FEDERAL COURT OF AUSTRALIA Hussein v Minister for Immigration and Multicultural Affairs [2001] FCA 1777 MIGRATION – application for Preferential Relative (Migrant) visa – visa refused as visa applicant did not pass the character test under the Migration Act 1958 (Cth) subpar 501(6)(c)(ii) – whether the Administrative Appeals Tribunal afforded the applicant and the visa applicant procedural fairness – where material which was prejudicial to the visa applicant had been provided by the visa applicant herself Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1), 44 Migration Act 1958 (Cth) s 501 McMullen v Commissioner for Superannuation (1985) 61 ALR 189 cited Donnelly v Repatriation Commission (1987) 73 ALR 350 cited Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 cited Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 cited Kioa v West (1985) 159 CLR 550 referred to Russell v Duke of Norfolk [1949] 1 All ER 109 cited Re Refugee Review Tribunal; ex parte AALA (2000) 75 ALJR 52 cited Re Coldham; ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220 applied Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 considered MOHAMMED HUSSEIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N741 of 2001 BRANSON J SYDNEY 14 DECEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 741 OF 2001 BETWEEN: MOHAMMED HUSSEIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 14 DECEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The "appeal" be dismissed. 2. The applicant pay the respondent's costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 741 OF 2001 BETWEEN: MOHAMMED HUSSEIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON J DATE: 14 DECEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 This is an "appeal" from a decision dated 20 April 2001 of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Deputy President Block, whereby the Tribunal affirmed a decision of a delegate of the respondent to refuse to grant Saliman Naz Hussein a permanent residency visa under subclass 104 (Preferential Family) of the Preferential Relative (Migrant) (Class AY) visa. An appeal to this Court from a decision of the Tribunal is an appeal on a question of law (s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act")). On 6 July 2001 the Chief Justice directed that the appeal be heard by a single judge. 2 By an application dated 5 May 1998 Saliman Naz Hussein ("the visa applicant") applied to migrate to Australia and for that purpose sought a Preferential Relative visa. She was sponsored by her father, the applicant. On 14 August 2000 a delegate of the respondent decided that the visa applicant did not pass the character test within the meaning of s 501 of the Migration Act 1958 (Cth) ("the Act") and exercised his discretion to refuse to grant a visa to the visa applicant. 3 The applicant applied to the Tribunal for review of the decision of the delegate of the Respondent. As is mentioned above, the Tribunal affirmed the decision of the delegate of the respondent. 4 For the reasons set out below, I have concluded that the appeal to this Court should be dismissed. statutory provisions 5 Section 501 of the Act relevantly provides: "(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … (6) for the purposes of this section a person does not pass the 'character test' if: (a) the person has a substantial criminal record (as defined by subsection (7); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise the person passes the 'character test'." DECISION OF THE TRIBUNAL 6 The written reasons of the Tribunal set out in full a statement of facts and contentions dated 23 January 2001 lodged by the respondent. This statement makes it plain that the respondent contended before the Tribunal that the visa applicant did not pass the character test because of her past and present general conduct (see subpar 501(6)(c)(ii) of the Act). The conduct alleged to be relevant was identified in the following paragraph of the statement: "The Respondent contends that Ms Hussein made a false and misleading statement in connection with entry into Australia when she stated that she was married in her visa application form lodged on 4 July 1997. She supported this by attaching a marriage certificate and a letter from Mr Vali purporting to be approval from her husband, allowing Ms Hussein and her daughter to travel to Australia. Ms Hussein signed the declaration on the form stating that the information provided was complete and correct when she knew that she had been granted a decree absolute in her divorce proceedings with Mr Vali on 6 March 1997." 7 The respondent on 10 April 2001 lodged a further statement of facts and contentions to be read in conjunction with the earlier statement. The further statement includes the following paragraph: "On 19 December 1991, Ms Hussein (the visa applicant) lodged an application for a visitor visa with the Australian High Commission in Fiji (S1, p6). On her visa application form, Ms Hussein stated that she was married. A Statutory Declaration purportedly made by Ms Hussein's husband, Mr Pati Vali Munesh, was included with the visa application (S1, p5). In submissions lodged with the visa application, it was claimed that Ms Hussein intended to travel to Australia to visit relates for a period of one‑month (S1, p1). Ms Hussein entered Australia on 17 January 1992 on a visitor visa valid until 21 January 1992 (S12, p36). On 23 January 1992, Ms Hussein applied for refugee status. On a form that she lodged on 25 February 1992 (S6, p15), she wrote N/A in the section requiring details of her family including her husband's name and date of marriage. On 24 January 1992, Ms Hussein applied for permission to engage in employment in Australia. On the application form, she indicated that she was separated (S5, p14). On 13 May 1993, Immigration officers located Ms Hussein working at a garment factory without a permit (S12). Ms Hussein left Australia on 29 May 1993, indicating that she did not wish to continue with her refugee application (S12). Ms Hussein was granted a decree absolute in her divorce proceedings on 6 March 1997. CONTENTIONS The Respondent contends that Ms Hussein made a false and misleading statement on her application for permission to engage in employment when she stated that she was separated from Mr Munesh. Further, she made a false and misleading statement when she failed to state her marriage details on her refugee application form. The Respondent contends that her conduct in relation to her entry into Australia in January 1992, her subsequent false and misleading statements in various application forms as well as the fact that she worked without a valid work permit are demonstrative of the fact that having regard to her past and present general conduct, she is not of good character – section 501(6)(c)(ii) of the Migration Act 1958 (the Act)." 8 The Tribunal noted the evidence of the visa applicant that, when she wished to travel to Australia in 1997 to attend the wedding of her brother, she asked her cousin, Mohammed Aziz Khan ("Mr Aziz"), to help her. She said that, at the request of Mr Aziz, she signed the visa application form in blank and then Mr Aziz completed it. She claimed that it was Mr Aziz who was responsible for the false statement as to her marital status and for procuring the "consent" letter from her former husband. 9 The Tribunal's written reasons for decision go on to give consideration to other matters. The Tribunal stated: "(f) It became clear during the course of the Visa Applicant's evidence that her claims in the Protection Visa application (S6, pp. 23-30) were not true. She said that she came to Australia in 1992 on a visitor's visa (Aziz had been instrumental in obtaining it) in order to visit family. She knew at the time that she was not a refugee, and made a Protection Visa application (without a few days of her arrival) in order to enable her to stay in Australia for a few years. As regards her Protection Visa application specifically, she initially said that she had no political past and had been involved in no political activities; she later said that she was a member of a party and that she has been present at polling booths during an election in support of this party. She did have contact with authorities, but in order to seek assistance (which was obtained) in relation to adverse conduct by native Fijians. She said in her Protection Visa application that her father was the subject of conduct which could fall within the meaning of persecution; her evidence in this context was vague and contradictory; she said that her father was arrested but released within a short time; she also said that his contact with the authorities was also designed to obtain assistance. (The Applicant, when he initially gave evidence, said that nothing of this nature had occurred). (g) Her evidence as to how the Protection Visa application came into existence was even more confused and contradictory. She did not know the name of the agent who allegedly assisted with the application or where his offices were. She said at one stage that she gave him information which he wrote down; at a later stage she said that she simply signed what he had written. (The Applicant said that he was present throughout, that the agent wrote down what he was told, and that the agent was fluent in both English and Hindi, the languages used at that time by the Visa Applicant.) (h) There was even some confusion as to when the Protection Visa application was made. The evidence was that she applied for a Protection Visa within 5 days after her arrival. In fact her substantive application was made in February 1992. But this aspect can be resolved by a reference to the S Documents; on 23 January 1992 the Visa Applicant made an application for a Refugee Temporary Entry Permit and thereafter on 25 February 1992 her own application for a Protection Visa. It seems clear though, given that there was a gap of 5 days between arrival and the first application, that she came with the intention of staying. And indeed, as set out previously, her evidence was that she made the application to gain residency rights for a period of a few years. (i) She described herself as 'separated' in her Protection Visa application. At that time she was not separated. Indeed she returned to Fiji in 1993 in order to rejoin her husband. She said that she meant 'separated' in the sense that they were physically in different countries at the time ie. Australia in her case and Fiji in his case. This ingenuous explanation cannot have been truthful. (j) Of course, and as became increasingly clear, her Protection Visa application was untruthful in numerous respects. (k) The Visa Applicant also worked illegally in Australia for a period of about a year. She said that she did not know if she had a Bridging Visa which entitled her to work but that she did obtain a letter from 'the lawyer' (name unknown) telling her that she could do so. No such letter was produced. She stopped working after being found by the Respondent in illegal employment and subsequently returned to Fiji for 'personal reasons'. These personal reasons were apparently that 'an Indian woman is not separated from her husband'. She did say that her husband was involved with another woman and in effect that she had to get him back. But if so, as her subsequent separation and divorce indicated, her attempts, however genuine, were not successful." 10 The Tribunal concluded that in respect of the 1997 visa application, the visa applicant was responsible for the falsities in it, but that her responsibility was to an extent limited by the trust which she placed in Mr Aziz. The Tribunal considered, however, that the protection visa application fell into an entirely different category as it was clear that she came to Australia intending to make the application, on her own admission, in order to obtain time in Australia and that the application was false and misleading in a number of respects. The Tribunal treated the visa applicant's conduct as serious and noted that there was no evidence of recent good conduct. It concluded that it was obliged to hold that she does not pass the character test. 11 As to the appropriate exercise in the circumstances of the discretion to refuse to grant the visa sought by the visa applicant, the Tribunal concluded that her offences under migration law were serious and repeated and that it would send "entirely the wrong message" should she be granted a visa. QUESTION OF LAW 12 The notice of appeal identifies the following questions of law: "a. The right to procedural fairness and/or natural justice before the Tribunal. b. The making of a finding by the Tribunal that a Visa Applicant does not pass the character test as set out by Section 501 of the Migration Act 1958 on grounds not contained within the Statement of Facts and Contentions of the Respondent. c. The right of an applicant to particulars of an allegation or contention that the person is not of good character. d. The right of an applicant to particulars of an allegation or contention: (i) That a visa applicant has made a false and/or misleading statement; and/or (ii) That a visa applicant has committed serious offences under the Migration Act 1958." 13 The oral submissions made on behalf of the applicant made it clear that pars b, c and d above are to be understood as particulars of the question of law identified more generally in par a. It was accepted at hearing that the issue for determination on this appeal is whether the Tribunal reached its decision in disregard of its acknowledged obligation to act according to the dictates of procedural fairness. submissions 14 The applicant submitted that it was the visa applicant's protection visa application that proved crucial to the Tribunal's determination yet the only contention advanced by the respondent concerning that application was that she had failed to state her marriage details on her visa application form lodged on 4 July 1997. The applicant claimed that: "At no point was it ever alleged by the Respondent (or by the Tribunal) that the refugee claims made by [the visa applicant] were false or that any such falsity was relied on to suggest that [the visa applicant] did not pass the character test." 15 The applicant by his written submissions argued: "Character under s 501 includes past and present general conduct as well as past and present criminal conduct. This is clearly of very large import as recognised by Parliament in specifically importing the rules of natural justice except where the Minister personally makes a decision on national interest grounds under s 501(3). The subject of the character test is entitled to reasonable particularity, in relation to their general conduct, of the case to be met in the AAT. The respondent did not in its Facts and contentions nor in the findings of the Minister's delegates raise an allegation of a false refugee claim. The visa applicant had no notice of that allegation. She and her father were ambushed." consideration 16 It was not disputed that the Tribunal was required to observe the rules of natural justice and in particular to afford the applicant procedural fairness (McMullen v Commissioner for Superannuation (1985) 61 ALR 189; Donnelly v Repatriation Commission (1987) 73 ALR 350). Nor was it disputed that an allegation that a party before the Tribunal was not afforded procedural fairness will raise a question of law within the meaning of s 44 of the AAT Act (Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 per Davies J at 484; Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 per Weinberg J at 495). However the respondent contended that the Tribunal had not failed to afford the applicant procedural fairness. 17 As Brennan J pointed out in Kioa v West (1985) 159 CLR 550 at 612: "The principles of natural justice have a flexible quality which, chameleon like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power." Nonetheless, a fundamental aspect of the rules of natural justice is that a party be given a reasonable opportunity of presenting his or her case (Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Kioa v West esp per Brennan J at 613-615, Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57; 75 ALJR 52 per Gleeson CJ at [4], Gaudron and Gummow JJ at [78]; McHugh J at [101], Kirby J at [128]). 18 However, what constitutes a reasonable opportunity of presenting a party's case before an administrative decision-maker may differ from what constitutes a reasonable opportunity of presenting a case before a superior court. In Kioa v West at 628-629 Brennan J said: "Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary [[1981] AC at 97]: 'To "over-judicialise" the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair'." 19 Moreover, in Re Coldham; ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220 Gaudron J observed: "As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the Tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'." 20 In reviewing the decision of the delegate of the respondent, the Tribunal stood in the shoesof the respondent, or his delegate, and was required to make its own decision on the material before it (Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409). 21 The procedure to be adopted by the Tribunal was governed by s 33(1) of the AAT Act which relevantly provides: "In a proceeding before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the procedure shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate." 22 The administrative nature of the task being performed by the Tribunal, and the procedure which it was bound to adopt, meant that it would have been wrong for the Tribunal to have treated the respondent's statement of facts and contentions, and his further amended statement of facts and contentions, as akin to pleadings in a court of justice. The decision which the Tribunal was called upon to make had a clear public interest aspect and the Tribunal could not allow the parties, or either of them, to restrict the material otherwise relevant to its inquiry which it could consider. 23 The written reasons for decision of the Tribunal indicate that it was during the course of the visa applicant's evidence that it became clear to the Tribunal that her claims in her protection visa application were untruthful in a number of respects and that she had made the application in order to enable her to stay in Australia for a few years. I understand this aspect of the Tribunal's reasons for decision to indicate that it was the evidence of the visa applicant herself upon which the Tribunal relied in concluding that her application for a protection visa was "false and misleading in a number of important respects". That is, it was not material of which the visa applicant was previously unaware or which could have taken her by surprise. It was not suggested that the knowledge of the visa applicant should be considered separately from the knowledge of the applicant. Indeed, in my view, in a case of this kind the interests of the applicant and the visa applicant are ordinarily to be understood as being identical and the knowledge and tactical decisions of the one are ordinarily to be imputed to the other. 24 Although the visa applicant could not have been taken by surprise by her own evidence, it is possible that she and the applicant were not immediately aware of the use which the Tribunal proposed to make of her evidence. I note, however, that neither of them gave evidence that he or she was taken by surprise by the use which the Tribunal made of the visa applicant's evidence or of what he or she would have done had he or she been placed on notice of the use which the Tribunal proposed to make of her evidence. 25 It was contended by the respondent that Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 (FC) ("Sinnathamby") is authority for the proposition that procedural fairness does not require a decision‑maker to give a party a chance to comment on the view that he or she takes of the material put forward by that party. 26 In Sinnathamby Fox J at 506 said: "In Kioa's case, the material held to require that a chance be given to comment had come from a source other than the applicant. In the present case … the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision‑maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision‑maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him. I agree with his Honour that there was no denial of natural justice in this respect." Neaves J expressed a similar view at 513. Burchett J, in dissent, at 517-518 expressed the view that it was necessary in that case for the decision‑maker to draw to the appellant's attention the critical issue or factor upon which the administrative decision is likely to turn so as to allow her an opportunity of dealing with it. 27 In my view, the lodging by the parties in this case of statements of facts and contentions distinguishes this case from Sinnathamby. Although the statements did not restrict the material that it was open to the Tribunal to consider, it can be inferred that the applicant understood that the statements identified the critical issues or factors upon which the Tribunal's decision would turn. Unless the applicant was placed on notice, either expressly or implicitly, that additional issues or factors were regarded by the Tribunal as of importance, the applicant might not have regarded it as appropriate to respond to them. 28 The problem which the applicant faces on this appeal is there is no evidence before the Court to suggest that the Tribunal failed to place the applicant on notice as to the significance which it attached to the visa applicant's evidence concerning her protection visa application. 29 The reasons for decision of the Tribunal tend to suggest that some time was spent exploring with the visa applicant precisely what she did say about the earlier protection visa application. Reference is made to her giving conflicting evidence and to her evidence on the topic of conduct which could fall within the meaning of persecution being "vague and contradictory". It appears from the Tribunal's reasons for decision that the visa applicant was questioned in some detail as to the circumstances in which the protection visa application came into existence. Having regard to the fact that the applicant had legal representation before the Tribunal, it would seem to be a fair inference that the applicant was placed on notice by the course that the hearing took that the Tribunal regarded the visa applicant's conduct in connection with her protection visa application as of importance for the purposes of s 501 of the Act. It may, indeed, be the case that the applicant was expressly advised by the Tribunal of the very matter which the Tribunal regarded as important so far as subpar 501(6)(c)(ii) of the Act was concerned. The applicant chose not to place the transcript of the hearing before the Tribunal in evidence before the Court. However, for present purposes I place that possibility to one side. 30 The inference that the applicant was on notice that the Tribunal regarded the visa applicant's conduct in connection with her protection visa application as relevant for the purposes of s 501 of the Act is strengthened by the fact that the Tribunal's reasons for decision reveal that the solicitor for the applicant sought, and was granted, permission to re‑open his examination in chief of the applicant. This apparently occurred after the evidence of the visa applicant had been completed. The evidence given by the applicant on his resumed examination was to the effect that he had been examined by the Fijian authorities concerning matters of a political nature. This evidence could only, it would seem, have been relevant to the topic of the visa applicant's earlier application for a protection visa. No application is recorded as having been made to re‑open the examination of the visa applicant to further explore the issue of her application for a protection visa. Nor is it suggested that the solicitor for the applicant sought an adjournment of the hearing before the Tribunal to allow the applicant, or the visa applicant, further time to address what the solicitor clearly recognised to be an important matter, namely the evidence of the visa applicant concerning her earlier application for a protection visa. Indeed, as the transcript of the hearing before the Tribunal was not placed before the Court, it is theoretically possible that the applicant was offered time to consider his position with respect to the visa applicant's evidence but declined to take it. 31 In my view the applicant has failed to establish that the Tribunal reached its decision in disregard of the dictates of procedural fairness. On the evidence before the Court, I am not satisfied that the Tribunal failed to draw to the applicant's attention, within a timeframe which was reasonably sufficient for the purpose of allowing the applicant to deal with it, the critical issue or factor upon which the Tribunal's decision turned. That is, I am not satisfied that the applicant was not given a reasonable opportunity of presenting his case. conclusion 32 The "appeal" will be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson J. Associate: Dated: 14 December 2001 Counsel for the Applicant: Mr J R Young Solicitor for the Applicant: Simon Diab & Associates Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 13 November 2001 Date of Judgment: 14 December 2001