Federal Court. For the purpose of s 501(6)(c)(ii) of the Migration Act 1958 (Cth), can the communication of a belief, or the existence of an uncommunicated belief, be considered "present general conduct"? Further, there are 2 incidents of the common law procedural fairness rule: 1) to give an affected person an opportunity to comment on adverse material obtained from other sources; 2) to identify to them issues not obviously open on the known material. Were these incidents excluded by s 51A(1)?
The Applicant married his Australian cousin in Lebanon when he was nearly 22 and she was 12 years and 9 months old. The marriage was lawful under Lebanese law and consistent with Sharia law. Many years later, the Applicant applied for a prospective marriage visa (subclass 300). At an interview with an officer of the Department, the Applicant was asked about the appropriate age for a woman to be married in Lebanon and he answered (in summary) that it would be whenever they reached puberty.
Paragraph 501(6)(c) of the Migration Act 1958 (Cth) provided as follows:
(6) For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character
The Minister found as follows, in the context of assessing whether the Applicant satisfied the above provision: "I also consider that his displayed lack of understanding of the immoral nature of his conduct is consistent with his recently expressed beliefs in marriage and associated sexual relations with a person who is considered a child bride - and referring to his own children in the context of marrying of children - provided they have reached puberty, and his past conduct, as outlined above, outweighs his recent and continuing good behaviour".
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question", in that the Minister "must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone"?
Question 2: "Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character", must continuing conduct that shows a lack of enduring moral quality be demonstrated?
Question 3: Does s 501(6)(c)(ii) of the Migration Act 1958 (Cth) require the Minister to have regard to both “past general conduct” and “present general conduct” in determining whether the visa applicant is of good character?
Question 4: Does the dichotomy in paragraph (c) of s 501(6) between “criminal conduct” dealt with by sub-para (i) and “general conduct” which is separately dealt with in sub-para (ii) suggest that “general conduct” is intended to refer to conduct other than criminal conduct?
Question 5: Can the communication of a belief be considered "present general conduct" for the purpose of s 501(6)(c)(ii)?
Question 6: Can an uncommunicated belief be considered "present general conduct" for the purpose of s 501(6)(c)(ii)?
Question 7: In assessing s 501(6)(c)(ii), was the communication or expression by the Applicant of his beliefs at the interview what the Minister took into account as "conduct"?
Question 8: Can it be said that it was permissible for the Minister to have had regard to the Applicant's beliefs (or the Minister’s perception of those beliefs) in assessing, pursuant to s 501(6)(c), whether the Applicant was "not of good character", on the basis that the "considerations of conduct specified by s 501(6)(c) ought not be regarded as intended to be exhaustive of all of the matters the Minister may take into account"?
Question 9: If the answers to Questions 7 and 8 are respectively "no" and "yes", does it matter whether the Minister took into account the Applicant's beliefs as conduct or as beliefs?
Question 10: Should the Minister have "looked to Australian law as a reflection of public policy on the standards and expectations of the Australian community regarding the acceptable age of marriage"?
Question 11: Does mere reference made in the Minister’s reasons to the submissions made by an applicant establish that the Minister had regard to those submissions?
Question 12: Could a "proper assessment of a person’s good character ... be reasonably made in the absence of the moral compass provided by the standards and expectations of the Australian community"?
Question 13: Are the provisions in the Marriage Act 1961 (Cth) dealing with foreign marriages an exhaustive reflection of Australian standards and expectations on that subject?
Question 14: If the answer to Question 13 is "no", does the fact that the Minister "left out of consideration entirely the provisions of the Marriage Act dealing with foreign marriages, when those provisions speak to the very subject the Minister was considering – Australia’s standards and expectations as to the acceptable marriageable age of a foreign marriage – [demonstrate] that the Minister failed to give meaningful consideration to those standards and expectations"?
Question 15: Although their marriage was not recognised as valid in Australia, it became valid when the Applicant's wife turned 16, by operation of s 88D(3) of the Marriage Act 1961 (Cth). In determining that the Applicant failed the character test and in the exercise of its discretion to refuse to grant the visa under s 501, the Minister found that the Applicant's "conduct in courting, marrying and having sexual relations with [with wife] while she was a child was unacceptable and inappropriate by reference to the standards and expectations of the Australian community". Can it be said that, "by failing to take into account the expectation of the Australian community as reflected in the provisions of the Marriage Act dealing with foreign marriages, the Minister failed to deal with an important aspect of the claim he made and ... failed to give meaningful consideration to the standards and expectations of the Australian community"?
Question 16: The Minister drew the Applicant's attention to Direction No 79, which put the Applicant on notice that the Minister may refuse his application by reason of a concern to protect the Australian community from the risk of harm occasioned by him engaging in "further criminal or other serious conduct". In the context of the common law rule of procedural fairness to visa refusals under s 501 and putting to one side any provisions of the Migration Act which might oust that rule, can it be said that, "in the absence of the Minister specifying the conduct or the further conduct which may be the basis of the particular concern, or the circumstances otherwise making that basis obvious", the Minister’s obligation to direct the Applicant to the particular concern in question was not discharged?
Question 17: Sections 51A and 57 were found in Subdivision AB of Division 3 of Part 2 of the Migration Act. Section 51A(1) provided: "This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". Sections 357A(1) and 422B(1) were the counterparts to s 51A(1). Sections 359A and 424A were the counterparts to s 57. Can it be said that "s 51A (as well as counterpart provisions such as s 422B(1) of the Act) only has effect in ousting the natural justice hearing rule in relation to a matter which is dealt with by both the natural justice hearing rule and a provision of Subdivision AB"?
Question 18: If the answer to Question 17 is "yes", are the 'matters' to which ss 57(1), 422B(1) and 422B(2) refer the discrete subject matters of the provisions in Subdivision AB of Division 3 of Part 2 and Division 4 of Part 7 of the Migration Act?
Question 19: If the answer to Question 18 is "yes", is the discrete subject matter of each provision indicated by, but not limited to, the terms of each provision?
Question 20: If the answer to Question 17 is "yes", does it follows that "an incident of the obligation of procedural fairness can fall outside the scope of the discrete subject matter of a provision like s 57"?
Question 21: The common law rule of procedural fairness specifies "two separate but related incidents of the requirement to provide an affected person with a fair opportunity to be heard. The first is that the person be given an opportunity to comment or respond to adverse material put before the decision-maker “from other sources”, that is, material received from sources other than the affected person. The second incident is the requirement upon the decision-maker to identify to the person affected any issue or conclusion critical to the decision which is “not apparent from its nature or the terms of the statute” or “which would not obviously be open on the known material”?" (emphasis added). Is the first incident encompassed within the 'matter' dealt with by s 57 of the Act?
Question 22: Is the second incident encompassed within the 'matter' dealt with by s 57 of the Act?
Question 23: In assessing the need to protect the Australian community, the Minister considered that if the Applicant was in Australia there was a risk that he would "condone under-aged marriage practices involving child-brides in Australia and this risk may extend to approving the practice in regard to his own daughters"? Was the Minister's reasoning irrational, on the basis that "[w]hilst on the Minister’s findings the exposure of the daughters to their father’s influence or demands created the risk to the daughters, that exposure was not dependent upon [the Applicant] being a resident of Australia"?
The FCA answered those questions as follows:
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