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[1998] FCA 1556
Federal Court of Australia
1998-12-02
Lindgren J
Original judgment source is linked above.
INTRODUCTION The applicant ("Mr Choi") applies under s 476 of the Migration Act 1958 ("the Act") for review of a decision of a delegate of the respondent ("the Minister") made on 12 September 1997 in Hong Kong not to grant to him a sub-class 456 Business (Short Stay) Visa. The decision was made under s 501 of the Act, which provides, relevantly, as follows: "501 (1) The Minister may refuse to grant a visa to a person, ... , if: (a) subsection (2) applies to the person; ... " (2) This subsection applies to a person if the Minister: (a) ... ; or (b) is satisfied that the person is not of good character because of the person's association with ... a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct." The decision-maker was satisfied that Mr Choi was not of good character because of his association with a group or organisation who or that he had reasonable grounds to believe had been or was involved in criminal conduct, namely, the "Wo Shing Wo Triadgroup". Subsection 476 (1) of the Act provides that application may be made for review by the Court of a "judicially-reviewable decision" on any one or more of the grounds set out in that subsection. Subsection 475 (1) provides that the decisions listed in that subsection are "judicially- reviewable decisions". One of these is a decision made under the Act relating to a visa. The decision impugned was such a decision. Subsection 475 (2) provides that certain decisions there described are not judicially reviewable decisions. The decision impugned is not excluded by subs 475 (2).
GROUNDS OF APPLICATION Mr Choi relies on the grounds described in pars 476 (1) (e) and (g) of the Act, which are as follows: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;" "(g) that there was no evidence or other material to justify the making of the decision." Subsection 476 (4) provides that ground (g), the "no evidence" ground, is not to be taken to have been made out unless subs 476 (4) is satisfied. In order for that subsection to be satisfied, it is necessary (i) that the decision-maker be required by law to reach the decision only if a particular matter is established and that there be no evidence or other material from which the decision-maker could reasonably have been satisfied that the matter was established; or (ii) that the decision-maker have based the decision on the existence of a particular fact which did not exist.
BACKGROUND FACTS Mr Choi is a director and member of an Australian company, Austcorp International Limited. On 3 September 1997, Mr Choi applied to the Australian Consulate General Hong Kong Migration Office for the visa, stating that he intended to attend a meeting of directors of the company and to review and explore further investments in Australia. He proposed to arrive on 17 September 1997 and to stay for five days. This is not the first time Mr Choi has been refused a visa by reference to s 501. In 1995 he was refused a visa under the section on the basis of information received from the Australian Federal Police ("AFP") that in 1983 he attended a ceremony in Macau by which he either became, or was "promoted" as, a member of the Wo Shing Wo Triad group, and further information supporting the proposition "that persons join Triad societies for life". Mr Choi then, as now, strongly denied that he had, or ever had had, any Triad association of any kind. His solicitors sought particulars of the allegation mentioned. Not only have none ever been provided: it has been claimed to have been a mistake that he was even informed of the allegation that he attended the ceremony in Macau in 1983. Mr Choi's solicitors have made the point that without particulars, their client can only unequivocally deny the allegation and supply evidence of his good fame and character in Hong Kong, whereas with particulars they might be able to disprove the allegation convincingly. Earlier in this proceeding, Mr Choi sought by motion an order for production for inspection by his legal representatives of two files of documents identified as "INT/5/22 CHOI Pat Tai" and "INT/3/25 Wo Shing Tong Triad", held at the Australian Consulate General Hong Kong. The Minister and the Commissioner of the AFP made claims of public interest immunity which I upheld (my Reasons for Judgment were delivered on 25 August 1998). On the hearing of the motion and for the purpose of deciding upon it, I inspected the documents in respect of which the claim was pressed. These were folios 12, 13 and 15 of the first file mentioned and certain folios from the second file which were exhibited to an affidavit of Dario Castello sworn 2 July 1998 filed in support of the Minister's claim. On the present final hearing, Mr Choi has tendered those documents, which, of course, neither he nor his legal representatives have seen. The Minister has objected to their admission into evidence, submitting that the upholding of the claims of public interest immunity has the effect that they cannot be admitted into evidence on the present final hearing. I said that I would defer ruling on this issue until judgment.
REASONING I turn first to the issue just mentioned. I can dispose of the Minister's submission briefly. When I upheld the claims for public interest immunity, I did so by reference to Mr Choi's motion for production of the documents for inspection by his legal representatives. In holding that in the public interest the documents were immune from production for that purpose, I did not hold that in the public interest they were immune from being tendered or admitted into evidence on the final hearing. Nor do I so hold now. The affidavits which were read in support of the claims of the immunity were directed to establishing only a public interest which required that the documents not be made available to Mr Choi's legal representatives or to the public. Those affidavits did not attempt to establish, if any evidence could conceivably establish, that the public interest required that the documents should not form part of the evidence on the final hearing. I admit the documents as exhibits and direct that they be placed in envelopes to be sealed and marked "not to be opened except by, or by order of, a judge". In fact, I have not found it necessary to rely on that evidence in determining the present application. The hearing proceeded on the basis that it was not in dispute, and in any event there was evidence before me (apart from the immune documents), that the decision-maker had been informed by the AFP that unidentified sources available to the AFP had revealed that Mr Choi had participated in the Wo Shing Wo Triad society ceremony in Macau in 1983. I turn now to the substance of Mr Choi's application. In various ways, he submits that the grounds described in pars (e) and (g) of subs 476 (1) are made out by a lack of evidence before the decision-maker. A "Summary Decision Record" dated 12 September 1997 and signed by the decision-maker listed the following as "evidence on which findings were made": " · file INT/5/22 'CHOI Pat Tai'…; · file INT/3/25 'Wo Shing Tong Triad' …; · Migration Act 1958, particularly s 501; · Record of Hearings on Asian Organised Crime before the Permanent Subcommittee on Investigations of the US Senate Governmental Affairs Committee, October-November 1991, particularly the Staff Statement of 5 November 1991; · a book entitled "The Triads" by Martin Booth, Grafton press 1991, particularly [the sections] dealing with the Wo Shing Wo Triad Society in Hong Kong; · other [unspecified] general contextual information on the criminal activities of Triad societies in Hong Kong obtained from open sources such as newspaper reports and general reading material." The decision-maker's first finding of fact was that Mr Choi was a member of, and was therefore associated with, a Triad group, having participated in the Wo Shing Wo Triad ceremony in Macau in 1983. He reached this view after balancing the advice from the AFP against Mr Choi's denials. He recorded that the AFP: "is a reliable source of information with a lengthy experience of organised crime in Hong Kong built up through its presence in Hong Kong and its formal liaison with the Hong Kong law enforcement community and counterpart law enforcement agencies in other Consulates in Hong Kong." The decision-maker then referred to the character of the confidential information and the weight to be attached to Mr Choi's denials, in these terms: "…I noted that the advice from AFP is detailed and is able to confirm Mr Choi's identity with reference to more than one method of personal identification. I considered that the advice left no room for doubt about the identity of the identified individual. I considered that Mr Choi's denials of Triad membership could reasonably be given lesser weight as Mr Choi could reasonably be seen to have vested interests in maintaining a denial of Triad membership. These vested interests derived from the penalties for admission of Triad membership provided in Hong Kong legislation and, more importantly, from the inherently secretive nature of Triad societies and the vital interest of members of Triad societies in protecting their anonymity as a source of strength and advantage." I would not have described the advice from the AFP in the terms expressed in the first paragraph set out above, but this does not matter. Second, the decision-maker found (a) that there were reasonable grounds to believe that a Triad organisation such as the Wo Shing Wo Triad was involved in criminal conduct, and (b) "that persons join Triad societies for life". On File INT/3/25 "Wo Shing Tong Triad" was a document containing the following:
"(B) IT IS OUR CONTENTION THAT PERSONS JOIN TRIAD SOCIETIES FOR LIFE. CORE OF ORIGINAL TRIAD MOVEMENT WAS QUOTE IF I SHOULD CHANGE MY MIND AND DENY MY MEMBERSHIP OF THE HUNG (TRIAD) FAMILY I WILL BE KILLED BY A MYRIAD OF SWORDS UNQUOTE. TRIAD RENUNCIATION SCHEME FROM 1989-91, GAVE PERSONS CHANCE TO REHABILITATE (OF WHICH VERY FEW DID). THOSE WHO DID SHOULD PROBABLY BE CONSIDERED ADMISSIBLE WHILE THOSE WHO DID NOT HOWEVER, ARE OBVIOUSLY MAINTAINING THEIR VOWS OF MEMBERSHIP FOR LIFE, REGARDLESS OF WHATEVER STORY LAWYER WILL SPIN. (C) WHAT MUST BE KEPT IN MIND IS THAT REVEALING THEIR ACTIVITIES COULD MEAN DEATH OR HARM TO THEM BY OTHER TRIAD MEMBERS. DISCLOSURES COULD RESULT IN PHENOMENAL SUMS OF MONEY RELATING TO THEIR QUOTE BUSINESS UNQUOTE DEALINGS. OR, PENALTIES IN HKONG FOR CONTINUOUS TRIAD MEMBERSHIP COULD RESULT IN 7 YEARS IMPRISONMENT (IN PRC IT IS DEATH). THUS IT IS HARDLY LIKELY YOU COULD EVER GET TRUTHFUL CONFESSIONS ABOUT THEIR ACTIVITIES. (D) DESPITE CLAIMS WE HAVE SEEN, THESE PERSONS JOIN TRIADS OF THEIR OWN VOLITION. WHILE THEY MAY GO THROUGH QUIESCIENT PERIOD, THEY CAN BE RE-ACTIVATED ANY TIME IN THEIR LIFE AND HELP OUT THEIR FELLOW TRIAD MEMBERS WHO THEY BONDED WITH FOR LIFE. (E) FYI IT IS ESTIMATED THAT ONLY 15 PER CENT OF TRIAD MEMBERS HAVE ANY CONVICTIONS." The decision-maker made the following findings: "Triads are illegal organisations in Hong Kong which are widely believed by expert sources and widely reputed by open sources to be heavily involved in various illegal activities; Absence of criminal convictions does not exclude the possibility of a person being a Triad member or office bearer; Triad membership is a long-term commitment, involving a virtual pledge to assist the Triad at any time in return for the 'value-added' power of being able to use the threat of recourse to a Triad organisation to settle disputes in one's favour; Triad members can be found in many different walks of life in Hong Kong and overseas, including legitimate business circles - indeed the strength and tenacity of the Triads as organisations stems from the success of their members in penetrating legitimate organisations. Law enforcement authorities see the stripping of Triad members' anonymity as an important step in combating their activities." The decision-maker was satisfied that Mr Choi was not a person of good character by virtue of his association with the Wo Shing Wo Triad group. The decision-maker also considered information about Mr Choi's business ties with Australia, and the harm which was likely to result if a visa were granted and Mr Choi was not a person of good character. He recorded: "I felt that the grant of a visa despite a negative character finding would carry with it the long-term indicator to the Australian community that an identified Triad member is able to travel to and enter Australia to pursue business interests and in the absence of compassionate or humanitarian ties to Australia. I considered that this indicator would have a negative impact on the Australian community and that, on balance, the harm caused would be undue in relation to the claimed benefit to the Australian community from Mr Choi's entry." Counsel for Mr Choi has not been concerned with the decision-maker's findings that Triad groups are criminally active or with the proposition "that persons join Triad societies for life", and, in my view, for good reason. Having regard to the general nature of these findings, the material before the decision-maker was of a kind on which he was entitled to rely. The period since 1983 is a long one but the proposition "that persons join Triad societies for life" accepted by the Minister, overcame the fact that some fourteen years had passed without the recording of any relevant criminal conviction against, or criminal activity by, Mr Choi. I do not think that either ground (e) or (g) is made out in relation to the issue of the association between Mr Choi and the Wo Shing Wo Triad group either. It is true that the material before the Minister was hearsay-on-hearsay information which I would describe as non-specific. Notwithstanding the information contained in the documents covered by the public interest immunity, the substantive allegation remains one of participation of an unspecified kind in a Wo Shing Wo Triad ceremony at an unidentified place in Macau on an unspecified date in 1983, of which the AFP was informed by an unidentified source. But in my opinion, it was a matter for the decision-maker whether to treat the AFP information as credible, and his doing so did not involve an error involving an incorrect interpretation of s 501 or an incorrect application of that section to the facts as found by him (ground (e)), and it does not appear that there was no evidence or other material to justify the making of the decision (ground (g)). In relation to ground (e), it was simply not an error for the decision-maker to apply s 501 to the facts as found by him noted earlier and as a result to be satisfied that Mr Choi was not a person of good character because of his association with a group or organisation who or that the Minister had reasonable grounds to believe had been or was involved in criminal conduct. Unlike the position in Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 565, in this case there was material before the decision maker, noted earlier, to the effect that "persons join Triad societies for life". In Chan, the only fact on which the decision was based was the conviction of Mr Chan in 1960 (some thirty years before the decision to refuse him a visa) for being a member of a Triad society. In my view, the additional material in this case makes reasonable what may have been an unreasonable decision had the evidence established nothing more than that Mr Choi attended a Triad ceremony in 1983. It is therefore unnecessary for me to explore the question to what extent the "reasonableness" of a decision is open to challenge in light of par 476 (2) (b) of the Act, inserted after the decision in Chan. Ground (g) is, perhaps, the more relevant of the two grounds to Mr Choi's grievance. Again, it is perhaps sufficient to say that the AFP information supported the first finding of fact referred to earlier and that that and other material supported the second group of findings of fact referred to earlier. I turn next to par 476 (4) (a). Section 501 empowered the Minister to refuse to grant the visa only if, relevantly, he was satisfied that the applicant was not of good character because of his or her association with a group or organisation satisfying the description set out. It is not the case that s 501 relevantly required the Minister to reach the decision to refuse to grant the visa only if it was the objective fact that Mr Choi was not of good character by reason of an association of the kind described. Rather, the condition of the existence of the power of refusal is only the Minister's being satisfied of that matter. It is arguable that the Minister's state of being satisfied to which the opening words of par 501 (2) (b) refer is not a "particular matter" "required by law" to be "established" within the meaning, and for the purposes of, par 476 (4) (a) (but cf Irving v Minister for Immigration, Local Government and Ethnic Affairs (1993) 44 FCR 540 (Drummond J) at 560 and Adams v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 280 (FCA/Drummond J) at 283-285). Be this as it may, it suffices to say that in my opinion there was logically probative "material" for the purposes of par 476 (4) (a), albeit not evidence admissible according to the rules of evidence, from which the decision-maker could reasonably be satisfied that Mr Choi was not of good character because of his association with the Wo Shing Wo Triad group. I turn next to par 476 (4) (b). For the purpose of that provision, the decision-maker based his decision on the existence of a particular fact, that is, Mr Choi's participation in a Wo Shing Wo Triad ceremony in Macau in 1983. But it is not enough to establish ground (g) for Mr Choi merely to prove as an objective fact on the balance of probabilities in this Court that he did not participate in such a ceremony. Such proof notwithstanding, it would remain for Mr Choi to establish, in terms of par 476 (1) (g), that there was "no evidence or other material to justify the making of the decision" by the decision-maker. Paragraph (b) of subs 476 (4) isa "gateway" through which an applicant must pass before it is permissible for the Court to proceed to hold that ground (g) of subs 476 (1) is established (see Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 (Wilcox J) at 519-521, and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC) at 221, 223 (per Black CJ)). It suffices to say in terms of s 476 (1) (g) that in my opinion the hearsay-on-hearsay material from the AFP was able to justify the making of the decision to refuse to grant the visa. Counsel for Mr Choi submitted that grounds (e) and (g) were also established by the decision maker's having failed to take into account relevant considerations and having taken into account irrelevant considerations. He did not explain how this result came about or refer to pars 476 (3) (d) or (e). The "relevant considerations" relied on were that Mr Choi had visited Australia previously on "visitor's visas" without any untoward result and that the purpose of his proposed visit was to pursue lawful business interests. The "irrelevant consideration" relied on was: "that the grant of a visa despite the negative character finding would carry with it the long-term indicator to the Australian community that an identified Triad member is able to travel to and enter Australia to pursue business interests in the absence of compassionate or humanitarian ties to Australia." I reject the submission. It is sufficient for me, without exploring the matters to which I have referred, to say that in my opinion, having regard to the legislative context and purpose, it is clear that the decision maker was not bound at peril of invalidity to take into account the suggested relevant considerations or prohibited at peril of invalidity from taking into account the suggested irrelevant one: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). In the result, neither ground of review is established. Before passing from the application, I record, as I did in my Reasons for Judgment published on 25 August last, my concern that someone (I presume the AFP), should check the correctness of the information on which the Minister has acted. It is a serious thing either way: that a member of a criminal organisation should be granted a visa or that a wrongly accused man should be denied one on an allegation that is not particularised, that is made by an unidentified accuser, and that is, for these reasons, effectively beyond challenge.
CONCLUSION For the above reasons, the orders of the Court are that: (1) Folios 12, 13 and 15 in file "INT/5/22 Choi Pat Tai" be admitted into evidence. (2) Folios from file "INT/3/25 Wo Shing Tong Triad" exhibited to the affidavit of Dario Castello sworn 2 July 1998 in this proceeding be admitted into evidence. (3) The documents referred to in (1) and (2) be placed in an envelope or envelopes to be sealed and marked "not to be opened except by, or by order of, a Judge". (4) The application be dismissed. (5) The applicant pay the respondent's costs.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.
Solicitor for the Respondent: Australian Government Solicitor
Chan
Minister for Immigration, Local Government and Ethnic Affairs
(1991) 31 FCR 565
(1993) 44 FCR 540
(1986) 162 CLR 24
(1986) 13 FCR 511
(1992) 34 FCR 212