Halmi v Minister for Immigration & Multicultural Affairs [2000] FCA 113

FEDERAL COURT OF AUSTRALIA

Halmi v Minister for Immigration & Multicultural Affairs [2000] FCA 113 IOAN DOREL HALMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1132 of 1999 HILL J 10 FEBRUARY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1132 OF 1999

BETWEEN: IOAN DOREL HALMI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 10 FEBRUARY 2000

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 On 22 October 1999 I delivered reasons rejecting an interlocutory application made by the applicant, Mr Ioan Dorel Halmi, that he be released from detention pending the hearing of an application he had brought for review of a decision of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") under s 501 of the Migration Act 1958 ("the Act") to cancel the permanent resident visa (East European Program) which had been issued to him. Before me today is the substantive hearing of the application. 2 Since delivering those reasons Mr Halmi has amended the grounds upon which he relies. Two matters only are now relied upon. The first is that the Minister's decision was induced or affected by actual bias. The second is that the Minister's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law. Particulars contained in the amended application show that the case on actual bias is said to arise out of a letter which the Minister had written to the President of the Administrative Appeals Tribunal which is set out substantially in full in Jia Le Geng v Minister for Immigration & Multicultural Affairs [1999] FCA 951. The submissions on the question of bias made reference also to the report of an interview held between the Minister and the interviewer, Mr Clive Robertson, on 2GB on 14 April 1997, the substance of which interview is likewise set out in Jia's case. In the letter, addressed to Mathews J, the Minister expresses his concern at decisions of the Administrative Appeals Tribunal which had overturned exercises of discretion by the Minister or officers of the department involving persons who had previously been judged guilty and sentenced for criminal offences. The letter indeed discussed the case of Mr Jia and expressed views about the Tribunal's decision in that case. 3 The Minister deplored the fact that the Tribunal had, in his view, misconstrued the tests involved where the question of good character under s 501 of the Act arose. The decision illustrated, so the Minister said, a tendency on the part of the Tribunal to afford greater weight to the interests of the individual and their family than to the protection of the Australian community and the integrity of Australia's entry programs. 4 The final paragraph of the letter, which was the subject of some comment by the Full Court in Jia's case, read as follows: "The community's expectations of the Government to prevent entry or remove or deport will not be met if the Tribunal overturns the Government's decisions in relation to those who are not of good character or have committed serious crimes. The recent decisions of non-citizens convicted of serious criminal offences who have had their deportation orders overturned, as well as decisions to overturn the refusal of visas on character grounds, have heightened community concerns especially where a number of these have re-offended. The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia." 5 Rather similar views are expressed by the Minister in the interview with Mr Robertson. In the course of that interview, he expressed his displeasure that the number of criminal deportations had in recent years come down to a situation where only about 40 or 50 people were in fact deported in any one year. When asked by the interviewer what the test of good character was in the law, the Minister said: "What we are looking at here is the commission of offences. I don't believe you are of good character if you've committed significant criminal offences involving penal servitude."