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." 6 It should be noted at this point that s 501 of the Act was in a substantially different form at the time the Minister made the comments and at the time the Full Court decided Jia's case from that which it takes today. As is clear enough from a perusal of the Full Court decision, the legislation at that time provided no statutory test of what constituted good character. The task for the Minister was first to determine for himself whether the relevant person was or was not of good character, and then, if not of good character, whether to exercise the discretion which the section conferred upon him, to cancel or not to cancel the relevant visa. As already indicated, the statutory provision in its current form is now quite different. 7 The Full Court set aside the decision which the Minister had made on the basis that it was induced or affected by actual bias. In so doing, the Court accepted the test which had been applied by French J at first instance of what was necessary to show actual bias. That test, as expressed in the judgment of Nicholson J, at paras 157-161, was whether the decision-maker had prejudged the matter for decision beyond a firmly or even strongly held view to the point where the decision-maker's view was not open to change by the relevant facts which fell for his consideration, see too Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ. The onus of showing actual bias rests with the person asserting it, and as Nicholson J pointed out in Jia, this is a heavy one. In Jia, the onus was satisfied. 8 The radio interview and letter demonstrated, it was held, that the Minister at the time he made the relevant statements and a fortiori at the time he made the relevant decision, had prejudged the important issue that arose for him to decide, namely, whether a person with a criminal conviction was of good character to such an extent that his views on this question were not open to change. 9 Significant to the Court's decision was the last paragraph of the letter to Mathews J to which reference has already been made. That paragraph demonstrated a biased view that a person would not be of good character if that person committed a significant criminal offence involving penal servitude. See for example the judgment of Spender J at para 63. 10 As I have already foreshadowed, s 501 has, since Jia's case, been amended. In substance, it first requires the Minister to form a view or views as to whether an applicant passes what the section refers to as "the character test". The character test is that set out in s 501(6). For present purposes, it suffices to say that a person does not pass the character test if that person has a "substantial criminal record", as that expression is defined in subs (7). 11 A person such as Mr Halmi, who has been sentenced for a term of imprisonment of twelve months or more, has a substantial criminal record as defined and accordingly must fail the character test. The question arising under s 501(2), in the present case, involved no element of discretion or judgment on the part of the Minister at all. Subsection (2) provides: "The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test." In the present case, the difference between the two sub-paragraphs is immaterial. 12 However, s 501 does involve a question of discretion, even in a case such as the present. Although a person does not pass the character test, the decision whether to cancel a visa which can be made by the Minister is expressed as discretionary in the sense that the Minister is empowered to cancel and impliedly therefore not to cancel the visa granted to the person. 13 The case for Mr Halmi therefore is that, having regard to the interview and the letter to the President of the Administrative Appeals Tribunal, the Minister must be taken to have been biased in exercising the discretion he had under s 501 not to cancel the visa, despite the fact that Mr Halmi had failed the character test. It is suggested that any suggestion that the Minister had in some way changed his views since the time of the letter and interview was negated by the way the Minister went about exercising his discretion, as demonstrated in the reasons for his decision, which were tendered. 14 A number of matters in those reasons were referred to in support of this submission. It was said that the Minister had erred in stating that the lengths of sentences which Mr Halmi had received in total were wrongly stated. It is difficult as such to see that anything turned upon that even if it was so and it certainly is not manifestly so. It was said that the fact that the Minister had accumulated the offences rather than taking into account the fact that, if they had been dealt with together a lesser sentence would have been given, likewise indicated that he had not changed the facts. This too seems to me of little point. 15 The greatest weight was placed upon the way the Minister had dealt with matters involved in the proceedings in the Administrative Appeals Tribunal heard by Dr Gerber and the subject of a decision made on 4 December 1998. Dr Gerber, in the proceedings before him, took the view that Mr Halmi was unlikely to re-offend and in particular unlikely to return to the addiction which had brought him into conflict with the law. In arriving at this view, he was aided by the evidence of Dr Clark, a psychiatrist who, while unable to guarantee that Mr Halmi would not return to drugs, was at least of the view that this was unlikely. 16 Despite Dr Gerber's decision and Mr Clark's evidence, the Minister took a different view. Indeed, the Minister assessed there to be a "moderate to high likelihood that Mr Halmi may reoffend". 17 Dr Gerber, it was said, had placed some weight upon the fact that Mr Halmi was, in respect of the criminal offences he had committed, in a lesser role than others, particularly as he had become involved to support his addiction. This was a matter, it was said, which would be taken account of in criminal proceedings. Reference was made to decision in R v Day (1998) 100 A Crim R 275, and R v Tulloh (Court of Criminal Appeal, unreported 16 September 1993). 18 No doubt, if it were a ground of judicial review available, the applicant could argue that the Minister's decision was so unreasonable that no reasonable person could arrive at it, having regard to the Minister's failure to take account of the evidence of Dr Clark, or rather to ignore it. That ground is not open, nor is it a ground of judicial review that weight be given to a particular matter over another, such as for example, Mr Clark's inability to guarantee that Mr Halmi would not offend. 19 For Mr Halmi to succeed in his argument, he needs to show for present purposes that the Minister's reasons bear out the proposition that the Minister has pre-judged the issue before him, that is to say that the Minister held a view at the time of making the decision to revoke Mr Halmi's visa, that because he was a person who had been convicted of an offence punishable by imprisonment, his cancellation of visa should be automatic. That is to say, that once it is demonstrated that Mr Halmi had the relevant criminal record, there was no further discretion to exercise. 20 The evidence, however, does not suggest that the Minister held that view, whether or not he may have held it at the time of Jia's case. There are two matters which must be referred to. The first is that since the date of the letter and interview the Minister made a ministerial direction under s 499 of the Act. While it is true that the direction technically may not bind the Minister himself, it is obvious enough that in the instructions in the direction make it quite clear that what is involved in an exercise of discretion under s 501 is a balancing of considerations. 21 Second, there is the statement of reasons of the Minister himself given in respect of the decision under attack. It is clear from a perusal of the statement of reasons that at the time of making the decision, the Minister did not take the view that merely because Mr Halmi did not pass the character test, the visa should be revoked. To the contrary, the Minister considered a range of matters set out in the statement of reasons in exercising his discretion. 22 In my view the applicant has not shown that in exercising the discretion the Minister acted by pre-judging the issue in a way that a consideration of the facts would not change the outcome. I should say that for the applicant to succeed in showing bias it would be necessary to reach a conclusion that the statement of reasons which were given for the cancellation of Mr Halmi's visa were in essence a sham and that the Minister had done no more than pay lip service to the requirement that he provide reasons and had in essence fabricated those reasons. This is a conclusion that I would not lightly draw. In my view the first ground of application is not made out. 23 The application particularises in respect of the error of law involving interpretation, the following matter: "The Respondent failed to consider the principles set out in Article 23 of the International Covenant on Civil and Political Rights that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. He failed to take into account the genuine nature of the marriage between the Applicant and his wife, and the hardship the deportation would cause to the immediate family as a whole." 24 It may be noted that the ground differs somewhat from the ground previously sought to be argued and rejected by me on an interlocutory basis that the Minister had erred in failing to consider Article 23 of the International Covenant on Civil and Political Rights ("the Covenant"). The matter is now put on the basis that in some way the Minister's decision involved the Minister in incorrectly interpreting the Act. Just how the Minister's decision involved any question of interpretation of the Act in its relationship to the Covenant is not clear to me. Article 23(1) of the Covenant which mirrors the terms of Article 16(3) of the Universal Declaration of Human Rights is in the following terms: "The family is the natural and fundamental group unit of society. It is entitled to protection by society and the state." 25 It is common ground that the article is not part of the domestic law of Australia. While this is so the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 makes it clear that should a decision-maker depart from applying it, a question of procedural fairness would arise unless an appropriate notice of a proposed departure was given. As the High Court said in that case at 291: " ... ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention ..." 26 The grounds of judicial review of decisions such as the present preclude the applicant, however, from advancing an argument that the Minister in departing from the terms of Article 23 (if the Minister did so depart) could found a claim of denial of natural justice. As I pointed out on the last occasion the matter was before me, a claim that the Covenant should have been taken into account by the Minister and that failure so to do was a failure to take into account a relevant matter could likewise not succeed because such a ground is also excluded from the grounds of judicial review. No doubt it is for this reason that the submission is put on the basis that the Minister erred in law in construction of the legislation. 27 There is, however, nowhere to be seen in the Minister's decision any question of construction that would require the Minister to read the Act together with the provisions of the Covenant. The complaint of course is that the Minister, in exercising his discretion, failed to take into account the family or the consequences of his acts upon the family. However, as I have already indicated that would not of itself be a relevant ground of judicial review. In my view, there was no error of law made by the Minister in construing the Act that was related in any way to the International Covenant on Civil and Political Rights. 28 A perusal of the Minister's reasons makes it clear that the Minister considered the impact of deportation and subsequent separation on Mr Halmi's wife and also on his son. It was the Minister's view, and it is for the Minister not this Court, that these matters were outweighed by other considerations which, in the Minister's view, favoured the revocation of the visa. Having regard to the fact that I am of the view that the ground of review sought to be made out does not arise, it is unnecessary for me to express a view whether the decision of the Minister was in conflict with Article 23. It suffices to say, as I said in my interlocutory judgment, that the Minister's decision, far from giving protection to Mr Halmi's family as the natural and fundamental unit in society, appeared designed to tear it apart. 29 However, as there is no substance in the applicant's grounds of review, the application will be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 10 February 2000 Counsel for the Applicant: M Ramage QC, S McNaughton Solicitor for the Applicant: Andrews Solicitors Counsel for the Respondent: R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 February 2000 Date of Judgment: 10 February 2000