Minister for Immigration And Multicultural Affairs v Jia Legeng

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS  APPELLANT

AND

JIA LEGENG   RESPONDENT

Minister for Immigration and Multicultural Affairs v Jia
[2001] HCA 17
29 March 2001
P43/2000

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.

On appeal from the Federal Court of Australia

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)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS   RESPONDENT

EX PARTE JIA LEGENG   PROSECUTOR

Re Minister for Immigration and Multicultural Affairs; Ex parte Jia
29 March 2001
P77/2000

ORDER

Application dismissed with costs.

Representation:

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

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

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS  APPELLANT

AND

TE WHETU WHAKATAU WHITE   RESPONDENT

Minister for Immigration and Multicultural Affairs v White
29 March 2001
P74/2000

ORDER

1.   Appeal allowed.

2.   Appellant to pay respondent's costs of the appeal.

3.   Set aside the orders made by the Full Court of the Federal Court on 8 March 2000 and in place thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

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)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS   RESPONDENT

EX PARTE TE WHETU WHAKATAU WHITE                    PROSECUTOR

Re Minister for Immigration and Multicultural Affairs; Ex parte White
29 March 2001
P81/2000

ORDER

Application dismissed with costs.

Representation:

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

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

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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".

Constitution, s 75(v).
Migration Act 1958 (Cth), ss 476, 501, 502.

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.

   [1]See Abebe v The Commonwealth (1999) 197 CLR 510.

   [2]Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52; 176 ALR 219.

   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.  The Minister set out to have it overturned.

12. The Minister appealed to the Federal Court.  The appeal was allowed by Carr J, but upon a limited basis.  Carr J concluded that, in certain respects, Deputy President Barnett had acted in breach of the rules of procedural fairness.  In particular, he had failed to give proper notice to the Minister of the use he intended to make of certain material that he took into account in his decision.  The matter was remitted to the Tribunal.

13. In March 1997, Deputy President Barnett again considered the case.  He came to the same conclusion.  He set aside the delegate's decision and remitted the matter to the Minister with a direction that Mr Jia qualified for obtaining a visa on the basis that he was of good character.  That decision was made on 14 March 1997. 

14. On 14 April 1997, officers of the Department of Immigration and Multicultural Affairs prepared a background brief for the use of the Minister as required.  It was not prepared under his instructions.  The issue addressed by the brief was media criticism of the decision of the Tribunal in the case of Mr Jia. 

15. It was an agreed fact in the subsequent Federal Court proceedings that, at the time the background brief was prepared, the Minister held the following opinion[3]:

    1.That "most Australians would find it difficult to reconcile a six and a half year jail sentence for rape with a finding by a Deputy President of the [Tribunal] that the person concerned is of good character".

    2.That "this latest [Tribunal] decision has essentially rejected the court's finding of culpability by finding Mr Jia's behaviour leading to the offences justifiable because of the rape victim's conduct towards him and his own reasonable or unreasonable feelings of jealousy".

    3.That "the government is concerned about the emerging trends for tribunals to discount the importance the government attaches to character issues".

    It was agreed that the Minister did not publicly express those opinions, that his state of mind was that he had difficulty in accepting the line of reasoning taken by the Tribunal, and that he was sure that most Australians would be surprised that a non-citizen with such convictions had been found to be of good character.

    [3]Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 95 (emphasis removed).

16. The opinions referred to in 1 and 2 above were reasonably open.

17. On 14 April 1997, the Minister was interviewed on radio.  The interviewer expressed concern about the decision of the Tribunal.  The Minister said he was unhappy with the way in which the Tribunal had been dealing with a number of immigration matters, and that he had asked the Joint Committee on Migration of the Parliament to look into the question of criminal deportation.  He discussed the legislative provisions relating to character.  The interviewer asked what the law provided as to whether a person was of good character.  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.  The law does actually write down that that is the test and it adds another test … if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character."

18. When asked, in effect, what he could do about it, the Minister said:

    "I'm considering what steps I can take and there are some avenues.  One of the suggestions that's been made is that I could in fact grant the visa and then cancel it on character grounds.  I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential cost might be to the community if it opens up a whole host of other possible appeals to the Federal Court."

19. On 15 April 1997, the Minister lodged an appeal to the Federal Court against the second decision of the Tribunal, but that was subsequently withdrawn.

20. On 23 April 1997, a departmental officer sent a minute to the Minister setting out the options available to him.  They were said to be:

    "1.To further appeal to the Federal [C]ourt on matters of law; or

    2.To proceed to visa grant but for you then to decide to intervene and personally cancel the visa under section 501 of the Migration Act on the basis that Mr Jia is not of good character; or

    3.To accept the [Tribunal's] decision and finalise the assessment of Mr Jia's application."

21. The departmental minute said:

    "In any litigation arising from decisions by you to cancel Mr Jia's visa and to declare him an excluded person, you could be called to give evidence and be subject of close scrutiny.  You could well be called upon to give evidence about your views as to Mr Jia's character and be subject to cross-examination about the justification of your decisions and to rebut any possibility of grounds of bias or improper purpose being made out."

22. The minute stated that a decision to cancel Mr Jia's visa and to declare him to be an excluded person would indicate to the community the Government's concern about the acceptability of the Tribunal decision in the national interest, and reflect its determination that a non-citizen with a history of criminal conduct and an apparent disregard for the law should not remain in Australia.

23. On 23 May Mr Jia was granted a Transitional (Permanent) Visa. He was also informed that the Minister was personally considering his powers under ss 501 and 502. Mr Jia was invited to comment and provide any information he might consider relevant.

24. In the meantime, there had been an exchange of correspondence between the Minister and the President of the Tribunal.  On 30 April 1997, the Minister replied to a letter written by the President of the Tribunal, which was not in evidence.  It is obvious from the opening words of the Minister's letter that his letter was written in response to an expression of concern by the President about comments attributed to the Minister in a newspaper article.  What the President wrote in expressing those concerns does not appear from the evidence.  In particular, the evidence does not show whether, and to what extent, the President invited the Minister to explain his criticisms of the way in which the Tribunal went about its business.  The Minister's letter elaborated on his concerns about recent decisions of the Tribunal.  The letter said:

    "That persons such as Mr Jia can be found to be of 'good character', despite his recent conviction for a serious crime undermine[s] the Government's ability to control entry into Australia on character grounds. I am concerned that this may set a precedent for decisions by the [Tribunal] in the future. To allow this to pass without condemnation would increase the threshold for decisions relating to character considerations. Although I recognise that [Tribunal] decisions are not precedential, as a matter of law, such decisions may be viewed by the Tribunal and officers in determining the character requirements under s 501 as the acceptable standard. It would undermine the Government's desire to protect the Australian community."

25. There is another paragraph in the letter which is of significance.  It said:

    "The seriousness of the crime, which is an important consideration, does not appear to have been given sufficient weight in the Tribunal's deliberations. Where the courts have determined that a substantial period of imprisonment was appropriate for the crime committed, the seriousness of the crime is a primary consideration. Crimes involving violence and drugs are regarded as particularly abhorrent and are viewed as significant in the consideration under the character and deportation provisions of the Act."

26. The terms of that paragraph are inconsistent with a view that conviction of a significant crime automatically, and without consideration of any other circumstances, produces the consequence that a person is not of good character.  The references to the "seriousness of the crime", "an important consideration", "a primary consideration", and "sufficient weight" all imply judgment and evaluation.

27. In concluding his letter, the Minister stated that the community looks to him as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia. 

28. On 27 May 1997, the Minister discontinued the appeal to the Federal Court.

29. On 6 June 1997, an officer of the department sent a minute to the Minister for consideration of whether the Minister wished to act, under ss 501 and 502 of the Act, to cancel Mr Jia's visa and to declare him to be an excluded person.

30. The minute outlined the facts of the case, including Mr Jia's convictions which had resulted in his imprisonment, and his other convictions for lesser offences.  It referred to the decisions of the Tribunal.  It pointed out that the Tribunal had twice found Mr Jia to be of good character, and had found that he had received strong and continuing support from Australian citizens and residents who knew him.  Reference was made to the hardship that Mr Jia might suffer if required to leave Australia.  Again, all this is inconsistent with a view that there is no occasion to look beyond the fact of a criminal conviction.  Although the minute leaned in favour of cancellation, it did not make any firm recommendation in that regard.  The Minister's decision, which was dated 10 June 1997, was endorsed on an attachment to the minute.  It was to the effect that Mr Jia was not of good character, that the discretion to cancel his visa would be exercised, and that he was to be declared an excluded person and that a certificate to that effect would be signed.

31. Mr Jia then commenced proceedings in the Federal Court for a review of the Minister's decisions pursuant to s 476 of the Act.

    Mr Jia's proceedings in the Federal Court

32. Section 476 of the Act provides that application may be made for review by the Federal Court of certain decisions, which include decisions under ss 501 and 502, on specified grounds. For present purposes, the relevant grounds are that the decision was induced or affected by fraud or by actual bias (s 476(1)(f)), that the decision involved an error of law (s 476(1)(e)), that the decision was not authorised by the Act (s 476(1)(c)) or that the decision was an improper exercise of power (s 476(1)(d)).

33. The primary ground relied upon by Mr Jia was that the Minister's decisions were induced or affected by actual bias.  That was the ground upon which he ultimately succeeded in the Full Court of the Federal Court.  As to the other grounds, it suffices to mention at this stage that there is a Notice of Contention to which it will be necessary to return in due course.

34. The matter came before French J at first instance in the Federal Court[4].  He decided against Mr Jia on all grounds that were argued.  For the moment, it is convenient to deal only with the ground of actual bias.

    [4](1998) 84 FCR 87.

35. French J said that actual bias, within the meaning of s 476, "must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made."[5]

    [5](1998) 84 FCR 87 at 104.

36. His Honour cited, with approval, judicial statements to the effect that, where there is a claim of actual bias involving prejudgment, the applicant must show that the decision-maker "had a closed mind to the issues raised and was not open to persuasion by the applicant's case"[6], and that actual bias exists where "the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant"[7].

    [6]Wannakuwattewa v Minister for Immigration and Ethnic Affairs unreported, Federal Court of Australia, 24 June 1996 at 4 per North J.

    [7]Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134 per North J.

37. French J found that the evidence indicated that the Minister had formed, on the basis of Mr Jia's convictions and sentence, a view strongly adverse to the conclusion that he could be described as a person of good character.  However, he said, the question was whether, by his mental state, the Minister was disabled from or unwilling to have regard to other relevant circumstances.  French J expressed his conclusions as follows[8]: 

    "The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus.  The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.

    The Minister's case may not have been helped by his public discussion of Mr Jia's case on radio in a way that exposed his views adverse to Mr Jia.  For the hypothesis is then open that having taken a public position on what is undoubtedly a politically sensitive case the Minister would find it difficult to appear to resile from that position.  On the other hand, he did leave himself an escape route in the radio interview referring as he did to the need to 'weigh up' whether it was proper for him to adopt the procedure of granting the visa and then cancelling it on character grounds.  Moreover, the Minister is an elected official, accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which, it is common knowledge, is a matter of continuing public interest and debate.

    The department had provided the Minister with a comprehensive minute in advance of his decision which drew attention to factors both adverse and favourable to Mr Jia.

    The Minister's criticism of the [Tribunal] related not just to the Jia case but was placed in a wider context of concern about his perception of a trend in Tribunal decision-making.  He was entitled to make those observations and to draw them to the attention of the Tribunal President.  In assessing the standards of behaviour required of the Minister it is important to bear in mind that he is not acting as a judge or tribunal but as an administrative decision-maker implementing government policy.

    While it is clear that the Minister had strong views about Mr Jia's case, I am not satisfied that those views precluded him from the consideration of all the relevant circumstances so as to constitute actual bias inducing or affecting the decision within the meaning of s 476(1)(f)."

    [8](1998) 84 FCR 87 at 106-107.

38. Mr Jia appealed to the Full Court of the Federal Court.  The appeal was heard before Spender, Cooper and R D Nicholson JJ[9].

    [9]Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556.

39. All three members of the Full Court accepted the test of actual bias applied by French J.  Cooper J held that no error had been shown in the decision of French J.  He said that it was open to French J to find that the Minister, although holding strong, even incorrect, views, in April 1997, was still concerned to do what was proper in respect of the appellant.  He also found that it was open to French J, having regard to all the circumstances that existed in June 1997, not to be satisfied that the Minister either consciously or unconsciously acted contrary to the advice and without regard to the material placed before him because he had a closed mind on the issue of the appellant's character.  Spender and R D Nicholson JJ were of a contrary opinion.

40. Spender J considered that the evidence went beyond showing merely that the Minister had strong views about Mr Jia's case.  He thought that the evidence showed that the Minister believed that persons convicted of serious crime were persons of bad character.  He referred to the statement to that effect in the radio interview.  This, his Honour said, was not an expression of a preliminary view, capable of alteration, or the statement of a general rule subject to exception in the particular circumstances of a case.  Spender J said[10]:

    "Section 501(2) does not equate significant past criminal conduct with the absence of good character.  That was the view of the Minister.  That view is wrong.  That view means that the Minister's decision that Mr Jia was not of good character is affected by actual bias."

    [10](1999) 93 FCR 556 at 567.

41. Spender J considered that his conclusion was reinforced by the terms of the letter written by the Minister to the President of the Tribunal.  He also strongly criticised the Minister for writing the letter.  He said[11]:

    "In my respectful opinion, the Minister, who is after all frequently one party to a hearing in the Tribunal, is not entitled to pressure the Tribunal into accepting his view, particularly one which is in my opinion so fundamentally mistaken.  The Tribunal is supposed to be independent, and that independence is put seriously at risk if a Minister thinks and acts as if he is entitled to lobby the Tribunal to reach a conclusion which is his preferred (and in this case mistaken) view of the law."

    [11](1999) 93 FCR 556 at 568-569.

42. That characterisation of the Minister's letter to the President was made in the following circumstances.  The letter was an answer to a letter written to the Minister by the President of the Tribunal.  The Federal Court did not have before it either the letter written by the President to the Minister, or any information as to the terms of that letter except such as might be inferred from the Minister's reply.  To describe the letter from the Minister to the President as an attempt "to pressure the Tribunal into accepting his view", or engaging in lobbying the Tribunal to reach a particular conclusion, is unwarranted.  Without knowing what the President wrote to the Minister, it is not possible fairly to make such an evaluation of the Minister's response.

43. R D Nicholson J, after having expressed agreement with French J's formulation of the test for actual bias, went on to consider the inferences to be drawn from the evidence.  His Honour said[12]: 

    [12](1999) 93 FCR 556 at 602-603.

    "In my opinion the inferences to be drawn from all the circumstances relied on for the appellant including particularly the respondent's statement on radio on 14 April 1997 and his letter to the President of the Tribunal was that the respondent's view had passed the point of strong prejudgment and reached the point where the respondent was precluded from consideration of all the relevant circumstances in relation to the appellant.  The conclusive circumstances for the drawing of this inference are: 

    (1)The expression of belief by the respondent that a person (which must include the appellant) could not be of good character if they have committed significant criminal offences.  The reference to 'weighing up' was only directed to the propriety of the course proposed, not to the circumstances relevant to the appellant.

    (2)The respondent considered that if the appellant was found to be of good character the Government's aims would be undermined.  The respondent as a Minister of the Crown could not therefore embark on a course in relation to the appellant which he considered had that effect. 

    (3)The Tribunal's decision should not set a precedent for the future.  The respondent thereby ruled out that he would act to the same effect in the future in relation to the appellant.

    (4)The Tribunal decision warranted condemnation.  The respondent would not therefore have embarked on a course in relation to the appellant which he considered brought that result.

    (5)The Tribunal's decision involved a misconstruction of the tests in relation to character decisions.  The respondent would not therefore have been prepared to apply the subsection in possible favour of the appellant as the Tribunal had done.

    By those expressions and statements the respondent precluded himself from any possible acceptance of the view that the appellant could be found now to be a person of good character despite his past criminal record.  The balanced character of the departmental memoranda to him cannot disguise the position which the evidence shows the respondent had reached in his mind.

    The drawing of these inferences, for which the appellant bears a heavy onus, is aided by the application of the Jones v Dunkel principle applied to the absence of any evidence from the respondent when issues were raised on the evidence for him to answer. …

    Conscious again of the heavy onus necessary to establish actual bias, I therefore conclude the primary judge failed to draw inferences which should have been drawn.  I would allow the application for review on the ground of actual bias."

44. The Minister now appeals to this Court against the decision of the Full Court of the Federal Court.

    The background to Mr White's case

45. Mr White was born in New Zealand.  In 1987, at the age of 19, he took up residence in Australia.

46. Before his arrival in Australia, Mr White had incurred a number of convictions in New Zealand for relatively minor offences.  He had never been sentenced to a term of imprisonment.  Between December 1988 and October 1989, whilst living in Western Australia, he incurred eight convictions, all for relatively minor offences.  They included instances of disorderly and violent behaviour.  In no case was a custodial sentence imposed.  In September 1991, while on a return visit to New Zealand, he was convicted of being an unlicensed driver with an excessive blood alcohol level.  He was ordered to do 150 hours of community service and disqualified from holding a driver's licence for one year.  He was also charged with other offences, but those charges never came to a hearing.  He returned to Australia.

47. In June 1993, while Mr White was employed at Katherine in the Northern Territory, he and a number of Maori companions became involved in a drunken brawl with a group of Aboriginals.  The fighting began in a hotel and extended to a street.  At one stage, Mr White was armed with a small bat.  He and a number of his companions attempted to drive off in a car, but they were dragged back by several Aboriginal men and fighting resumed.  Mr White climbed back into the car, and then used it as a weapon.  He drove into one member of the Aboriginal group and knocked him to the ground.  He then turned the vehicle around and aimed it at the same man who had just managed to stand up.  He drove the car into him again.  He then continued to drive down the street at speed, veering to the incorrect side of the road, and ran down another Aboriginal man who had been involved in the fight.  Next, he turned back along the main street, and drove at speed towards two Aboriginal women.  He knocked one of them down, and she suffered a broken arm.  The other woman was killed.  The car then hit a pole.  Mr White got out and fled down the street.  As a result of that incident, he was convicted of manslaughter in March 1994 and sentenced to imprisonment for four years.  He was also convicted of three offences of committing an aggravated dangerous act and sentenced to imprisonment for two years.  All sentences were to be served concurrently.  He was released from prison, in June 1994, presumably on parole.

48. In April 1996, Mr White, while driving a vehicle without a licence, and while intoxicated, had a head on collision with another motor vehicle.  Passengers in both vehicles suffered serious injuries.  In February 1997 following a plea of guilty, he was convicted of two offences of dangerous driving causing grievous bodily harm.  He was sentenced to imprisonment for 12 months, but the sentence was suspended.  He also pleaded guilty to a number of lesser offences arising out of the same incident.

    The proceedings concerning Mr White

49. Division 9 of Pt 2 of the Act provides for deportation of non-citizens in certain circumstances. Section 200 empowers the Minister to order deportation of a non-citizen to whom Div 9 applies. Section 201 provides, so far as presently relevant, that a non-citizen, who has been a permanent resident of Australia for less than ten years when he committed offences for which he was sentenced to at least one year's imprisonment, is a person to whom s 200 applies. On 9 January 1998, a delegate of the Minister, acting pursuant to s 200, made a deportation order against Mr White.

50. That decision was subject to merits review by the Tribunal.  On 21 May 1998, the Tribunal set aside the decision and remitted the matter to the respondent (described as the Department of Immigration and Multicultural Affairs) for review "with a direction that the applicant not be deported".  It is unnecessary to examine the reasons for that decision, which included a view that, on balance, deportation would involve hardship to Mr White and his relatives.

51. On 13 August 1998, an officer in the department wrote to Mr White drawing his attention to the powers of the Minister under ss 501 and 502 of the Act. At that stage, Mr White held a Special Category Visa which had been granted to him on 31 January 1992. He was warned that consideration was being given to the cancellation of that visa and to the making of a declaration that he be an excluded person. He was invited to comment if he wished. He made written submissions in response.

52. On 14 October 1998, a departmental minute was sent to the Minister. It canvassed the matters relevant to an exercise of the Minister's powers under ss 501 and 502. It did not treat Mr White's criminal conviction as automatically establishing bad character. On the contrary, the Minister was informed that he would need to consider, not only Mr White's convictions, but also matters tending to show rehabilitation or good character. Reference was made to his voluntary work for a religious organisation, his search for employment, his statement that he no longer consumed alcohol, and his claim that he was channelling his energies into lawful and healthy recreational pursuits. The Minister was informed that it was open to him to find that Mr White was not of good character. It was not said that he was bound to make such a finding, and the material provided to the Minister was inconsistent with such a suggestion. Issues relevant to the exercise of the Minister's discretion under ss 501 and 502 were canvassed. The Minister was asked to indicate whether he found that Mr White was not of good character, whether he exercised his discretion to cancel Mr White's visa, and whether he would issue a s 502 certificate. The Minister marked and signed the minute in such a way as to indicate that he decided each of those questions adversely to Mr White.

53. On 14 October 1998, the Minister signed a certificate recording his decision under s 501 and his declaration under s 502. On 22 October 1998 Mr White was informed of the decision and declaration, of his limited rights to apply for another visa, and of his right to seek a review of the decision by the Federal Court. He applied to the Federal Court. The grounds, and the amended grounds, upon which he sought review are not presently relevant. They were all considered and rejected by French J, who gave his decision on 21 May 1999[13]. 

    [13][1999] FCA 690.

54. There was then an appeal to the Full Court of the Federal Court.  The grounds of appeal were amended pursuant to a notice dated 14 July 1999.  Neither the original nor the amended grounds contained any matter of present relevance.  On 15 July 1999, the Full Court of the Federal Court delivered its judgment in Jia v Minister for Immigration and Multicultural Affairs[14].

    [14](1999) 93 FCR 556.

55. The appeal to the Full Court was heard before Ryan, North and Weinberg JJ.  They delivered reasons for judgment on 22 October 1999.  In those reasons they considered and rejected all the original and amended grounds of appeal.  Their reasons for doing so are not presently material.  However, they pointed out that, in the course of argument, the appellant had sought to raise a claim of bias, based upon the decision in Jia.  Without deciding the matter at that stage, they gave leave to the appellant to raise this new point.  In order to give the parties an opportunity to file further evidence, they adjourned the further hearing.  The further evidence filed was principally directed to providing information as to the facts and proceedings in Jia and formally proving what was in evidence in that case.  There was also evidence explaining why the appellant had not raised the point earlier.  In brief, it was said that there had not been an opportunity to consider the decision in Jia until shortly before the hearing of the appeal.

    The decision of the Full Court of the Federal Court concerning Mr White

56. In their joint reasons for judgment, given following the further hearing proposed in the reasons of 22 October 1999, the members of the Full Court dealt with the contention of actual bias based upon the facts that had emerged in Jia and the decision in that case.  There was a dispute as to whether the appellant should be given leave to amend his grounds of appeal and adduce further evidence.  That issue was resolved in the appellant's favour.  There is a challenge to that aspect of the decision, but it is convenient to leave it to one side for the moment.

57. Turning to the further evidence, and particularly to the evidence about the events the subject of the decision in Jia, the Full Court referred to the Minister's radio interview of 14 April 1997, in which he had said that he did not "believe you are of good character if you've committed significant criminal offences involving penal servitude", and to his letter of 30 April 1997 to the President of the Tribunal.  The conclusions drawn by Spender J and R D Nicholson J in Jia on the basis of that evidence were noted.  Reference was then made to the leave that had been given to the Minister to adduce further evidence.  Pursuant to that leave, a solicitor had given evidence of a Statement of Agreed Facts which had been before the court in Jia, in which the opinions held by the Minister at various times were set out.

58. Their Honours considered the test to be applied to determine actual bias where, as here, it was said to have taken the form of prejudgment.  In particular, they referred to the test that had been applied in Jia.  They said that "it was plainly open to the majority in Jia to infer that [the Minister] was incapable of persuasion that the [Tribunal's] line of reasoning was acceptable when he came to decide … whether Mr Jia was of good character".  It was said to be open to the appellant to rely on the reasoning of the majority in Jia to draw an inference as to what the Minister's state of mind was on 10 June 1997, that being a fact relevant to a conclusion as to the Minister's state of mind on 14 October 1998.  There was then discussion of the general rule that one Full Court should follow an earlier decision of another Full Court.  Next, there was reference to Jones v Dunkel[15] and to the Minister's failure to give evidence as to his state of mind in October 1998.  That failure was said to make it easier to draw an adverse inference against him, both in relation to his state of mind in June 1997 and as to his state of mind in October 1998.  After concluding that the factual inference drawn by the majority in Jia was correct, their Honours said that no facts had emerged to support an inference that the Minister's view had changed between June 1997 and October 1998.  He had not given evidence that he did not have the closed mind imputed to him by the majority in Jia. On that basis, a finding of actual bias was made, and the decisions of 14 October 1998 under ss 501 and 502 of the Act were set aside.

    [15](1959) 101 CLR 298.

    The statutory framework

59. Part 2 of the Act deals with the control of the arrival and presence in Australia of non-citizens. Section 29 provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia. There is a legislative scheme covering application for a grant of visa, and for the detention and deportation of non-citizens who are present without lawful permission. Parts 5, 6, 7 and 8 deal with review of decisions relating to immigration matters. There are procedures for internal review, and for external review. Some such procedures involve full merits review, and others involve review on limited grounds. Part 8 deals with review by the Federal Court. Section 475 specifies the decisions that are, and those that are not, judicially reviewable. It has been common ground that the decisions, under ss 501 and 502, made in the present cases, were judicially reviewable. The grounds upon which judicial review in the Federal Court is available are set out in s 476. Reference to these has already been made.

60. Part 9 of the Act contains provisions that are described as miscellaneous. They include ss 501 and 502, which, at the relevant time, were in the following terms:

    "501(1)      The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

    (a)      subsection (2) applies to the person; or

    (b)the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

    (i)be likely to engage in criminal conduct in Australia; or

    (ii)vilify a segment of the Australian community; or

    (iii)incite discord in the Australian community or in a segment of that community; or

    (iv)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 violence threatening harm to, that community or segment, or in any other way.

    (2)This subsection applies to a person if the Minister:

    (a)having regard to:

    (i)the person's past criminal conduct; or

    (ii)the person's general conduct;

    is satisfied that the person is not of good character; or

    (b)is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

    (3)The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

    502     (1)      If:

    (a)the Minister, acting personally, intends to make a decision:

    (i)under section 200 because of circumstances specified in section 201; or

    (ii)under section 501; or

    (iii)to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

    in relation to a person; and

    (b)the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

    the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

    (2)A decision under subsection (1) must be taken by the Minister personally.

    (3)If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made."

61. As the facts of the present cases show, the powers conferred upon the Minister by ss 501 and 502 form part of a statutory scheme which involves a complex pattern of administrative and judicial power, and differing forms of accountability. The Minister is a Member of Parliament, with political accountability to the electorate, and a member of the Executive Government, with responsibility to Parliament. As French J recognised in his decision at first instance in the case of Mr Jia, the Minister functions in the arena of public debate, political controversy, and democratic accountability. At the same time, the Minister's exercise of statutory powers is subject to the rule of law, and the form of accountability which that entails. In relation to an applicant for, or holder of, a visa the Minister, either personally or through a delegate, may be an initial decision-maker, a party to proceedings for administrative or judicial review, and the holder of a power of cancellation and exclusion under ss 501 and 502.

62. In R v Anderson; Ex parte Ipec-Air Pty Ltd, Kitto J said[16]:

    "It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself …  The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed."

    [16](1965) 113 CLR 177 at 189.

63. In the same case, it was also said that there is "a significant difference between a discretion given to a minister and one given to a departmental head."[17]  The context in which that difference was being considered concerned the right to act on the basis of governmental policy, the implication being that, when a power is reposed in a Minister, the statute, in the absence of an indication to the contrary, would be taken to contemplate that the Minister would be entitled, within the limits of any other constraints that may be found in the statute, to act in accordance with such policy.  There are other consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister.  Relevantly to the present case, they include the consideration that the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability.

    [17](1965) 113 CLR 177 at 202 per Menzies J.

64. As has been noted, it was common ground, in both cases, in the Federal Court, and in this Court, that the Minister's decisions under ss 501 and 502 were judicially reviewable, that the decisions would be vitiated if actual bias were shown, and that the Federal Court had the jurisdiction to set the decisions aside on that ground if the ground were established.

65. There was also a substantial measure of agreement as to the meaning and effect of s 501. Counsel for the Minister accepted that, in the application of s 501(2)(a)(i), the Minister was bound to consider whether the person in question was of good character at the time of the decision, that "character" was a matter of enduring moral qualities, that is to say, disposition rather than general reputation[18], and that past conviction of serious crime did not necessarily mean, without examination of any other matters, that a person was of bad character at the time of decision-making.  As Latham CJ put it, in In re Davis[19], "[a] man may be guilty of grave wrongdoing and may subsequently become a man of good character."  This submission was consistent with the Procedures Advice Manual made available for the use of departmental officers, and with the approach taken by the authors of the departmental minutes provided to the Minister in relation to the challenged decisions.

    [18]Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 per Lee J; Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194.

    [19](1947) 75 CLR 409 at 416.

66. Although the decision of the majority of the Full Court of the Federal Court in Jia was based on the ground of actual bias, it was in substance a finding that the Minister was invincibly committed to an erroneous view of the law, (ie that past conviction of serious crime necessarily required an adverse conclusion under s 501(2)(a)(i)). The alleged bias took the form of prejudgment which, in turn, was said to have arisen from a misunderstanding of the meaning of s 501, and a refusal to entertain the possibility of a different point of view. Since one of the grounds of review under s 476 of the Act which was both available and, at least in the case of Jia was relied upon, was error of law, it is puzzling that the matter was dealt with under the rubric of bias.  French J, at first instance, had rejected contentions both of actual bias and error of law.  His reasoning as to the former is set out above.  As to the latter, he referred again to the comment made by the Minister in his radio interview of 14 April 1997 and said[20]: 

    "If that be a misstatement of the law the making of an erroneous statement in the course of a radio interview is not, in my opinion to be given any particular weight in inferring that the Minister's acted upon an erroneous view in making the decision to cancel a visa particularly having regard to the direction and assistance he received from the Departmental minute."

    [20](1998) 84 FCR 87 at 108.

67. In the Full Court, Spender J did not find it necessary to deal with the ground of error of law.  However, his conclusion of actual bias, set out in a passage quoted above, related the bias to erroneous prejudgment of a matter of law.  R D Nicholson J noted the argument that the Minister was operating under a mistaken view of the law, in that he considered a person who was convicted of a serious crime could not as a matter of law be a person of good character.  However, he interpreted the ground of appeal as being related to certain aspects of the Procedures Advice Manual which had been held in Minister for Immigration and Ethnic Affairs v Baker[21] to be inconsistent with the legislation.  There was, his Honour said, no evidence that the Minister acted in accordance with the Manual.  Therefore, the ground of appeal based on error of law failed. 

    [21](1997) 73 FCR 187 at 192-193.

68. That accounts for the somewhat surprising consequence that, where the substantial criticism of the Minister was that his statement in the radio interview revealed an approach to the interpretation of s 501 that was contrary to its meaning, his decision was set aside, not on the ground of error of law, but on the ground of bias in the form of unalterable prejudgment.

69. It was not argued, either in the Federal Court or in this Court, that the Minister's decision in either case constituted an abuse of power in the form of a deliberate refusal to follow the provisions of the statute. The arguments on bias were expressed in terms of prejudgment, and were bound up with an alleged misunderstanding of the law. It was not contended, or found, that the Minister had determined that, notwithstanding the provisions of s 501, he would exercise his statutory powers, regardless of his views of the character of Mr Jia or Mr White, simply on the basis that they had been convicted of serious offences. Some of the arguments, and some of the findings, carried a suggestion of that; but if any such submission were to be advanced, or any such conclusion reached, the allegation would have had to be distinctly made and clearly proved.

70. A different argument alleging improper exercise of power, which is a ground of review under s 476(1)(d) of the Act, was advanced, and is the subject of a Notice of Contention. It was argued that the Minister exercised his powers under s 501 in order to reverse the decision in Jia that had been made by the Tribunal, and that that was either beyond power, or was an improper exercise of power.  That argument will be considered when dealing with the Notice of Contention.

    The Minister's appeal in the case of Mr Jia

71. In resisting the Minister's appeal, counsel for Mr Jia raised, by way of Notice of Contention, an argument that both French J and the Full Court had adopted a test of actual bias which was unduly favourable to the Minister.  All that was necessary to constitute bias, it was said, was an inclination or predisposition of mind.  Under pressure of argument, this was qualified by the addition of adjectives such as "wrongful" or "improper".  The precise content of those adjectives, in the context, is not clear.  Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias.  The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.  The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias[22].

    [22]As to members of the Commonwealth Conciliation and Arbitration Commission, see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.

72. The test which was applied both by French J and by the Full Court was orthodox.  It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal[23] and Johnson v Johnson[24].  The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.  This preliminary argument should be rejected.

    [23](1990) 170 CLR 70 at 91 per Deane J, 100 per Gaudron and McHugh JJ.

    [24](2000) 74 ALJR 1380; 174 ALR 655.

73. There is another preliminary matter that should be mentioned. It concerns the nature of the decision to be made under s 501. The Minister is given a discretionary power to cancel a visa if sub-s (2) applies to a person who holds a visa. Sub-section (2) applies if the Minister, having regard to either of two matters, is satisfied that the person is not of good character. The two matters are either the person's past criminal conduct or the person's general conduct. It is the Minister's satisfaction that makes the sub-section applicable. Such provisions are construed as requiring the decision-maker reasonably to be so satisfied. The question then on judicial review is whether the decision-maker could have attained that satisfaction reasonably, in the sense explained in numerous authorities in this Court[25].  In Foley v Padley[26], Brennan J emphasised that the question on judicial review is not whether the court would have formed the opinion in question, and that an allegation of unreasonableness in the formation of the opinion by the decision-maker may prove to be no more than an impermissible attack on the merits of the decision.

    [25]R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, 432; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57; Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535 at 567-568, 576-577; Buck v Bavone (1976) 135 CLR 110 at 118-119; Foley v Padley (1984) 154 CLR 349 at 353, 370, 375; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-276; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303, 308; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 652-654 [133]-[137].

    [26](1984) 154 CLR 349 at 370.

74. The satisfaction specified in s 501(2) relates to whether the person is of good character at the time of the decision. Such a satisfaction may be formed having regard to the person's past criminal conduct. It is common ground that character means disposition rather than reputation, and that considerations such as the seriousness of the past criminal conduct, the time that has elapsed since it was committed, and the possibility of rehabilitation, may be relevant and, in some cases, important. Even so, where a Minister is given the function of deciding whether, having regard to past criminal conduct, a person is not of good character, in the ordinary case the fact of a conviction, or a number of convictions, the nature of the offence or offences, and the severity of the punishment imposed, will be the most reliable guide to a proper decision. A conclusion that a person who has recently been convicted of serious crimes of violence, and sentenced to a substantial term of imprisonment, is not of good character, is, on the face of it, not unreasonable. In the case of Mr Jia, the opposing view was, to a substantial extent, based upon a re-consideration and re-evaluation of the facts and circumstances of the crimes for which he was convicted and sentenced. For the Minister to conclude, on the basis of the convictions and sentences, that he was satisfied that Mr Jia was not of good character, and to reject the opposing view, is an outcome that is consistent with the legislation.

75. The appeal from French J to the Full Court was an appeal by way of rehearing; the relevant provision of the Federal Court of Australia Act 1976 (Cth)[27] is not materially different from the provision of the Family Law Act 1975 (Cth)[28] considered by this Court in Allesch v Maunz[29].  It was not disputed that the principles as to reviewing a primary judge's findings of fact were as stated in Warren v Coombes[30].

    [27]Section 27.

    [28]Section 93A(2).

    [29](2000) 74 ALJR 1206; 173 ALR 648.

    [30](1979) 142 CLR 531.

76. It was not suggested by the majority in the Full Court that the reasoning of French J at first instance was affected by specific error; rather, what was said was that "the primary judge failed to draw inferences which should have been drawn"[31].

    [31](1999) 93 FCR 556 at 603.

77. In comparing the reasoning of French J at first instance, and Cooper J in the Full Court, with that of the majority in the Full Court, four principal differences emerge.

78. First, both French J and Cooper J evaluated the statements and conduct of the Minister in the light of his political functions and responsibilities.  This is a matter of importance.  In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision- making capacity, may be of critical importance.  French J was right to consider the Minister's conduct in relation to the radio interview, and the letter to the President of the Tribunal, in the light of the fact that he was "an elected official, accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which … is a matter of continuing public interest and debate."[32]  This is a matter that will be considered further in relation to the argument on apprehended bias.

    [32](1998) 84 FCR 87 at 106.

79. Secondly, the majority in the Full Court attached adverse significance to the Minister's letter to the President of the Tribunal. However, they did so without knowing the terms of the letter from the President to the Minister, to which the Minister's letter was a reply. Furthermore, they either overlooked, or attached no weight to, part of the letter which was inconsistent with a view of the operation of s 501 to which they inferred the Minister was absolutely committed.

80. Thirdly, the majority in the Full Court, applying Jones v Dunkel, attached substantial weight to the failure of the Minister to give evidence. In this respect, it is to be noted that, in the course of the hearing, there was tendered an agreed statement of facts, which included a number of paragraphs concerning the Minister's opinion on 14 April 1997. These are set out above. The opinions expressed were reasonably open. There was also in evidence the departmental minute which the Minister had before him when he made the impugned decision. The process of reasoning in that minute was not said to be inconsistent with the statutory provisions, and all the relevant considerations were put before the Minister. When French J had before him that information, there was no compelling reason why he should have inferred from the Minister's failure to give evidence that he held opinions about s 501 different from the author of the minute, and additional to those set out in the agreed statement of facts.

81. Fourthly, the majority in the Full Court treated the Minister's statement in the radio interview that he "[did not] believe you are of good character if you've committed significant criminal offences involving penal servitude" as reflecting a concluded and unalterable view of the law, and as to its application in the case of Mr Jia. This is an unwarranted interpretation of what was said, having regard to the context. French J noted that, by the time the Minister came to make his decision concerning Mr Jia, the Minister's attention had been drawn to judicial decisions on s 501, and that the minute presented to him for his decision proceeded upon an orthodox approach to the meaning of s 501. He might also have observed that the letter written by the Minister to the President of the Tribunal reflected a view of s 501 different from a view that conviction of a significant offence automatically meant that a person would be treated as not of good character.

82. The reasoning of French J, and Cooper J in the Full Court, is to be preferred to that of the majority in the Full Court.  The reasoning of the majority, far from demonstrating error on the part of French J warranting appellate intervention, reflects error of its own.

83. It is necessary to turn again to the Notice of Contention, which seeks to support the decision of the majority in the Full Court upon alternative grounds.  The first of those grounds has been considered and rejected above.  Each of the remaining grounds also attributes error of law both to French J and the Full Court.

84. It was argued that, in exercising the powers given by s 501, and s 502, the Minister was in effect, and impermissibly, nullifying the decision of the Tribunal. A submission that s 501 and s 502 should not be construed so as to confer upon the Minister a power to set at nought a decision of the Tribunal where the Minister took a different view of the material considered by the Tribunal was supported by the decision of Sackville J in Gunner v Minister for Immigration and Multicultural Affairs[33].  French J, in the present case, considered, and disagreed with, the decision of Sackville J.  Subsequently, and before the appeal to the Full Court in the present case, the case of Gunner went on appeal to the Full Court of the Federal Court, which reversed the decision of Sackville J[34].  That decision was followed by the Full Court in the present case. 

    [33](1997) 50 ALD 507.

    [34]Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400.

85. The reasoning of the Full Court of the Federal Court on the appeal in Gunner was correct, and applies to the present case. The powers conferred upon the Minister by ss 501 and 502 are not to be qualified by an unexpressed limitation to the effect that they may not be exercised in a case where the Tribunal has set aside a decision to cancel a visa, or set aside a deportation order made against a person, unless there has been some material change in circumstances. Nor does a decision by the Minister to invoke the powers given by ss 501 and 502 where he is dissatisfied with a previous decision by the Tribunal involve an abuse of power. The Full Court, in Gunner[35], said:

    "It was not suggested that, having regard to the serious crimes committed by the respondent, there was not material on which the Minister could be satisfied that he was not of good character. Nor could it be suggested that those crimes were not sufficiently serious to be capable of founding a view that it was in the national interest that he be deported. Counsel did not suggest that the Minister acted out of a fit of pique or was motivated by a desire to overturn the [Tribunal's] decision just for the sake of doing so. It is true that in the circumstances of this case the question of orders under ss 501 and 502 would not have arisen if the [Tribunal] had reached a different decision. However, the Minister accepted the decision which the [Tribunal] did make. He did not disobey it and did not proceed with an appeal against it. Rather, he exercised a separate statutory power which was available to him and the exercise of which was directed towards the purpose for which the power was conferred, namely the removal from Australia of non-citizens who have committed serious crimes or are otherwise not of good character."

    [35](1998) 84 FCR 400 at 408-409.

86. With immaterial differences in relation to the matter of appeal, those observations apply equally to this case. The fact that the Minister disagreed with the decision of the Tribunal, and ultimately decided to exercise his own powers in such a way as to produce a practical result different from that which followed from the Tribunal's decision, does not mean there was an abuse of power. The fact that the Minister's powers extend to enabling that to be done is simply the consequence of the legislative scheme. There is nothing in the scheme which obliges the Minister to defer to the Tribunal, or to refrain from giving effect to his own opinions and judgment, when considering whether to act under ss 501 and 502. In that respect it is to be noted that s 502(3) involves its own form of accountability, by requiring the Minister, when a decision is made under s 502(1), to notify each House of the Parliament within 15 sitting days.

87. A further argument, which was also similar to an argument that was considered and rejected by the Full Court of the Federal Court in Gunner[36], concerned s 502. Section 500 of the Act provides for merits review by the Tribunal of decisions under s 501, other than decisions to which a certificate under s 502 applies. Thus, it was argued, the focus of attention in considering the seriousness of the circumstances and the national interest, should be the exclusion of the decision from merits review by the Tribunal. As the Full Court observed in Gunner[37], the circumstances in question are the respondent's past criminal conduct. It is the seriousness of that conduct which has to be assessed in the national interest, which dictates that people who engage in sufficiently serious crime should not have the benefit of an Australian visa. "The effect of s 502, when invoked, is to ensure that the Minister is to have the final and only say on the question of whether the person in question should or should not be entitled to enter or be in Australia."[38]  In the present case French J was right to conclude that it was open to the Minister to reach a view adverse to the respondent.

    [36](1998) 84 FCR 400 at 409.

    [37](1998) 84 FCR 400 at 409.

    [38](1998) 84 FCR 400 at 409.

88. The decision of French J was correct.  The Minister's appeal against the decision of the Full Court in the case of Mr Jia should be allowed.

    The appeal in the case of Mr White

89. To a substantial extent, the outcome of the Minister's appeal in the case of Mr White is dictated by the success of his appeal in the case of Mr Jia.

90. One of the grounds of appeal is that the Full Court of the Federal Court erred in allowing Mr White to raise, in the manner and at the time he did, a claim of actual bias based upon the decision of the Full Court in the case of Mr Jia.  It is unnecessary to deal with that ground.

91. In so far as the reasoning of the Full Court in finding actual bias in the case of the decisions under ss 501 and 502 relating to Mr White followed that of the majority in the case of Mr Jia, the conclusion, reached above, that the majority in the case of Mr Jia was in error has a consequential effect in the present case. Furthermore, the criticisms that have been made of the reasoning in the case of Mr Jia apply with even greater force in the case of Mr White.

92. The impugned decisions were made in October 1998, more than a year after the events concerning Mr Jia. The minute that was before the Minister at the time of his decisions was expressed in terms inconsistent with the approach to s 501 that had been attributed to the Minister largely on the basis of what he had said in a radio interview in April 1997. The use of Jones v Dunkel was surprising, especially having regard to the manner in which the issue of actual bias arose and was developed.  The point (in its presently relevant form) was not taken at first instance.  When it was allowed to be raised, belatedly, on appeal, the agreed statement of facts used in the case of Mr Jia was again treated, on both sides, as correct.  It included statements as to opinions held by the Minister at a certain time.  The departmental minute put to the Minister at the time of his decision was in evidence.  What was it expected that the Minister, in the circumstances, might seek to prove?  It might have been thought understandable that he would be content that his case be argued on the basis of the material already before the court.  If the Minister's decision not to give evidence personally was based on a view that such material did not make out a case of actual bias, then that view was correct.  At the time of the decision of the Full Court in the case of Mr White, the Minister had a pending application for special leave to appeal to this Court against the decision of the Full Court in the case of Mr Jia.  He was arguing that that decision was wrong; an argument that has prevailed.  It was consistent with the approach he was taking that he should not regard it as necessary that he should add to the evidence on the basis of which he had succeeded at first instance in the case of Mr Jia.  A possible explanation of the Minister's failure to give evidence in the course of Mr White's appeal, which does not appear to have been considered by the Full Court, is that he (or his advisers) took the view that, as French J had held, he was entitled to succeed on the basis of the existing material.  One reason such a view might have been taken is that it was right.

93. There is a Notice of Contention in this appeal also.  It raised the same issues as have already been considered in relation to the other appeal.

94. The Minister's appeal in this case also should be allowed.

    The application under s 75(v) of the Constitution

95. Against the possibility that the findings of actual bias in these two cases might be set aside, in each case a claim has been made in this Court to the effect that there was a denial of procedural fairness in that the decisions of the Minister were made in circumstances of apprehended bias.  It was said that a fair-minded observer might reasonably apprehend that the Minister might not bring an impartial and unprejudiced mind to the task of deciding the matters that required decision[39]. 

    [39]Johnson v Johnson (2000) 74 ALJR 1380 at 1382 [11]; 174 ALR 655 at 658.

96. The argument on behalf of each applicant was put as follows:

    "The Full Court of the Federal Court has found that the decision of the [Minister] was affected by actual bias, applying a significantly more stringent test than that applicable to apprehended bias.  The facts which gave rise to that conclusion [clearly] satisfy the less stringent requirement of apprehended bias.  No fair minded lay observer cognisant of those facts could help but reasonably apprehend that the [Minister] might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide."

97. The argument cannot be put upon the basis that if five Federal Court judges found actual bias, a reasonable observer, considering the same facts, might surely at least have a reasonable apprehension of bias.  After all, the argument only arises for consideration upon the hypothesis that the five judges were wrong.  One cannot logically treat their erroneous decision as supporting a conclusion of apprehended bias.  If their decision had been correct, the question would not have arisen.  Their decision having been found to be in error, and set aside, it cannot be used in aid of an alternative argument.  Nor can a process of reasoning which has been found to be unreliable be attributed to a reasonable observer.

98. The new case of apprehended bias requires closer attention to the content of the requirements of natural justice, and the concept of bias.

99. In Ebner v The Official Trustee in Bankruptcy[40] the majority judgment, referring to the law as to procedural fairness, and apprehended bias, warned:

    "The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making."

    [40](2000) 75 ALJR 277 at 279 [4]; 176 ALR 644 at 646-647.

100. We agree with the observations on this subject made by Hayne J in his reasons for judgment in the present case.

101. Reference has earlier been made to the significance which French J correctly attached to the position and role of the Minister, and to the Full Court's failure to give proper weight to those considerations in connection with the claim of actual bias. In various respects, decisions by the Minister stand in a different position to those of delegates acting under s 496. For example, decisions by a delegate under s 501 attract merits review by the Tribunal (s 500(1)(b)) while those of the Minister under s 501 do not.

102. Although it would require some qualification in the light of later developments in the law, Lord Thankerton's speech in Franklin v Minister of Town and Country Planning[41] stands as a useful reminder that lawyers usually equate "bias" with a departure from the standard of even-handed justice which the law requires from those who occupy judicial, or quasi-judicial, office. The Minister is in a different position. The statutory powers in question have been reposed in a political official, a member of the Executive Government, who not only has general accountability to the electorate and to Parliament, but who, in s 502, is made subject to a specific form of parliamentary accountability. The power given by s 502 requires the Minister to consider the national interest. As Brennan J observed in South Australia v O'Shea[42]: "The public interest in this context is a matter of political responsibility". The powers given by s 501 and s 502, as has already been held, enabled the Minister in effect to reverse the practical consequences of decisions of the Tribunal in the cases of the persons involved, even though no new facts or circumstances had arisen; and even though the Minister had been involved in the proceedings before the Tribunal. As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

     [41][1948] AC 87 at 104.

     [42](1987) 163 CLR 378 at 411.

279. But in this case exactly the same matters are relied upon to establish apprehended bias as for the claim of actual bias.  Those matters have not been made out for the reasons I have given.  The three sets of material either alone or together do not convey an appearance of bias.  The claim of apprehended bias therefore also fails and the applications for prerogative relief on grounds of it should be refused.  

280. Some additional comments should be made.  The fact that a person has criticised, albeit in strong language, the decision of a tribunal or a court, particularly a decision involving discretionary considerations does not mean that that person regards himself or herself as not being bound by the decision of that Court or Tribunal, or that when the occasion comes to reconsider the matter with which the decision deals, or a like matter, the critic will remain obdurately committed to a different, wrong view.  And it should also be pointed out that many people, including many lawyers who hold views, even strong views about the law on a particular topic, would hold them provisionally only in the sense that they will be open to dissuasion by a different view upon proper instruction or argument.  Informed lawyers often hold strong, differing views on many legal questions.  A judge or magistrate might hold strong views about and, indeed might even say publicly that he or she does not believe in it, but if a legislature, within power, legislates for it, the magistrate or judge, no matter how distasteful he or she finds it, will have no choice but to give effect to that legislation.  This Court itself is no stranger to division on difficult legal questions but a dissenting judge will be bound to apply the decision of the majority of the Court.  Courts and people who are bound by the decisions of superior courts (particularly in a common law system in which the doctrine of stare decisis holds strong sway) and by legislation generally, have to accept that to be so and can be expected to abide by the law as it is stated in legislation or declared by the courts.

281. The majority in the Full Court were of the opinion that the Minister's abstention from giving evidence more readily allowed them to infer bias against the Minister.  In view of my conclusions on other matters it is unnecessary for me to deal with the respondent's submission in that regard.  What I have said, however, in relation to it in White's case applies with equal force here.  

282. I should also say that I agree with what Gleeson CJ and Gummow J have said, that the powers conferred upon the Minister by ss 501 and 502 are not to be qualified by an unexpressed limitation that they not be exercised differently from the Tribunal's exercise of power unless circumstances have changed. Nor, I agree, does an exercise of the power differently, involve an abuse of power by the Minister.

283. In dealing with the matters that I have and in the way in which I have dealt with them, I have said all that it is necessary to say about the respondent's contentions except perhaps for the contention that both the primary judge and the Full Court erred in holding that there was material before the Minister upon which he could declare that the respondent was an excluded person pursuant to s 502 of the Act. All of the materials before the Minister, including the evidence of all of the convictions were materials sufficient for that. The Minister was not estopped, for example, in exercising his powers under ss 501 and 502, from relying upon the convictions other than those for rape and associated conduct.

284. I would summarise my reasons in this way. Past convictions, especially for very serious crimes, are highly relevant matters of primary importance but not exclusively so, under ss 501 and 502 of the Act. The Full Court erred in holding that the Minister was biased. No case of apprehended bias has been made out. A Minister may, in his or her ministerial capacity speak freely about government policy, the operation of current law, and the government's desire and policy to change the law, without compromising his or her right and obligation to exercise a power conferred to decide a matter under current law, so long as he or she appreciates the different nature of his or her respective functions and legal obligations in discharging ministerial duties. Any obligations of restraint he or she may owe in speaking and acting are different from, and less onerous than, those owed by courts, judges and tribunals, the last of which may, I express no concluded opinion on it, be different again from the others. Adverse inferences may not be so readily drawn against a Minister in this type of litigation as might be drawn against a party who avoids the witness box in other proceedings.

     Orders

285. I would allow the Minister's appeal with costs and order that the respondent pay the Minister's costs of the appeal to the Full Court of the Federal Court. The decisions and orders of French J at first instance should be restored. I would refuse the application by the respondent for relief under s 75(v) of the Constitution with costs.

     Te Whetu Whakatau White

286. Te Whetu Whakatau White ("the respondent") is a foreign national, who was born in New Zealand in 1968.  By the time of his first arrival in Australia in 1987 he had been convicted of a number of offences, including two of common assault and one each of disorderly behaviour and wilful damage.  Within two and a half years after his arrival in Australia he had accumulated convictions and penalties as follows:

PLACE & DATE	OFFENCE	RESULT
Perth WA, 12/12/88	Damage Assault Common	Convicted, Fined $200 Convicted, Fined $300
Perth WA, 23/1/89	Damage	Convicted, Fined $50
Perth WA, 17/3/89	Disorderly, Obscene Language Assault Common	Convicted, 40 Hrs Community Service Order Convicted, 40 Hrs Community Service Order
Perth WA, 15/9/89	Falsely Acknowledging Recognizance False Name & Address	Convicted Fined $50 Convicted Fined $50
CLC, 15/9/89	Exceed .08%	Convicted Fined $300 Motor Driver's Licence disqualified & cancelled 3 months
Margaret River WA, 26/10/89	False Name & Address No Motor Driver's Licence Under Suspension (Probationary)	Convicted Fined $150, Motor Driver's Licence disqualified & cancelled 3 months Convicted Fined $300, Motor Driver's Licence disqualified & cancelled 12 months
Perth WA 26/10/89	False Name & Address Breach of Bail	Convicted Fined $150 Convicted Fined $300
Perth WA 30/10/89	Breach of Bail	Convicted Fined $300

287. He added to that list a conviction for driving as an unlicensed driver with an excessive level of alcohol in his blood during a brief visit to New Zealand in September 1991.  Warrants for his arrest for similar offences in May 1991 are outstanding, as well as one of possession of a knife in a public place.

288. On 31 January 1992 the respondent was granted a Special Category Visa. In June 1993 he was working as a meatworker in Katherine in the Northern Territory. On the 24^th of that month, he was one of several participants in a violent altercation at a Katherine hotel.  During it he left the hotel to find and drive his brother's car back to the affray.  He had also armed himself with a bat that he intended to use, and did use as a weapon in the fight that he then rejoined.  After being struck to the ground he returned to the car.  He drove it away and at one of the men who had been engaged in the fight.  He drove on, made a U-turn and ran the same man down again.  He then drove on to the other side of the road and ran down another of the men who had been fighting.  Not content with the injuries that he had inflicted upon the two men,  he again turned the car around and ran down two women, one of whom was seriously injured, and the other of whom was killed instantly.  The car then struck a pole.  The respondent got out of the car and attempted to flee, but was beaten by the associates of those he had injured and killed.  His skull was fractured.  On admission to hospital the level of alcohol in his blood was found to be 0.17%.

289. The respondent was charged and convicted of manslaughter in the Supreme Court of the Northern Territory on 17 March 1994.  He was sentenced to four years imprisonment.  He was also convicted of three counts of committing an aggravated dangerous act and sentenced to two years imprisonment in respect to each of those.  The Court ordered that all convictions be served concurrently, and further directed that he be released after serving 12 months imprisonment upon entering into a recognizance.  The respondent remained in custody until his release from prison in Darwin on 29 June 1994.

290. Officers of the Department of Immigration and Multicultural Affairs ("the Department") became aware of the respondent's possible liability for criminal deportation after March 1994.  The Department conducted interviews with the respondent and sought material from various agencies concerning him for the purpose of considering whether he should be deported.

291. On 24 April 1996, while he was driving on the incorrect side of the road without a current driver's licence and with the high content of alcohol in his blood of 0.22%, the respondent's car collided head-on with a vehicle travelling in the opposite direction.  The passenger in that vehicle, and the passenger in the respondent's vehicle, suffered bodily harm. On 21 February 1997 the respondent pleaded guilty to two counts of dangerous driving causing grievous bodily harm.  He was sentenced to a term of imprisonment of 12 months which was suspended, and was disqualified from holding a driver's licence for two years.  He also pleaded guilty to, and was sentenced, on a count of driving under the influence of alcohol, a count of driving without a driver's licence, and a count of dangerous driving causing grievous bodily harm.  The sentencing Court was not informed, and therefore did not have regard, in sentencing the respondent, to the earlier convictions of manslaughter and aggravated dangerous acts in Katherine.

292. A submission recommending the deportation of the respondent was put to a delegate of the Minister on 22 December 1997. That recommendation was accepted by the delegate acting under ss 200 and 201 of the Act, on 9 January 1998[163].

     [163]"200     The Minister may order the deportation of a non-citizen to whom this Division applies.

     201    Where:

     (a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

     (b) when the offence was committed the person was a non-citizen who:

     (i)had been in Australia as a permanent resident:

     (A)for a period of less than 10 years; or

     (B)for periods that, when added together, total less than 10 years; or

     (ii)was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

     (A)for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

     (B)for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

     (c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

     section 200 applies to the person."

293. On 28 January 1998, the respondent applied to the Tribunal for review of the decision that he be deported.

294. The respondent was apprehended, served with a deportation order and taken into custody at the Immigration Detention Centre in Perth on 23 January 1998.  He applied to the Federal Court to be released from detention.  That Court made an interim order for his release on 16 February 1998.

295. On 21 May 1998 the Tribunal set aside the deportation order and remitted the matter to the Minister with a direction that the respondent not be deported.

296. On 13 August 1998 a letter was sent to the respondent advising him that his visa might be cancelled and inviting him to respond.

297. On 14 October 1998 a minute was prepared by the Department and provided to the Minister seeking his decision on the possible cancellation of the respondent's visa and a declaration that he be regarded and treated as an excluded person. On the same day the Minister decided to cancel the respondent's visa on the ground that he was not of good character, and to issue a certificate declaring him to be an excluded person. The respondent then applied to the Federal Court for review of those decisions of the Minister. On 18 November 1998 the respondent filed a revised application which included actual bias as a ground of review. Two weeks later he again amended his application so as to exclude actual bias as a ground of review.

298. The respondent's application was heard and rejected by French J. There was no current ground of review before him alleging bias in any form so that his Honour did not need to consider any question of it.

299. The respondent appealed to the Full Court of the Federal Court.  Subsequently he filed a minute of amended grounds of appeal which included a ground as follows:

     "The Minister's decision was induced or affected by fraud as a direct consequence of the evident absence of the whole of the Learned Trial Judge's comments, substantially in favour of the applicant, not being submitted by the Department of Immigration for the Minister's particular consideration."

300. The respondent's appeal was heard on 20 August 1999 by Ryan, North and Weinberg JJ who pronounced judgment on some of the respondent's grounds but adjourned the appeal for further hearing in relation to actual bias.  In that regard, their Honours said this:

     "          What the appellant has sought to do on the appeal, however, is to revive his original claim of bias, but upon a completely different basis. He has relied in support of his revived contention upon the very recent judgment of the Full Court in Jia Le Geng v Minister for Immigration and Multicultural Affairs[164]. In that case, the Full Court, by majority, held that the relevant Minister (who is also the respondent in the present proceedings) had displayed actual bias in the exercise of his statutory powers under ss 501 and 502 of the Act. The Minister's decision to cancel the appellant's visa and his decision to declare him an excluded person were therefore set aside."

     [164](1999) 93 FCR 556.

301. They then discussed the reasons for judgment of the majority of the Full Court in Jia.  Their Honours acknowledged that there was a pending application by the Minister for leave to appeal to this Court.  They went on to say this:

     "          The difficulty which presents itself in the present case is that there is a judgment of a Full Court of this Court, delivered as recently as 15 July 1999, in which that Full Court, by majority, held that the very Minister who is the respondent to the present proceedings had displayed actual bias in a decision taken by him on 10 June 1997 in relation to the same sections of the same Act as are the subject of this appeal. Findings of actual bias are rarely made. If actual bias vitiated the Minister's decisions taken in Jia Le Geng on 10 June 1997, might it also vitiate the Minister's decisions taken in the present case on 14 October 1998?"

302. Counsel for the Minister had submitted, that merely because the Minister had displayed actual bias in the manner in which he approached ss 501 and 502 of the Act on 10 June 1997 could not mean that he had also been guilty of actual bias when he considered the respondent's position on 14 October 1998.

303. Of that submission their Honours said this:

     "          That submission may well be correct, as a matter of logic. There are, however, several countervailing considerations. There is nothing to suggest that the Minister would have understood, at any time before the Full Court published its reasons in Jia Le Geng on 15 July 1999, that his approach to ss 501 and 502 of the Act was erroneous. There is no reason to believe that he would not have approached those provisions in exactly the same erroneous manner when, on 14 October 1998, he decided to cancel the appellant's visa, and to declare him an excluded person."

304. The Full Court then stated this:

     "          As at November 1998, when the appeal to the Full Court in Jia Le Geng was argued, the Minister continued to maintain that he had not erred in cancelling Mr Jia's visa, and in declaring him an excluded person. That hardly suggests that the Minister had changed his views between June 1997 and October 1998.

     Counsel for the respondent quite properly drew attention to the fact that in Jia Le Geng there had been a body of evidence placed before the Court, both at first instance and on appeal, in support of the contention that the Minister had displayed actual bias in arriving at the relevant decisions. Indeed, in Jia Le Geng there were agreed facts which facilitated the resolution of the question whether there had been such bias. "

305. Then the Full Court added this:

     "          It is appropriate, in our view, in the unusual circumstances of this case, where the appellant relies entirely upon findings of fact made by the Full Court in Jia Le Geng, that the respondent file and serve any affidavits upon which he wishes to rely before the appellant is required to file additional material in support of his claim."

306. An affidavit of the solicitor acting for the Minister was then filed on behalf of the Minister.  The same statement of facts as was agreed in Jia was exhibited to it and was asserted to be true and correct for the purposes of this case also.  Materials in relation to other decisions taken by the Minister were also exhibited for the affidavit.

307. After argument, and when the Full Court came to consider the matter further they said this:

     "          This is an unusual case in that the appellant relies on the reasoning of the majority in Jia, not as establishing some applicable principle, in the sense of what is traditionally called the ratio decidendi, but rather to draw an inference as to what the Minister's state of mind was on 10 June 1997. That reliance is available to the appellant only because a conclusion as to the same fact is relevant to what he asserts was the Minister's state of mind on 14 October 1998, and because there is no significant difference between the evidence from which the majority in Jia drew the inference they did and the evidence before this Full Court."

308. Ultimately the Full Court held that:

     "continuously between 10 June 1997 and 14 October 1998 [the Minister's mind] was closed to the possibility of a decision favourable to a person in the respondent's circumstances [by reason of] a perception that, as a matter of policy or sound administration, rather than law, a person who had been sentenced to more than one year's imprisonment could not be of good character." 

     Their Honours reached this conclusion notwithstanding that during this period the Minister had before him Departmental submissions in respect of two other criminals which made it clear that the fact of a conviction attracting a term of imprisonment of a year or more, did not conclude the issue of character against those criminals.

     The appeal to this Court

309. The Minister appeals to this Court on the following grounds, inter alia, as follows:

     a.The Full Court of the Federal Court erred in holding that the decision made by the Minister on 14 October 1998, that he was satisfied that the respondent was not of good character, and that the respondent's visa be cancelled under s 501 of the Act, was induced or affected by actual bias;

     b.The Full Court erred in drawing the inference on the same facts as were before the Full Court in Jia v Minister for Immigration and Multicultural Affairs that, as at 10 June 1997, the Minister had prejudged the issue of whether Jia was a person not of good character.

     c.The Full Court erred in drawing the inference that at the time of making his decision on 14 October 1998, the Minister had prejudged the issue of whether the respondent was a person not of good character.

310. The respondent seeks prerogative relief pursuant to s 75 of the Constitution against the Minister on grounds of actual bias, or apprehended bias, and unreasonableness.

311. A useful starting point for the resolution of this case is to analyse the steps in the reasoning of the Full Court.

312. First the Full Court defined bias.  They said that a "closed mind" would constitute bias, if that mind were not open to persuasion otherwise: or that there has been a prejudgment of an aspect of the case.  Their Honours then cited several passages  in the judgments of Spender J and R D Nicholson J in Jia[165].

     [165]Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556.

313. The next step was effectively to approve and adopt the finding of the Full Court in Jia, that the Minister "was incapable of persuasion that the [Tribunal's] line of reasoning was acceptable when he came to decide, about six weeks after making the statement, whether Mr Jia was of good character".  The language in which the Full Court couched this approval and adoption, "that it was plainly open to the majority in Jia to infer that … [the Minister] was incapable of persuasion …" does not put a different complexion upon the reality of what the Court was doing: accepting as established by a finding of fact in one case, an important factual matter in this case.

314. This was an unusual step to take.  Whether a person is biased is a question of fact.  The Full Court's reasoning in this case involves finding that fact (the Minister's state of mind when he made his decision in Jia) when there was no evidence specifically directed to that fact at first instance, and the evidence on appeal was different from what was before the Court in Jia.  This factual finding was derived from the factual finding of the differently constituted earlier Full Court in which that was the principal fact to be decided.  It was almost as if the Full Court in this case regarded the finding of fact in the earlier case, between different parties, as creating in the nature of an issue estoppel with respect to that fact in these proceedings. Parties are entitled to have the factual issues between them decided on the facts adduced, and the arguments presented in their case, and on their behalf.  A previous factual finding in different proceedings between non-identical parties and on different facts has no binding, and indeed should have little, or no persuasive effect upon the minds of a subsequent court whose obligation is to consider the matter afresh and reach its own conclusions about it.  To do what the Full Court did here was effectively, to do that of which the Minister is accused, to treat a particular view as conclusive of a decision-maker's view on a different occasion in respect of different facts and a different person.

315. Their Honours found it easier, they said, to reach the same conclusion as to the Minister's state of mind as the Full Court in Jia, because, in this case, as there, the Minister did not give evidence of his state of mind when he acted under ss 501 and 502 of the Act in relation to Jia.  

316. The Federal Court has held on a number of occasions[166] that the principle laid down in Jones v Dunkel[167] can be invoked against a Minister of the Crown. In Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs[168] Pincus J with some apparent hesitation did so.  His Honour said[169]:

     "          The respondent did not give evidence.  His senior counsel argued with, as it seems to me, some cogency that performance of his Ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions.  It may be thought that the argument just mentioned justifies a departure from the ordinary principle laid down in Jones v Dunkel ... as to the results of failing to give evidence.  On the other hand, in the absence of their author, it is hard to resist drawing from the notes just quoted two inferences which may assist the applicants ..."

     [166]ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 205; Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 at 159; Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court of Australia, 12 December 1989, per Hill J); Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169 at 178.

     [167](1959) 101 CLR 298.

     [168](1986) 11 FCR 543.

     [169](1986) 11 FCR 543 at 548.

317. It is unnecessary to decide in this case whether the rule should have application to a Minister in modern times.  But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent.  Considerations of public interest immunity may loom large in some cases.  A Minister is a policymaker and policy advocate as well as a decision-maker. Furthermore, the statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer[170] and cited recently by this Court in Vetter v Lake Macquarie City Council[171], that evidence has to be weighed according to the circumstances of, as well as the capacity of a party to adduce it.

     [170](1774) 1 Cowp 63 at 65 [98 ER 969 at 970].

     [171][2001] HCA 12.

318. The next step in the Full Court's reasoning was to find that the Minister's preconception of 10 June 1997 remained sixteen months later on 14 October 1998.

319. It is not entirely clear to what reasons the Court was referring  immediately before their Honours drew the inference that they did as to the Minister's unchanged state of mind during the 16 months up until 14 October 1998.  The judgment was, to that point, largely taken up with the Court's power to receive evidence on appeal, and the respondent's application to amend his ground of appeal.

320. It is necessary to go to the next paragraph to find the matters upon which the Court relied to hold that the Minister's mind remained closed to the correct legal position.  The first of those matters was stated to be that "[n]o other facts have emerged which tend to support an inference that the Minister's view had changed in any relevant respect in the 16 months that had elapsed".  Let it be assumed as counsel for the Minister apparently did, that the Minister was acting, on 10 June 1997, under a misconception as to the correct legal position.  It by no means follows that the misconception endured for the next 16 months.  But in any event there were facts, indeed their Honours had already stated them, which tended to show what in fact was the Minister's state of mind from time to time, in that period and earlier, and that it was different from the state of mind that both Full Courts attributed to him, of, in effect, an inflexible determination to deport anyone convicted of a serious crime that attracted a substantial term of more than 12 months imprisonment, without regard to his obligations to apply the statute according to its terms.

321. The references to the facts that had emerged were as follows:

     "          We have not disregarded the fact that the Minister, between 10 June 1997 and 14 October 1998, made two further decisions in relation to persons who had been sentenced to terms of imprisonment in excess of one year. When making those decisions, the Minister had the benefit of Departmental submissions which did not suggest that no other course than refusal of a visa was open. The submissions directed the Minister to the need to consider any recent good conduct of the respective applicants."

322. The Full Court's reasons do not disclose how their Honours had regard to those relevant matters and why they gave them little or no weight.  The unqualified application of Jones v Dunkel by reason of what I have already said was misconceived and could not in any event justify the Court's failure to explain why or how, if they had not disregarded them, those facts would not displace the inferences they were disposed to draw and did draw.

323. It can be seen that there were flaws in each step of the Full Court's reasoning except, perhaps, in the initial one of defining bias.  The combination of these flaws alone requires that the Minister's appeal be upheld.

324. However, more fundamental reasons why the appeal should be allowed are those reasons I have stated in Jia, that the Minister did not express, and has not been shown to hold, an erroneous view of the law, much less an unalterable one. Nor did he seek to apply policy instead of the Act at any material time. And, as I pointed out in Jia, nor did the Minister's conduct and statements give rise to any apprehension of bias. For the same reasons, the application for prerogative relief should also be refused.

325. Because of the conclusions that I have reached on the grounds of appeal that I have considered it is unnecessary for me to deal with the other grounds relating to amendment and the reception of evidence by the Full Court of the Federal Court. Nor is it necessary for me to give any detailed consideration to the contention of the respondent relied on to support the decisions of the Full Court which depend on the erroneous view that the decision of the Tribunal of 21 May 1998 under s 500 of the Act bound the Minister (presumably for all time) from acting as he did under ss 501 and 502 of the Act in October 1998.

326. The ground for seeking prerogative relief asserting unreasonableness (assuming its availability under s 75 of the Constitution) can equally be quickly disposed of. That the Minister made a decision that no reasonable person could make, as to the absence of good character of this persistent offender, with the long criminal record that he has in two countries, is a preposterous proposition.

     Orders

327. I would allow the Minister's appeal with costs. The decisions made by the Full Court of the Federal Court should be set aside and, in place of the orders made by the Full Court, it should be ordered that the appeal to that Court be dismissed with costs. The application for relief under s 75(v) of the Constitution should be dismissed with costs.