each applicant satisfies the prescribed criteria for the

class of visa sought, which criteria include:

a) whether the applicant is a person likely to become involved

in activities disruptive to, or violence threatening harm to, the

Australian community or a group within the Australian community;

b) whether the applicant satisfies health and character

requirements; and

c) whether the applicant intends to make a genuine visit to

Australia and has adequate funds for his or her support during the

period of the visit.

5. As you will be aware, processing the applications in accordance

with the consent orders necessarily takes time. Your client has

indicated that the World Run is to occur in late October or early

November this year, and for the applications to be finalised in

sufficient time they should be lodged by 11 October 1991. Where an

application is notified to the Department in accordance with the

consent orders after this date it may not be possible to complete the

required processes before the dates on which the applicant wishes to

travel to Australia. It is in order to avoid possible inconvenience

to applicants' travel arrangements that we are asking your client to

finalize notification of applications and to urge intending visitors

to the 'World Run' to lodge their applications by 11 October.

6. The 'benefit' that you refer to, is that a decision would be

made on each application by the Minister personally and with the

fullest regard to the requirements of procedural fairness.

7. I see no inconsistency between my letter of 4 October and Mr

Muir's of 29 August. Applications will be processed in the most

expeditious way having regard to the considerations of the prescribed

criteria that must be satisfied prior to the grant of a visa. In

particular, the issues referred to in my answers to Question 4, must

be canvassed to enable the finalization of each application notified

in accordance with the consent orders."

19. Also on 11 October the solicitor for the respondent sent a facsimile transmission to Mr Joseph on the letterhead of the respondent which read:

"MORE NAMES AND POSTS]

ALAN JOSEPH HOGAN - NEW YORK

ALAN JAMES HOGAN - NEW YORK

CARL BONO - NEW YORK

THOMAS BROWN - NEW YORK

HARLAN L. BROWER - SAN FRANCISCO"

20. On 10 October Mr Joseph sent the first of the Joseph letters to eighteen applicants or prospective applicants for visas who were members of HAMC. It was not sent to five of them, namely, Mr Hogan Snr, Mr Hogan Jnr (an eleven year old boy who is the son of Mr Hogan Snr), Mr Riley, Mr Bossen and Mr Buono.

21. On 16 October 1991 by facsimile transmission the solicitor for the respondent sent on the letterhead of the respondent the following information:

"MORE VISA APPLICANTS

MIKE KEAN - VANCOUVER

JOHN BRYCE - "

MITCH RILEY - "

ROB CROUCH - " "

22. On 18 October 1991 the respondent filed the application which commenced the present proceeding.

23. By 23 October 1991 HAMC had notified the Department of twenty-two persons whom it believed to have lodged or to intend to lodge applications for visas to attend the "World Run"; but in fact only fifteen of those persons had by then applied for visas, all of which were then receiving attention from the Department.

24. There was a second Joseph letter sent to the applicants who had previous convictions recorded against them. This letter was sent on 29 October 1991 when Mr Joseph wrote to the relevant individuals informing them that the Department had information relating to their previous criminal records and asking for a response within twenty-eight days (this is referred to as the "second Joseph letter").

25. On 6 November 1991 the appellant decided to refuse the applications for visas of four of the applicants for visas, namely, Messrs. Bryce, Riley, Crouch and Phillips.

26. The learned primary Judge made certain findings of which the principal findings relevant to the appeal are as follows:

. In respect of each of the nineteen applications for visas which

have still not been determined, there has been unreasonable delay

in making decisions.

. Since the settlement in August 1991 of the earlier proceeding

"officers of the department whose function it is

to process the applications to a stage where

they can be submitted to the Minister for

consideration and decision have embarked upon a

planned course of conduct designed for no

purpose other than to delay the decision making

process until it would be too late for an

applicant to attend the World Run."

His Honour then mentioned eight aspects of the evidence which he

considered supported this conclusion. We shall state and consider

later each of these eight aspects.

. The whole procedure adopted to deal with the applications for

visas was unreasonable and the appellant failed to deal with the

applications within a short period after they had been received in

Canberra, which has occasioned an unreasonable delay in making the

necessary decisions.

. The appellant's failure to make decisions in the case of the

nineteen applications for visas should be reviewed. His Honour

said that for the purpose of doing justice he proposed to direct

that the appellant by 5.00 pm Tuesday 12 November 1991 (the day

following the giving of judgment by his Honour), make decisions in

response to the nineteen applications.

. The contents of the Joseph letter should not be taken into account

by the appellant in considering the applications for visas because

to do so would be an improper exercise of the power conferred upon

the appellant by the Migration Act 1958 ("the Migration Act") in

that it would involve taking irrelevant considerations into

account in the exercise of the power and an exercise of a

discretionary power in accordance with a "rule or policy" without

regard to the merits of the particular case, his Honour's view

thus reflecting s. 6(1)(e) and s. 6(2)(a) and (f) of the ADJR Act.

. The contents of the Joseph letter could not be relied upon because

they repeated a series of "bald assertions" about the respondent

and Hell's Angels Motorcycle Clubs throughout the world without

evidence to establish the assertions and in some cases made

assertions that were in his Honour's view "fanciful, and ...

lacking in any factual basis".

"1. That by 5 p.m. on Tuesday, 12 November 1991 the (appellant)

consider and make decisions pursuant to the Migration Act 1958

in respect to the visa applications of the persons named in the

schedule to this order.

2. That in considering each of the visa applications referred to

in order 1 the (appellant) is directed not to take into

consideration the contents of the letter referred to in these

proceedings as the Joseph letter or any like material nor the

fact that each (respondent) is a member or an associate of the

Hell's Angels Motorcycle Club.

3. That the several decisions made by the (appellant) on 6

November 1991 refusing applications for entry visas made by

Mitchell Kenneth Riley, John Peter Bryce, Robert Charles Crouch

and Richard Edward Phillips be and are hereby set aside.

4. That each of the applications for entry visa referred to in

order 3 is hereby referred to the (appellant) for

reconsideration according to law and the (appellant) is

directed to reconsider the same and to make decisions in

relation thereto pursuant to the Migration Act 1958 by 5 p.m.

on Tuesday, 12 November 1991.

5. That in reconsidering each of the applications referred to in

order 3 the (appellant) is directed not to take into

consideration the contents of the letter referred to in these

proceedings as the Joseph letter or any like material nor the

fact that each (respondent) is a member or associate of the

Hell's Angels Motorcycle Club.

6. That the costs of these proceedings including any reserved

costs be taxed and paid by the (appellant)."

28. This case raises various questions, which may be considered in two separate categories. The first category involves questions of law as to whether there is reviewable subject matter under the ADJR Act; and three questions arise in this context. First, apart from the four decisions refusing visas to four applicants (Riley, Bryce, Crouch and Phillips), were any other "decisions" made by the appellant within the meaning of the ADJR Act or did the appellant merely decide matters which constituted a series of steps towards the making of ultimate decisions, having in mind the distinction drawn between the two by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321? Second, were there any "proposed" decisions made by the appellant (again leaving aside the decisions in the case of the four applicants Riley etc.), if in fact the appellant had not reached the stage of making actual decisions? Third, was there reviewable "conduct" by the appellant within the meaning of s. 6 of the ADJR Act? In one sense this first category of questions is discrete from the second to which we shall refer in a moment; but whatever may be the answer to these questions it is, we think, essential that all questions be addressed in this case.

29. The second category of conduct and decisions turns upon the facts of the case and the construction of the Migration Regulations 1989 ("the Regulations"). Two basic areas of fact that arise for consideration concern the Joseph letter (we put aside the second Joseph letter because little turns on it) and the question of whether the appellant has been dealing with the applications for visas so slowly or in such a way as to constitute unreasonable delay. Before turning to these questions it is necessary to refer to the relevant statutory provisions.

30. The relevant statutory provisions are the Migration Act and the Regulations. Section 17(1) of the Migration Act provides that the holder of an entry visa may enter Australia after disembarkation at a proclaimed airport. Except as provided by s. 17(1) (sub-section (2) is an exception but it is not relevant), a visa, whenever granted, does not entitle the holder of the visa to enter Australia or to be granted an entry permit (sub-section (3)). The Minister may by instrument in writing determine that s. 17 applies to visas granted in a specified manner and form (sub-section (4)).

31. Section 23(1)(a) provides that the Regulations may make provision in relation to the granting and refusal of visas with respect to travel to Australia including the granting of visas subject to conditions or subject to limitation as to the time the holder is authorised to remain in Australia.

32. Section 24(1) provides that s. 24 applies where and only where a person applies for a visa of a particular class in the approved form and in accordance with the Regulations and any fee payable in respect of the application is paid. Section 24(2) provides that, unless s. 24 applies, the Minister is not required to consider an application at all and shall not in any circumstances grant a visa. This is relevant, in particular, to the significance of the terms of settlement reached in August this year because the appellant, when considering any fresh applications by members of HAMC for entry to Australia, cannot override the terms of the statute by agreement and is bound not to grant visas unless and until the applicants for them have made their applications in the approved form and in accordance with the Regulations and paid the requisite fee.

33. Section 26 empowers the Minister at any time in his absolute discretion to cancel a valid visa. Section 181 empowers the Governor-General to make regulations.

34. Turning to the Regulations, a person is entitled to be granted a visa of a class specified in column 2 of an item in Schedule 2 if the person satisfies the prescribed criteria in relation to that class of visa (reg. 41(1)). Schedule 1 item 5 (made applicable by regulation 41(4)) provides that the applicant must meet relevant "public interest criteria" if he seeks a visa of a particular class. As the relevant class of visa here is a tourist visa (column 1, item number 48 of Schedule 2), then the relevant criteria that must be met include criteria D, namely, "public interest criteria". Regulation 143 empowers the Minister to grant a visa to an applicant who fails to satisfy "public interest criteria" only because the applicant is to be taken not to be of good character, if the Minister is satisfied of certain matters to which the regulation is directed.

35. In short, it follows that in the present case the applicants for tourist visas had to meet the relevant "public interest criteria"; and it is common ground that such criteria are those specified in regulation 2, namely, and relevantly: (a) being "of good character"; and (c) "is not determined by the Minister acting personally to be likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community".

36. As mentioned earlier, the amended application seeks review of four alleged decisions of the appellant and four elements of what is asserted to be reviewable conduct.

37. The fourth decision is the decision to refuse entry visas to Messrs Bryce, Riley, Crouch and Phillips. The appellant does not suggest that this decision is not a reviewable decision within the meaning of the ADJR Act, but he does assert that the other three decisions are not reviewable decisions within the meaning of that legislation. As mentioned earlier those three decisions are:

1. That each applicant for a visa be required to answer or supply

material and reasons why the appellant should not determine that

he is a person likely to become involved in activities disruptive

to or violence threatening harm to the Australian community or a

group within the Australian community on the basis of material set

out in the Joseph letter.

2. That each applicant for a visa be required to answer material set

3. That the appellant is entitled to have regard to matters of the

38. The primary Judge found that these three decisions were decisions capable of review under the ADJR Act.

39. In Bond's Case the High Court decided that a reviewable decision for the purposes of the ADJR Act is generally, though not always, a decision required by or authorised by a statute which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A decision does not embrace procedural determinations. As Mason C.J. observed at 337:

"If 'decision' were to embrace procedural determinations, then there

would be little scope for review of 'conduct', a concept which

appears to be essentially procedural in character."

A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision will not ordinarily be a reviewable decision unless the statute provides for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. An essential element of a reviewable decision is that it be a substantive rather than procedural determination. 'Conduct' points to action taken rather than a decision made for the purpose of making a reviewable decision. It looks to the way in which the proceedings have been conducted rather than to decisions made along the way with a view to the making of a final determination. Conduct is essentially procedural and not substantive in character (see in particular Mason C.J. at 335-339 and 341-343). Brennan J. and Deane J. agreed with Mason C.J. at 365 and 369 respectively.

40. The question of what constitutes reviewable conduct was also discussed in Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, especially by Mason C.J. at 386 and Gaudron J. at 411-412. See also Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 72 and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 387; (1991) 102 ALR 367 at 370, 373-5.

41. In our opinion the three alleged decisions described in the current application are not reviewable decisions within the meaning of the principles expounded in Bond's Case. They are essentially no more than a series of decisions made along the way towards the making of an ultimate decision; they are steps along a path which may lead ultimately to reviewable decisions.

42. As mentioned earlier, the amended application filed by the respondent sought review of the following conduct of the appellant:

1. The failure of the appellant to make any decision or give proper

consideration on the merits to each application for a visa to

enable the applicants for visas to attend the 1990 "World Run" in

South Australia.

2. The failure of the appellant to make a decision expeditiously in

3. The failure of the appellant to make, or delay in making,

decisions in respect of each application "so as to effectively

prevent" each application from being considered on its merits and

"so as to prevent" each applicant from being able to attend the

planned "World Run".

4. The taking into account by the appellant of information

purportedly received from law enforcement authorities in Australia

of the nature set out in the Joseph letter.

43. The primary Judge found that this was conduct capable of review under s. 6 of the Judicial Review Act and counsel for the appellant challenged this finding on appeal.

44. The conduct reviewable under the ADJR Act is conduct engaged in or proposed to be engaged in by a person for the purpose of making a decision to which that Act applies. Section 3(5) of the ADJR Act defines "conduct engaged in for the purpose of making a decision" to include "the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation".

45. All four elements of the alleged reviewable conduct if made out constitute reviewable conduct under the ADJR Act. They relate essentially to the way in which the Department is gathering material with a view to presenting it to the appellant for his ultimate decision, and they relate especially to the procedures adopted by the Department to that end. They are procedural in character. Elements 1 and 2 might more appropriately have been characterised as particulars of the unreasonable delay ground but nothing turns on that in this case.

46. It was argued in the alternative by the respondent that, even if the appellant has not made decisions on the nineteen extant applications for visas, he has nevertheless made "proposed" decisions with respect to them. Reliance was placed upon the definition of "decision to which this Act applies" in s. 3(1) of the ADJR Act which speaks of "a decision ... proposed to be made". We were referred to the judgment of Hill J. in Victorian Broadcasting Network (1983) Pty Limited v Minister for Transport and Communications (1990) 21 ALD 689 where his Honour said at 696:

"When the ADJR Act speaks of a decision proposed to be made, which

may be the subject of an application by a person 'aggrieved' by it (s

5(1)) on one of the grounds set out in that section, it speaks not of

a decision that must be made, one way or the other, but of a decision

that has been put forward to the minister and adopted by him as one

that he proposes to make. The participle 'proposed' leaves open the

question by whom it is 'proposed'. However, the context of the

legislation suggests that the proposal must be of the decision-maker,

here the minister, rather than of a public servant who has

recommended that decision to the minister. A minister of the Crown

cannot be assumed to be a mere cipher for those advising him. It is

only if there is a decision which the minister himself proposes to

make that there can be a person aggrieved who is given standing to

make an application for review to the court. But, even if the

proposal could be the proposal of a ministerial adviser, the evidence

in the present case does not show that there is any such proposal

that has been put forward to the minister."

See also Roberts v Minister for Aboriginal Affairs (Olney J., unreported, 15 April 1991)

47. It was not part of the respondent's case before the primary judge that its application for review was based on a decision "proposed to be made". Neither the application nor the amended application contain reference to it, and the written submissions made by counsel for the respondent to the primary Judge are silent on the point. In these circumstances it is not open to the respondent to rely on this argument in the appeal. Also, in view of our findings that there is reviewable conduct, the point is essentially academic.

48. This completes what we described earlier as the first category of questions. We proceed now to the second category which turns on the facts and the construction of the expression "public interest criteria" in the Regulations. The two principal areas of fact concern the Joseph letter and the assertion of unreasonable delay.

49. The appellant submitted that the primary Judge erred in finding that the appellant took into account irrelevant considerations when considering the decision to refuse entry visas for Messrs. Bryce, Riley, Crouch and Phillips. It was also submitted that the primary Judge erred in restraining the appellant from taking into account, when making decisions with respect to the remaining nineteen applications for entry visas, what his Honour found to be the same irrelevant considerations, namely, the material contained in the Joseph letter and the fact of membership of HAMC or of its affiliated bodies.

50. Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 establishes the necessary elements which go to show that a decision-maker has failed to take into account relevant considerations and also throws light on the taking into account by a decision-maker of irrelevant considerations for the purposes of judicial review under the ADJR Act. The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. Where the legislation expressly states, as regulation 2 does here, the factors to be taken into account, it will often be necessary for the Courts to decide whether those enumerated factors are exhaustive or merely inclusive. Where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the legislation, the Court will not find that the decision-maker is bound to take a particular matter into account unless an implied obligation to do so is to be found in the subject matter, scope and purpose of the legislation. Not every consideration that a decision-maker is bound to take into account, but fails to take into account, will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially effected the decision. Mason J. pointed out at 40 and 41 the limited role of Courts in reviewing the exercise of an administrative discretion. His Honour said:

"It is not the function of the court to substitute its own decision

for that of the administrator by exercising a discretion which the

legislature has vested in the administrator. Its role is to set

limits on the exercise of that discretion, and a decision made within

those boundaries cannot be impugned: Wednesbury Corporation (1948) 1

KB at 228.

It follows that, in the absence of any statutory indication of the

weight to be given to various considerations, it is generally for the

decision-maker and not the court to determine the appropriate weight

to be given to the matters which are required to be taken into

account in exercising the statutory power. ..."

51. Mason J. said at 40 that a similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision. See generally Mason J.'s reasons for judgment at 39-44.

52. It must be borne in mind that the present case does not squarely come within the principles in the Peko-Wallsend Case because the application of the "public interest criteria" defined by regulation 2 requires only the making of findings of fact, not the exercise of a discretion. So far as relevant those criteria are:-

"in relation to a person who seeks to enter, or to remain in,

Australia under a visa or an entry permit, means the following

criteria, namely, the person:

(a) is of good character;

...

(c) is not determined by the Minister acting personally to be

likely to become involved in activities disruptive to, or

violence threatening harm to, the Australian community or a

group within the Australian community; ..."

53. To determine whether material is relevant or irrelevant it is of course necessary to determine the ambit of the issue to which the material is asserted to be relevant. Here, the issues are defined by the two applicable public interest criteria, namely, those in paragraphs (a) and (c) of regulation 2(1) of the Regulations. The first is whether the present fact of good character exists, the second is whether a person is predicted as likely to do certain things.

54. The assessment of "good character" contemplated by regulation 2(1) is a familiar task. Many matters will be relevant to this assessment most of which, taken individually, will not conclude the issues. Regulation 4(1) provides that for the purposes of the Regulations a person is taken not to be of good character if certain defined circumstances exist in relation to that person, but reg. 4(1) is not a code that defines good character for the purposes of the Regulations. An applicant for a visa must positively establish good character and reg. 4(1) does no more than to provide, in effect, that good character is not established if certain circumstances exist. Circumstances can well be envisaged in which a person would fail to satisfy the requirement of good character according to ordinary notions but would not fall within reg. 4(1). Regulation 143, which provides for the waiver of the good character requirement, supports the conclusion that there is no code. It allows the grant of a visa in certain circumstances to an applicant who fails to satisfy public interest criteria "only because the applicant is to be taken not to be of good character ..." (our emphasis).

55. Paragraph (c) of the defined "public interest criteria" is much narrower than paragraph (a). It too involves a factual assessment. It involves a determination as to the "likely" behaviour of a person who is seeking to enter, or to remain in, Australia under a visa or an entry permit. Paragraph (c) is in terms directed to a person who is likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community. The focus is upon the likelihood of involvement in activities having a broader impact than that which the activities may have upon an individual victim. A person likely to foment hatred on account of religious or racial differences in the Australian community would quite clearly fall within paragraph (c), although the paragraph, in its terms, is apt to cover other activities. It would, for example, be open to the appellant to determine that certain types of criminal activity, including drug-related activities, would have a sufficient impact upon the Australian community as a whole or upon a group within that community to fall within paragraph (c).

56. Paragraph (c) has quite clearly defined limits, the most important of which is the necessity for determination of a likelihood. A mere chance or possibility is not enough.

57. Many matters may be relevant to a determination of whether a person is likely to become involved in activities of a specified class if considered in combination with other matters. By itself, an individual matter may have no probative value, but in combination with others its relevance may become apparent. The weight to be attached to an individual relevant matter or a combination of matters is a question for the appellant and it is beside the point that a Court entrusted with judicial review of the appellant's decision might, if deciding the matter for itself on the merits, have taken an entirely different view about questions of weight.

58. The relevance of a particular fact to an issue can obviously depend upon the combination of facts of which it forms a part. Thus, in the course of a trial, evidence is not infrequently admitted conditionally upon its relevance being established in the broader context created by additional evidence. But if evidence of facts A, B and C (being otherwise irrelevant to any issue) is adduced conditionally, in the expectation that additional fact D will be proved so as to establish the relevance of each of the first three, it follows that if there is no evidence of fact D, facts A, B and C remain irrelevant to the issue and cannot be taken into account in determining it. In the course of a trial, therefore, it may only be possible to determine some questions of relevance when all the evidence is in.

59. Of course, in an application for review under the ADJR Act a court is not looking to material that would necessarily be admissible in a Court of law, and it must always bear in mind that questions of weight are in general questions for the decision-maker. But where it is known what material was or will be before the decision-maker, the same principles for ascertaining the relevance of an individual matter generally will apply. Where a matter can only be relevant if it operates in combination with other matters a similar inquiry must be made as to whether the necessary other matters are present.

60. It is therefore necessary to examine the scope of the material to be put before the appellant. The primary Judge noted that it had been said in evidence that the Joseph letter reflected the information obtained by the Department from law enforcement agencies, that the information in the letter represented the whole of the material available to the Department concerning HAMC and that it was intended that it be placed before the appellant as part of the Department's submission to him in respect of each application. His Honour also noted that in the circumstances of the case the appellant would, of course, be aware that the applicants for visas were members of HAMC and wished to attend the World Run.

61. It may not be strictly correct to say that the information in the letter represents the whole of the material available to the Department concerning HAMC; but the evidence was that the material to be put before the appellant will be the same material that was put to each applicant, that is to say, the material in the Joseph letter. For example, Mr Gallway, a senior officer in the relevant section of the Department, was asked:

"In a circumstances where one has an applicant for a visa who has no

prior convictions but is a member of the Hell's Angels what material

will be put before the Minister and what recommendation will be

made?"

"The material to be put before the Minister will be the same material

that we put to the applicant."

Later in his cross-examination the following passage occurs:

Q. "And you select what material goes before the Minister?"

A. "The material which we put to the Minister is

the same that we have given the applicants."

Q. "That is the material in the Joseph letter?"

A. "That is correct."

62. There are other passages in Mr Gallway's evidence to the same effect. It seems clear from the evidence that although the Joseph letter states that "the information extracted here is typical of the information that will be presented to the Minister", in fact, no examples other than those set out in the letter are to be put before the appellant. The appellant would, however, be made aware, as the Joseph letter says, that the instances in the letter are examples of material received by the Department from law enforcement agencies. Since the material to be put before the appellant is the same material as in the Joseph letter, the appellant will not know how many other examples the Department may have - the letter does not state that.

63. It is then necessary to consider whether the material in the Joseph letter is to be put before the appellant on the footing that the conclusions numbered 1, 2 and 3 in the letter are conclusions of law enforcement agencies or are conclusions drawn by his Departmental officers from information supplied by law enforcement agencies, being the matters set out in the letter by way of example and other like material, not specified in the letter.

64. We think it clear from the terms of the Joseph letter that the conclusions numbered 1, 2 and 3 are to be put as the conclusions of Departmental officers. The introductory words:

"I have received information from law enforcement authorities in

Australia which may lead the Minister to the following conclusions."

support that view and it is confirmed by the terms of conclusion 3 which reflects the language of public interest criterion (c) and which refers to advice given to "us" by the Melbourne Chapter of the Hell's Angels, in a context in which "us" must mean the Department.

65. The material upon which the Department will recommend to the appellant that he may think it appropriate to make a determination for the purposes of criterion (c) is limited in scope. The respondent asserted in its application for an order of review that it is an affiliated organisation of the Hell's Angels' organisations operating in other states of Australia and in numerous countries overseas including the United States, Canada, New Zealand, the United Kingdom, Germany and elsewhere and that it, together with other Australian affiliates, is to host the 1991 World Run of the HAMC. This would appear to be common ground. It would also appear to be common ground that members of HAMC have a common interest in motorcycles.

66. The Joseph letter asserts that HAMC is not merely an organisation of motorcycle enthusiasts some of whose members have criminal histories but is a highly organised and disciplined criminal organisation. However, as we have said, that conclusion is put before the appellant, as it was also put to the applicants for visas in the Joseph letter, on the footing that it is a conclusion to which the appellant may come on the basis of the extracts in the Joseph letter and other such examples.

67. Bearing in mind that the appellant may act on material that would not be admissible in a court of law, it would be open to the appellant to conclude from the material that some members of HAMC in the United States have been arrested for crimes, including drug offences, and that in connection with some of the investigations illegal drugs and weapons were seized, or were purchased by undercover police officers. He could also conclude that some members were considered by law enforcement authorities in the United States to be involved in the use of explosives. He could conclude that law enforcement authorities in Canada had identified members of HAMC as being involved in the importation and trafficking of drugs and other crimes. He might also conclude that other like information about HAMC members existed.

68. The appellant could also consider that, although any determination he might make for the purposes of criterion (c) would be in relation to an individual applicant, the circumstances of the applicant's proposed visit to Australia were potentially relevant. Each applicant intends to come to Australia as a member of HAMC in another country for the purposes of attending the World Run at which it is proposed that other such members would be present, as well as members of HAMC in Australia. He could regard as potentially relevant the common object of those present to attend an event that is a "Hell's Angels" event. Whilst focusing his attention on the individual applicant, he could regard as potentially relevant to the applicant's likely behaviour the purpose of the visit and, as also potentially relevant, the affiliations of the other people who, it is proposed, will be present with the applicant at the same place and at the same time.

69. There can be no doubt that in some circumstances the fact of membership of an organisation and attendance at a function organised by it will have probative value in considering the activities in which a person is likely to engage. But whether or not such facts have any probative value at all in a particular case and with respect to a particular issue will, obviously enough, depend entirely on the circumstances.

70. Insufficient may be known about the nature and structure of an organisation to enable any rational conclusion to be drawn about the likely behaviour of individual members in any given set of circumstances. Indeed, common experience suggests that very great care needs to be taken in engaging in any predictive exercise, on the basis of a person's affiliations, if logically unjustifiable and unfair conclusions are to be avoided.

71. Here, the information in the Joseph letter, examined in the context of the totality of the information available at this stage and to be placed before the appellant makes it quite impossible to conclude, on any reasonable basis, that an individual applicant for a visa would be likely - we stress "likely" - to engage in conduct of the nature referred to in paragraph (c). The information is simply insufficient to support a positive prediction that an individual member is likely to become involved in activities of the kind described in criterion (c).

72. There is nothing in the material to be put before the appellant to link any individual applicant with any of the circumstances referred to in the Joseph letter, or any unstated like examples, other than membership of another overseas chapter of HAMC. The appellant is to receive no information about the size of the total membership either in the countries from which the applicants come or in the countries from which the examples are taken. The drawing of conclusions about the likely behaviour of an individual in a particular respect from that individual's membership of an organisation would, in our view, require information in addition to that which will be placed before the appellant.

73. Accordingly, we conclude that if the information in the Joseph letter comprises, as at this stage in the decision-making process it does, virtually all of the information that will be placed before the appellant, it will be irrelevant to public interest criterion (c). We so conclude not because of its nature or because of the criticisms that may be made about its generality; those are matters which go to its weight. We reach this conclusion because there will be insufficient material before the appellant to make the information in the Joseph letter relevant to the determination of one of the issues that the appellant may have to consider. To that extent, therefore, we agree with the finding of the primary Judge, although we have reached that conclusion by a somewhat different route.

74. That is not, however, the end of the matter because it does not exclude the relevance of the material to the public interest criterion of good character. The question for the Court is not what conclusion it might reach if it had to decide the question of good character; but whether irrelevant material is to be placed before the appellant. In relation to good character the issue is very much broader than it is in relation to criterion (c). The affiliations of a person may be relevant to the question of good character as one of many matters that could be considered. The weight to be given to membership of an organisation may vary enormously and opinions may legitimately differ on such questions. They are not questions for this Court. It is commonly said, sometimes unfairly, that a person may be known by the company he keeps. If it is well known that a particular organisation has undesirable members or attributes, then an affiliation with that organisation may - by no means must - bear upon that person's character. It might be thought that something of the same problem arises with relevance as to character as arises with relevance as to criterion (c) because the information about Hell's Angels to be placed before the appellant is limited. But in relation to character this consideration goes to weight, not to relevance. It is a circumstance to be taken into account along with others, including, to the extent that the appellant considers appropriate, any response by an applicant to the Joseph letter, in determining whether he is satisfied that an applicant is of good character. Moreover, it is for an applicant to satisfy the requirement of good character. A more difficult task faces those who assert irrelevance in such circumstances than where the attack is on the relevance of material to a decision that involves a positive satisfaction on the part of the decision-maker about a likelihood. In these circumstances, it cannot be concluded that the information in the Joseph letter is irrelevant to one of the issues the appellant may need to consider in relation to the visa applications.

75. We should make it clear that the Court expresses no view about the correctness or otherwise of the information placed before the appellant. That is not its function in a case such as this. The question is whether certain material is relevant to an issue or issues. For reasons we have given, we consider that, if the material to be placed before the appellant remains in its present form, including the Joseph letter, then the Joseph letter will be irrelevant to any issue concerning public interest criterion (c), but that it will not be irrelevant to public interest criteria of good character.

76. What we have said relates to the prospective consideration by the appellant of the nineteen applications for visas not yet determined by him. As to the decisions already made by the appellant refusing to grant visas to the four Canadian applicants, they were dealt with in argument by counsel for both parties essentially on the same footing as the remaining nineteen applications. Hence, our conclusion that the material in the Joseph letter is, without more, irrelevant to the application of criterion (c) to the remaining nineteen applicants applies at least with equal force to the four decisions already made. Indeed, as those decisions have been made and it is known what material was placed before the appellant before he made his decision, it follows that he must have taken the Joseph letter into consideration and there is no evidence to suggest that any other material was before the appellant which could have made the material in the Joseph letter relevant. The appellant chose (and he was entitled to do so) not to give his reasons for making the four decisions; but it is plain from the evidence that the material placed before him by the Department, in particular the Joseph letter, emphasized the public interest criterion (c). In those circumstances we infer that the appellant made his decisions primarily on that criterion. He may have considered the public interest criterion of good character; but any such consideration would have been of secondary importance to him.

77. It follows that the decisions refusing visas to the four Canadian members of HAMC were made by taking irrelevant considerations into account and must be set aside. The appellant will no doubt reconsider the applications of those four applicants along with the remaining nineteen applicants.

78. It is now convenient to consider the question of natural justice.

79. It was argued before the primary Judge that there had been a breach of the rules of natural justice because, it was said, the applicants for visas had not been given a proper opportunity to answer the broadly-based allegations in the Joseph letter, which allegations had no relevance to any particular applicant for a visa and which were drawn from sources which could not be tested or shown to relate to any such applicant. The primary Judge did not rule on this issue, it being unnecessary to do so having regard to his other findings. The respondent contended before us that it was open to the Court to determine on the facts found by his Honour that there had been a denial of natural justice.

80. In our view the procedures adopted by the Department were such as to give each applicant for a visa a sufficient opportunity to answer the material in the Joseph letter. It is not necessary in this case to explore the relationship between a challenge to a decision on the ground of the denial of natural justice and a challenge on the ground that irrelevant matter has been taken into account. As we have said, the material in the Joseph letter was irrelevant to one issue, but cannot be said to be irrelevant to the other. The circumstance that the material in the Joseph letter is broadly based and was drawn from sources which could not be tested or shown to relate directly to any applicant does not mean that there has been a denial of natural justice in the circumstances of this case. It has been said often that the requirements of natural justice or procedural fairness will vary according to the circumstances. On a visa application, procedural fairness does not require that there must necessarily be something in the nature of a hearing with an opportunity given to applicants to test, by cross-examination for example, the material to be placed before the appellant. In the present circumstances, each applicant was, on the interpretation we place upon the Joseph letter, informed quite clearly of the material that was to go before the appellant and was given the opportunity to say whatever he wished about it and to provide whatever information he wished to the appellant. He was given adequate time in the circumstances to do so and the Department made arrangements to facilitate the transmission of responses to it in Australia. The fact that much of the material is of a general nature does not, of itself, mean that natural justice has been denied. The objection on the ground of irrelevance is, in this case, another matter and we have dealt with that.

81. It is true that the Joseph letter focused sharply upon the "likely harm" criterion and it was in respect of this criterion that responses were specifically invited. However, the applicants were informed of the "good character" requirement and this was not done in such a way as to suggest that the appellant would not consider good character or that it was an issue on which he required no submissions. The provision of information bearing upon the good character of an individual applicant would be an entirely rational response to the Joseph letter; indeed, it is a response that might be expected and some applicants did in fact respond in this way.

82. Nor was there any denial of natural justice in the circumstances of this case on account of the appellant's being told that the extracts in the Joseph letter were by way of example. In the circumstances of the present visa applications, where the appellant himself is not to be provided with the examples, it cannot be said that the applicants have been denied natural justice. The applicants have been given an opportunity to comment upon the very same material that will be put before the appellant. In other circumstances, of course, a different result might follow and natural justice might well be denied by the selection of an example or examples with a statement that there were other instances of a like nature. If the examples related specifically to an individual, for instance, the failure to say what the other instances were, might deprive the individual of the opportunity, which fairness required, to refute the allegations entirely.

83. The respondent asserts that the decisions of the appellant with respect to the four unsuccessful applicants for visas and the reviewable conduct with respect to future decisions of the appellant on the remaining nineteen applications, all constitute improper exercise of the power conferred by the Migration Act within the meaning of s.5(1)(e) and s.6(1)(e) of the ADJR Act, in that the appellant has exercised and is exercising a discretionary power in accordance with a "rule or policy" without regard to the merits of the particular case: see s.5(2)(f) and s.6(2)(f).

84. The "rule or policy" is said to be the fact that the respondents are members of HAMC and so are to be refused visas, irrespective of whether they have criminal convictions or not. The application and the amended application filed by the respondent do not make any such assertion of a "rule or policy" being taken into account by the appellant; nor were submissions to that effect put to the primary Judge. The submissions of the respondent were put in writing to his Honour, and we have read them; but they do not raise this question at all. So the respondent cannot succeed on this ground. Even if this point could be raised by the respondent at this late stage, although membership of the HAMC has apparently been regarded as relevant and significant by the appellant's advisers and by the appellant himself, the evidence does not establish that the appellant applied a "rule or policy" with respect to any of the four applications for visas already determined or that he is considering applying such a rule or policy in the case of the remaining nineteen applications.

85. The appellant submitted that the primary Judge erred in holding that there had been unreasonable delay in respect of the processing by the Department of the applications for entry visas by members of HAMC. His Honour said that he reached this conclusion

"after a consideration of the totality of the evidence which admits

of no other explanation than that since the settlement of the

earlier proceeding officers of the department whose function it is

to process the applications to a stage where they can be submitted

to the Minister for consideration and decision have embarked upon

a planned course of conduct designed for no purpose other than to

delay the decision making process until it would be too late to an

applicant to attend the World Run."

His Honour mentioned eight aspects of the evidence which he said supported that conclusion. Before turning to those specific matters we shall make some general observations. Two officers of the Department, Mr M J Gallway and Mr R K Muir, gave evidence in support of the appellant's case. Mr Gallway is, as mentioned earlier, a senior officer in the relevant section of the Department. He swore two affidavits. Mr Muir is director of the relevant section in the Department and he swore an affidavit. Both witnesses were cross-examined; but it was not put to either witness that they or other officers of the Department had collaborated in a planned course of conduct designed solely for the purpose (or, indeed for any purpose that included the purpose) of delaying the decision-making process until it would be too late for an applicant for a visa to attend the "World Run". It is the respondent who was the moving party before the Court at first instance and who bore the onus of establishing its case. If it was part of its case that there had been some conspiracy to render futile the applications for visas by members of the HAMC then the point should have been put squarely to the relevant departmental officers, but it was not.

86. We turn to each of the eight aspects of the evidence to which the primary Judge directed his attention.

1. His Honour found that the first of the Joseph letters was not sent out until over seven weeks after the terms of settlement were agreed to, notwithstanding that applications for visas had been received as early as "27 and 28 August 1991". No explanation was offered, his Honour said, as to the delays, in some cases quite inordinate delays, which occurred between receipt of an application and the dispatch of the Joseph letter.

87. Before the Department sent the first Joseph letter to the prospective applicants for visas it obviously had first to receive the applications themselves. They were received by the Department on various dates, the earliest being on 27 August and the latest on 25 October. Most of the applications were received in September and early October. The Department took the view that, although the terms of settlement required that each application for an entry visa had to be considered "individually upon its merits according to law" rather than simply as one blanket application for members of HAMC, nevertheless it was incumbent upon the Department to make appropriate recommendations to the Minister with respect to the applications when and only when the application had been received and appropriate steps had been taken for the processing of each of the applications. The Department denies that it agreed with the respondent that it would "fast-track" the applications for visas. However, it certainly seems to have been in accordance with the spirit of the terms of settlement that the applications would be processed, if it could be done consistently with the duty of officers of the Department under the Migration Act and Regulations, in time to enable the applications to have been determined before the "World Run" commenced in Australia. We have already referred to the relevant statutory provisions from which it is plain that the appellant could not consider application for entry into Australia unless and until applications for visas had been received in the approved form and in accordance with the Regulations and the requisite fees paid in respect of them. The question of delay in processing the application must therefore be considered in the light of those statutory provisions and the obligations imposed upon the appellant by them and in the context of the applications being received at various times between late August and late October.

88. The Department took the view that it should write to the ABCI asking for any submissions that it might wish to put to the appellant in respect of the entry of members of HAMC for the "World Run". This letter was written on 10 September 1991 by the Department to the Director of ABCI and it was not until 24 September that the Director replied. The reply was a formal one in that it did little more than bring up to date the material which the ABCI had previously furnished to the Department earlier in 1991. In our opinion, the Department cannot be criticised for seeking to bring up to date material which had been provided to it on an earlier occasion relating to critical questions concerning possible criminal activities of the HAMC. Also the Department and the solicitors for the respondent were in written communication with each other following the settlement on 23 August 1991. From as early as 29 August 1991, Mr Muir wrote to the solicitor for the respondent in the terms previously mentioned. Other correspondence between them ensued at frequent intervals thereafter; so the solicitor for the respondent was kept informed of progress being made so far as it was legitimate to disclose to him matters concerning the applications for visas by members of HAMC.

89. The procedures adopted within the Department to consider the applications for visas from members of HAMC when they were received by the Department are described in the affidavit of Mr Gallway of 4 November 1991, and it is plain from the evidence that there was a refinement of procedures customarily adopted within the Department to meet the special needs of applicants for visas to attend the proposed "World Run" following the settlement reached on 23 August 1991. Certainly the procedures do not suggest any intention by the Department to process the applications with alacrity, but it does not follow that they were deliberately fashioned to prevent their being processed before the "World Run" was held. We have the firm impression from the evidence that the Department took the view that it should modify and adjust its customary procedures because of the terms of settlement, but that it saw no reason why it should necessarily "fast-track" the procedures. Nor do we regard that attitude as warranting criticism. It was not until 9 August 1991 that the first set of proceedings was instituted in this Court in which the respondent sought a review of the decision referred to in Mr Joseph's letter of 10 May. Those proceedings were then resolved by the consent order of 23 August. The time for dealing with applications received thereafter had thus to be substantially compressed if they were to be processed before the "World Run" was held in this country in October 1991.

2. His Honour found that the Joseph letter had not been shown to contain any new information that was not available to the appellant when the original ban was placed in May 1991 on HAMC members attending the "World Run". He said that this strongly suggested that the letter was merely a "device" for delaying the submission of applications to the appellant for consideration.

90. As mentioned with respect to 1 above, the appellant cannot be criticised for going back to the ABCI after the settlement in August to see if it wished to say anything further to the appellant by way of qualification or contradiction of what had been said earlier. The fact that no fresh information was received from ABCI is not, in our opinion, a ground for criticism of the appellant. It was legitimate to seek this information. In our respectful opinion it is not to the point that the ABCI's response in the result contained no new information.

3. His Honour found that the period of twenty-eight days stipulated in the Joseph letter as the period within which the recipient should respond was inordinately long, given the relative dates on when the respective letters were dispatched and the proposed date of the "World Run", particularly in view of the ready availability worldwide of facsimile communications. His Honour found that the submission made on the appellant's behalf that twenty-eight days were allowed for a response was to ensure natural justice, was not supported by the facts.

91. As counsel for the appellant submitted, the choice of the period to be stipulated in the Joseph letter was a difficult one. Twenty-eight days was fixed as the period within which the recipient should inform the Department of the matters to which the letter was directed. Had the time been less than twenty-eight days (say, seven or fourteen days) then the Department might have been attacked on the ground that it had allowed too short a time to respond to the letter and therefore denied natural justice. Indeed, the letter itself makes it clear that twenty-eight days was the time fixed within which the recipient must respond, and, if he did not do so, the application would proceed to the Minister thereafter for a decision. The letter does not suggest that, if the recipient responds in less than twenty-eight days, nothing will happen until the twenty-eight days have elapsed. Indeed, the penultimate paragraph of the letter says "All relevant matters will then be put before the Minister as quickly as possible" ("then" being after the recipient has given the requisite information to the Department). Further, the evidence does not support a finding that the appellant would not have acted earlier if a communication had been received from an applicant for a visa in less than twenty-eight days. In fact, three of the applicants: Messrs. Crouch and Phillips, who were sent the Joseph letter on 11 October 1991, and Mr Bryce, who was sent the Joseph letter on 14 October, 1991, did reply within the twenty-eight day period (all on 22 October 1991) and the applications were then dealt with, also within that period (all on 6 November 1991). Mr Riley replied too but it is not clear when he was sent the Joseph letter.

4. His Honour was of the view that the allegations contained in the Joseph letter were of a "non-specific" and "anecdotal" nature which rendered a meaningful response virtually impossible. His Honour said also that in any event the letter could have been directed to the respondent for comment rather than to each individual applicant for a visa.

92. As we read the Joseph letter, it made a number of general assertions to which any applicant for a visa could have responded as he thought fit. He could, for example, have said that, whether the imputations of criminal activity against some other members of HAMC were true or not, they did not apply to him. We cannot agree that a meaningful response was virtually impossible. It is true that the letter could have been directed to the respondent for comment, but in our view the Department cannot be criticised for sending the letter to each applicant for a visa because each application for a visa had to be considered on its own merits, a principle enshrined in the terms of settlement of August 1991. Indeed, the letter in fact came to the attention of the respondent, though not at the behest of the appellant, and no response was given by it to the appellant.

5. The primary Judge held that the Department failed to notify the respondent of its intention to send the Joseph letter or of its contents in circumstances in which it purported to be co-operating with the appellant to deal expeditiously with the visa applications.

93. The fact that the Department did not notify the respondent of its intention to send the Joseph letter or of its contents seems to us to be a neutral circumstance.

6. His Honour found that the delay occasioned by the "device" of seeking the views of the Bureau in circumstances in which four months earlier the appellant had decided that it would be contrary to the public interest to refuse entry to Australia of non-citizen HAMC members wishing to attend the "World Run", was unwarranted. He found that no credible explanation was offered as to why any further inquiry from the Bureau had been necessary in September 1991, nor what benefit had been derived from making it.

94. We have touched on these matters to some extent under 1 and 2 above. In our respectful opinion his Honour erred in finding that for the Department to seek the views of the Bureau in the circumstances mentioned above was a "device". Again, as we mentioned earlier, the two departmental officers who gave evidence were not cross-examined to the effect that any "device" had been employed, or that delay in processing the applications had been continued for some ulterior motive. These suggestions were not put to either of them squarely or otherwise. The Department cannot validly be criticised for again seeking the comments of ABCI after the settlement of August 1991, even though the reply added nothing to what had been received some four months earlier.

7. His Honour was critical of the Department for sending the Joseph letter to applicants for visas whose criminal records had been supplied earlier by ABCI, without the Department referring those applicants to the particular record; and he referred also to the further delay in some cases before putting the record to the applicants for comment.

8. His Honour found that there was a failure by the Department to deal promptly with applications for visas from applicants who clearly had no record of convictions.

96. We agree with his Honour that it would have been preferable for a particular applicant against whom an adverse comment had been made by ABCI to have been told of that comment in reference to his criminal record; but we do not see from the evidence how it could be held against the Department that there was delay in some cases before putting the record to the applicants for comment. Again, although it does not seem that the Department was treating the applications with the greatest urgency, we do not discern from the evidence any delay of such a kind or dimension that could be called unreasonable.

97. A criticism of counsel for the appellant of his Honour's finding of delay was that his Honour instead of examining each application for a visa separately and determining in respect of each whether there had been unreasonable delay, determined the average of the delays that occurred within the Department in processing the applications for visas when reaching his conclusion that there had been overall unreasonable delay. It was said that his Honour treated the applications for visas in globo and that he should not have done so.

98. His Honour made a series of findings tending to establish an average time taken to process the applications, in particular the average delay between receipt of the application for visa and the Department's request to ABCI for its assistance. We do not agree that his Honour erred in calculating these averages. As we read his judgment he did in fact examine each application and considered the time taken to deal with it; but turned to the average as a form of confirmation. Although we do not agree with the conclusion which his Honour reached that there was unreasonable delay we nevertheless do not think that the use which he made of averages invalidated his reasoning.

99. In our opinion his Honour's finding that there was a planned course of conduct to delay the determination of the applications for visas cannot be supported. Also, although there was delay in dealing with some of the applications for visas, there was no delay at all in considering others and no unreasonable delay in any case.

100. We conclude that the appeal from order 3 made by the primary Judge on 11 November 1991 (setting aside the decisions of the appellant made on 6 November 1991 refusing applications for entry visas made by Messrs Riley, Bryce, Crouch and Phillips) should be dismissed; but otherwise the appeal should be allowed and the orders made by his Honour except order 3 should be set aside. Each of the applications for entry visa referred to in order 3 of his Honour should be referred to the appellant for reconsideration according to law. As the appellant has yet to consider the remaining nineteen applications for visas, it is in our view neither open nor appropriate for the Court to make any order referring those applications to him for consideration according to law. Of course, when the appellant does consider them he will do so in the light of the Court's reasons for judgment.

101. As the respondent has succeeded in setting aside order 3 and therefore would have partially succeeded at the trial and as it has been successful to a degree in its contentions with respect to the Joseph letter, it is appropriate that there be no order as to the costs of the proceedings at first instance.

102. As the success of each party in the appeal is fairly evenly balanced, we also decline to make any order as to the costs of the appeal.