Minister for Immigration and Multicultural Affairs v Jia

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow J,Kirby J,Hayne J,CALLINAN J
• Judgment Date: 29 March 2001
• Neutral Citation: [2001] HCA 17,2001-0329 HCA A
• Court: High Court
• Docket Number: P43/2000 P74/2000 P81/2000
• Date: 29 March 2001

[2001] HCA 17

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ

P43/2000

P77/2000

P74/2000

P81/2000

Minister for Immigration and Multicultural Affairs

Appellant

and

Jia Legeng

Respondent

Re Minister for Immigration and Multicultural Affairs

Respondent

Ex Parte Jia Legeng

Prosecutor

Re Minister for Immigration and Multicultural Affairs

Respondent

Ex Parte Jia Legeng

Prosecutor

Minister for Immigration and Multicultural Affairs

Appellant

and

Te Whetu Whakatau White

Respondent

Re Minister for Immigration and Multicultural Affairs

Respondent

and

Ex Parte Te Whetu Whakatau White

Prosecutor

Representation:

R R S Tracey QC with P R Macliver for the appellant (instructed by Australian Government Solicitor)

W S Martin QC with H N H Christie for the respondent (instructed by the Director of Legal Aid, Legal Aid Western Australia)

Constitution, s 75(v).

Migration Act 1958 (Cth), ss 476, 501, 502.

Minister for Immigration and Multicultural Affairs v Jia Re Minister for Immigration and Multicultural Affairs ; Ex parte Jia Minister for Immigration and Multicultural Affairs v White Re Minister for Immigration and Multicultural Affairs; Ex parte White

Immigration — Actual bias — Prejudgment — Cancellation of visa by Minister — Public discussion by Minister of relevance of past criminal conduct to question of good character — Whether exercise of discretion by Minister was affected by bias.

Immigration — Procedural fairness — Reasonable apprehension of bias — Standard of conduct required of Minister exercising powers under Migration Act 1958 (Cth), ss 501 and 502 – Application of principles of bias and apprehended bias to members of executive government contrasted with their application to judges.

Immigration — Cancellation of visa by Minister under Migration Act 1958 (Cth), ss 501 and 502 – Whether powers under ss 501 and 502 can be exercised in a manner contrary to a tribunal decision without a material change in circumstances.

Administrative law — Natural justice — Bias — Actual and imputed — Immigration decision made by Minister — Whether exercise of discretion was affected by bias — Reference to individual case in public broadcast and private letter — Whether Minister's powers may be exercised in a manner contrary to a tribunal decision without a material change in circumstances.

Words and phrases — ‘good character’.

ORDER

1. Appeal allowed with costs.

2. Set aside the orders made by the Full Court of the Federal Court on 15 July 1999 and in place thereof, order that the appeal to that Court be dismissed with costs.

1 Gleeson CJ and Gummow J. Four proceedings have been heard together. Two are appeals by the Minister for Immigration and Multicultural Affairs (‘the Minister’) against decisions of the Full Court of the Federal Court of Australia. In each case it was held that, in exercising his powers under ss 501 and 502 of the Migration Act 1958 (Cth) (‘the Act’) to cancel a visa and declare a person to be an excluded person, the Minister was affected by actual bias. The other two proceedings are in the nature of defensive responses to the appeals. Mr Jia and Mr White both seek relief from this Court, in the exercise of its original jurisdiction, based on s 75(v) of the Constitution, on the ground that, even if the decisions of the Full Court were to be overturned, the relevant decisions of the Minister involved a denial of natural justice in that they were induced or affected by bias or were made in circumstances where there was a reasonable apprehension of bias.

2 Because Pt 8 of the Act relevantly limits the jurisdiction of the Federal Court and confines it to dealing with a claim of actual bias (ss 476(1)(f) and 476(2)(a)) 1, Messrs Jia and White were unable, in the proceedings they brought in the Federal Court, to seek to make a case of apprehended bias. However, subject to any discretionary consideration, they may seek to make such a case in this Court 2. The relationship between the two different bias contentions will require further consideration. It is convenient to explain the nature of the dispute between the parties by reference to the appeals.

The background to Mr Jia's case

3 Mr Jia is a Chinese national who arrived in Australia on a student visa in August 1991. Since then, his dealings with the immigration authorities have been complex. He made an unsuccessful application for refugee status, was detained in custody for a time, and was convicted of a number of offences against the immigration and taxation laws. In November 1993, it was decided that he met the threshold criteria for an application for a Special Entry Permit.

4 In December 1993, Mr Jia was arrested and charged with a number of offences, allegedly committed in November 1993, in relation to a woman named You Li, with whom he had previously had a relationship. In February 1994, he was granted permission to work in Australia. In April 1994, he applied for a Special Entry Permit. In August 1994, he was granted a Processing Entry Permit to allow him to maintain his legal immigration status in Australia whilst his application for a Special Entry Permit was processed. In February 1995, Mr Jia

was brought to trial on the charges that had been laid against him in December 1993. He was convicted of four offences. They involved unlawful assault upon You Li causing her bodily harm, unlawful detention of You Li, making a threat to unlawfully harm her, and sexually penetrating her without her consent. He was sentenced to a total term of imprisonment of six years and three months. That included a sentence of four years and nine months, after allowing credit for time spent in custody, in relation to the sexual penetration offence. He appealed to the Court of Criminal Appeal of Western Australia. The appeal was dismissed in August 1995.

5 On 18 August 1995, a delegate of the Minister refused Mr Jia's outstanding application for a Special (Permanent) Entry Permit. He applied to the Migration Internal Review Office for a review of that decision. Following review, his case was reassessed. On 1 December 1995 a delegate of the Minister refused to grant him a Transitional (Permanent) Visa or a Resident Return Visa. He applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of that decision. His application came on for hearing before Deputy President Barnett in June 1996.

6 The Tribunal set aside the decision under review and remitted it to the Minister with a direction that Mr Jia qualified for obtaining a Transitional (Permanent) Visa on the basis that he was a person of good character.

7 It is unnecessary for present purposes to consider at length the reasoning of Deputy President Barnett. It is important, however, to note some aspects of it, because it forms part of the background to certain public comments later made by the Minister.

8 Mr Jia's application for a visa had been refused under the provisions of s 501 of the Act, which will be referred to in more detail below. In brief, it was concluded that, having regard to his past criminal conduct, he was not of good character.

9 The delegate who had made the decision had acted pursuant to a recommendation from an officer of the Department of Immigration and Ethnic Affairs. That officer, in turn, had taken into account a Procedures Advice Manual. The Manual had offered guidance to decision-makers. It stated that, in the absence of special circumstances, a person would, normally, as a matter of policy, be taken to be not of good character because of past criminal conduct if the person had at any time been convicted of a crime and sentenced to imprisonment for a period of not less than one year. However, the Manual went on to state that, in considering whether to grant a visa, a decision-maker should consider all relevant factors, including whether the applicant had shown by subsequent conduct that he or she was reformed. Factors to be taken into account were said to include the nature and circumstances of the offence, including the age of the applicant at the time of the offence, the subsequent conduct of the applicant, the time that had elapsed since the occurrence of the offence, the circumstances of the person at the time of the application, the nature of the application, and the likelihood of re-offending. The officer who made the recommendation to the delegate examined all those factors and set out the result of such examination.

10 The approach taken to the matter by Deputy President Barnett also involved a consideration of those questions. In one respect, however, his reasoning might fairly have been regarded as surprising. His examination of the nature and circumstances of the offences committed by Mr Jia led him to a conclusion as to the culpability of Mr Jia's conduct which was significantly more favourable than that which had been reached by the criminal courts. He investigated, in detail, the relationship between Mr Jia and You Li, and the events which led to Mr Jia's convictions. He formed the opinion that You Li had behaved badly towards Mr Jia. He considered that there were strongly mitigating circumstances. He said that, in view of the jury's findings and the judge's sentences, ‘the applicant must have gone beyond what [was] permissible in the sometimes stormy “give and take” of lovers” quarrels.’ This was a strikingly benign complexion to put upon the facts. Rape is a serious crime of violence. The view that was taken of Mr Jia's conduct is impossible to reconcile with the sentences that were imposed. The Deputy President referred to witnesses who had given character evidence on behalf of Mr Jia. He concluded that, although there had been a brief period of criminal conduct which may have indicated otherwise, Mr Jia was a person of good character.

11 That decision attracted public attention and adverse comment....