REASONS FOR JUDGMENT
KIEFEL J
The background to this appeal is set out in the reasons of Carr and Sundberg JJ. As the history of this matter discloses, the applicant succeeded in having the matter remitted by the primary Judge for determination again. On the hearing of the appeal further relief was sought, and the matter was put, on the basis that his Honour ought not to have made the orders for remitter without making the declarations which had been sought, namely:
"A. That the appellant is not a person who is taken not to be of good character within the meaning of regulation 4(1) of the Migration Regulations 1989;
B. That there are no reasonable grounds upon which the respondent could form the reasonable belief that the appellant had been involved in activities involving contempt, or disregard for the law, within the meaning of Regulation 4(1)(a)(iii) of the Migration Regulations 1989;
C. A declaration that there were no reasonable grounds upon which the respondent could form the reasonable belief that the appellant had at any time been convicted of an offence in circumstances indicating habitual contempt or disregard for the law within the meaning of regulation 4(1)(b)(iii) of the Migration Regulations 1989."
Additionally, the further amended notice of appeal sought orders varying those made by the primary Judge, so that the following directions would apply to the matter as remitted:
"(i) the appellant be provided with sufficient particulars of information, allegations and conclusions relied upon by the respondent to enable the appellant to demonstrate that they are untrue and to enable the appellant to properly respond to them;
(ii) to the extent full disclosure of the information held by the respondent may reveal sources properly to be kept confidential the respondent provide the appellant with a reasonable alternative means for addressing the accuracy, reliability and weight of the relevant material and for responding to it."
These directions were said to be necessary were this court to conclude that procedural fairness had not been given to the applicants. On the view I have taken of the matter, it is unnecessary for me to deal, at any length, with questions as to orders and directions framed in this way. Relief by way of these declarations was no doubt seen as necessary to overcome any suggestion that the appeal was without utility, since the applicant sought only to succeed on different bases. That was not the subject of any substantial argument in the appeal. The terms of the declarations sought would appear to have the effect of substituting the court's conclusion on the facts with those of the decision maker, an impermissible course. The directions are too vague and they appear to require the court to frame what might be necessary, after viewing the confidential material, if that be the course taken. It is this confidential material which, in my view, was the true focus on the appeal.
The Grounds of Appeal - Categories
The matter has become seemingly complex. There are a substantial number of grounds for review and on this appeal they must necessarily be dealt with in separate categories, according to whether they have been the subject of prior determination and, where they have, to the particular issue arising with respect to them.
The first category comprises those grounds dealt with by Beaumont J (Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540) with respect to the 1992 decision, namely that the decision-maker took into account irrelevant considerations in concluding the question as to the applicant's character which arises under the Migration Regulations, adverse to him, and that the applicant had been denied natural justice. His Honour the primary Judge held that the repetition of the arguments on these grounds would amount to an abuse of process. Another question which arises with respect to the ground concerning procedural fairness is as to whether the primary Judge ought to have viewed the confidential material to determine whether the applicant had been properly informed of all relevant matters. Those grounds which fall conveniently into a second category are those which, it is said, were not dealt with by the primary Judge and include error of law; that there was no evidence to support the conclusion as to character; that the decision was unreasonable in the sense referred to in administrative law; and that it was an improper exercise of power. If it be the case that his Honour has not dealt with those grounds, the question which then arises is whether it is necessary or desirable to remit them to the primary Judge for further consideration.
It was also submitted that the primary Judge did not deal with each respect in which it was alleged there had been a failure to take into account a relevant consideration. The applicant succeeded before his Honour on this ground, his Honour concluding that the decision-maker ought to have taken into account the affidavit of Mr Ho. Whether that conclusion is correct is an issue in the cross appeal. The applicant on his appeal contends that the ground may be made out on other bases.
Lastly, it is necessary to address the question as to whether the circumstances surrounding the decision-making process were such as to provide a basis for a reasonable apprehension of bias on the part of the decision-maker. His Honour the primary Judge held that they did.
Matters dealt with by Beaumont J
The delegate's decision in question depended upon opinions formed as to the character of the applicant, by reference to the Migration Regulations. Regulation 4(1)(a)(iii) provides:
"4.(1) For the purposes of these Regulations, a person is to be taken not to be of good character if:
(a) …
(iii) the applicant has, in the reasonable belief of the Minister, been involved in activities indicating contempt, or disregard, for the law or for human rights…"
And Regulation 4(1)(b) provides that that requirement as to good character is not made out if:
"(b) in the case of an applicant for an entry visa …the applicant has at any time been convicted of an offence …in circumstances indicating, in the reasonable belief of the Minister, habitual contempt or disregard, for the law, or for human rights."
The report to the delegate was, in all material respects, in the same terms as that which had been prepared for the purpose of the 1992 decision, the subject of Beaumont J's determination. The paragraph which contained the error of reasoning had however been excised.
In connection with the question arising under regulation 4(1)(b), the report referred to the limits to what might properly be drawn from the applicant's connection with particular activities and as to what they might suggest of his connection with criminal groups. It went on to discuss what was said to be contained in the confidential information, which had been obtained over several years and was described as reliable. This is the information which was held by French J not to be liable to production in the public interest. That information, the report explained, implicated the applicant in criminal activities.
Beaumont J dealt first with the ground that the decision-maker had taken into account irrelevant considerations. After observing that the question posed in the regulation had been specifically addressed in paragraphs 22 to 29 of the departmental report, his Honour went on to deal with the argument that "the material relied on by the decision-maker was incapable of giving rise to the requisite belief" and distinguished Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 565 for the reason that the report relating to the applicant here showed that "the decision-maker appreciated the need to consider each of the convictions in its proper context and to address the current situation". His Honour then went on (549):
"It is said, on behalf of the applicant, that the reported activities of others, whether Triads or not, should not have been used as a basis for inferring that the applicant was not of good character. Again, it is necessary to read the report as a whole to understand the process of reasoning at pars 22 to 29. Reading the report as a whole and, specifically, pars 22 to 29, it appears that there was material before the decision-maker, including the confidential information, on which it was open to him to form the reasonable belief that the ingredients specified in reg 4(1)(b) existed.
In my view, these were not irrelevant considerations for present purposes, even if, for other purposes, there might be room for debate about their significance. …"
A similar argument concerning reg 4(1)(a)(iii), was rejected by Beaumont J for the same reasons (550), although his Honour went on to hold that the delegate had been mistaken in applying a policy consideration to the questions posed by the regulations.
The respondent to this appeal submitted that the applicant ought to be taken to have abandoned the other grounds (the second category I have earlier identified) not pursued before Beaumont J, but which were raised in the proceedings before the primary Judge and there argued. The primary Judge, at an early point in his reasons, appears to have discounted the prospect that the failure to have litigated matters to conclusion earlier could constitute an abuse of process, or that a party could be held estopped with respect to those issues. I should add that his Honour's conclusion that issue estoppel could not, on any basis, be said to arise in the present case, was not challenged by the respondent on this appeal. It sought only to support the primary Judge's finding that re-litigation, of what had been determined by Beaumont J, amounted to an abuse of process.
A conclusion of abuse of process is not one usually sought at a final hearing. When it is said to arise the party adversely affected by the litigation usually seeks to stay or restrain their continuation. An application to strike out the proceedings as being an abuse of process, and on other grounds, was heard before Branson J and dismissed. His Honour the primary Judge was in a position where he was required to determine whether it was an abuse of process for the applicant to present the same arguments as those determined by Beaumont J, or to decide them. The process undertaken by the primary Judge was to consider whether the present application differed in any material respect from that considered by Beaumont J, and to consider the evidence available on each occasion. His Honour then determined that there was no factual difference, save for the agent's submissions and the affidavit of Mr Ho.
Where further evidence is sought to be relied upon in subsequent proceedings, that factor would usually take the matter out of the category of one re-litigated. In addition to the evidence just mentioned, which is relevant at least to the ground that relevant considerations had not been taken into account, this case has the added complication that there is said to be the possibility of further evidence. I refer to the information which the applicant considers might be found in the confidential material. And, as mentioned previously, it is said to be essential to a detriment of the ground of natural justice and also the wider evidentiary grounds which, it is submitted, the primary Judge did not determine. It is appropriate, in this case, to deal with his Honour's conclusions as to abuse of process on the basis that no further evidence will be available, and then to consider whether resort ought be had to the confidential information. This course follows the way in which the matter was argued. Whilst the focus of the appeal, and the applicant's prospects of success in my view lay with the confidential information, the applicant also relied on grounds which had regard only to the terms of the regulations and the material in the departmental report which formed the basis for the delegates' decision.
His Honour the primary Judge concluded, and stated shortly, that to re-adjudicate the issues determined by Beaumont J would be an abuse of process. That was so because there was no new material bearing upon the matters sought to be raised. His Honour referred to Roser v Immigration Review Tribunal (No 2) (1992) 29 ALD 182, and the discussion by O'Loughlin J, that repetitive proceedings could amount to an abuse of the processes of the court. Noting that the respondent did not rely upon any improper purpose on the part of the applicant, his Honour observed that, nevertheless, an abuse of process may be constituted where "claims advanced are untenable and have no chance of success or because the same issues have been litigated previously …".
That the courts have jurisdiction to take steps to prevent the continuation of proceedings which are an abuse of the court's process is undoubted: see Metropolitan Bank v Pooley (1885) 10 App Cas 210 and Hunter v Chief Constable of the West Midlands Police [1982] AC 529. The majority (Mason CJ, Deane and Dawson JJ) in Walton v Gardiner (1993) 177 CLR 378, 393 held that, for proceedings to amount to an abuse of process, it was not necessary that an issue estoppel operate, nor was it essential that some ulterior and improper purpose be shown. The absence of an operative estoppel or the difficulty in determining whether that doctrine has application to all proceedings, especially in criminal proceedings, has in part been responsible for the development of case law in this area: see Rogers v The Queen (1994) 68 ALJR 688. Reichel v McGrath (1889) 14 App Cas 665, and other earlier cases, have been seem as decided at a time when recourse to the doctrine of issue estoppel was not possible. (See the observations of Lord Denning MR in McIlkenny v Chief Constable of the West Midlands [1980] QB 283, 322). Whilst motive is not a pre-requisite to proceedings liable to be stayed or struck out as an abuse of process many of the cases where these orders have been made were decided on this ground: for example Williams v Spautz (1992) 174 CLR 509. McIlkenny v Chief Constable of the West Midlands was also concerned with an improper purpose, the use of civil proceedings to attack the decision in former criminal proceedings (although McHugh J in Rogers v The Queen (707) discerned another such purpose).
I do not however understand the cases, including Walton v Gardiner, to hold that the mere repetition of the same argument in proceedings, otherwise properly constituted, will in all cases amount to an abuse of process, even if the argument has been the subject of some determination. In Walton v Gardiner (393), when discussing attempts to litigate a case again, where an estoppel did not arise, their Honours included in the example given the fact that "the continuation would be unjustifiably vexatious and oppressive…" as the reason for it constituting an abuse. Whilst their Honours went on (394) to refer to general statements (particularly those in Jago v District Court (NSW) (1989) 168 CLR 23) to the effect that the jurisdiction ought be exercised as and when the administration of justice requires, I take this to be in connection with the suggestion that the class of case, where an abuse of process might arise, should not be considered as closed. And, in my respectful view Brennan J in that case (417), although in dissent on the substantial question, was correct to observe that caution needs be exercised in justifying a refusal to determine a case by reference to concepts of fairness or administration of justice.
The present case does not involve any new or unusual feature. It raises the question whether it is impermissible to pursue the same argument again, where no new evidence is sought to be adduced. Of the three categories most commonly found in the decided cases, namely illegitimate purpose, that the proceedings would be unjustifiably oppressive, or that they would bring the administration of justice into disrepute (as listed by McHugh J in Rogers v The Queen (706) it is the second with which we are here concerned. The first is not raised and the last mentioned requires, I would think, the prospect of some serious reflection upon the system of justice as for example, in Hunter v Chief Constable of Midlands where there was seen to be a collateral attack on the earlier proceedings themselves.
Whilst continued attempts to re-litigate the same question will, at some point, likely result in a finding that the proceedings in which they are sought to be raised again are vexatious or oppressive, in my view such a finding will not be made only by reference to the fact of repetition. To reach such a conclusion one would need to consider the nature of the prior decision or decisions and in particular as to whether the question decided was binding as precedent or whether, in any event, it dealt with each aspect of the argument now sought to be advanced. As part of that latter consideration, the court in the subsequent proceedings would be alert to any merit the argument might have. In cases where the pursuit of the same argument is vexatious or oppressive, but where it is open to the court to determine the matter afresh, the reason it will not do so is because it is plain that the argument has no merit and that the proceedings are a futility. Where the matter has been addressed in a detailed way by a court before this conclusion might quickly be reached, especially where the applicant does not point to any error in the process of reasoning. It might then be seen as oppressive or unjust to subject the respondent to its adjudication again. It is, I consider, these effects of which their Honours spoke in Walton v Gardiner (and see also Cox v Journeaux (No 2) (1935) 52 CLR 713). A conclusion as to the merits of the argument already dealt with by Beaumont J is one which is readily able to be reached in this case. This is to say, that I concur in the conclusion reached by the primary Judge, but for different reasons. In this respect I have considered whether his Honour the primary Judge, by earlier references to untenable cases, had the applicant's prospects of success on these grounds in mind, but it seems to me that his Honour's later statements make it clear that his Honour considered that an abuse of process might be constituted by mere repetition, absent any new feature. In that view I must respectfully differ.
The primary Judge was free to depart from the reasoning and conclusions reached by Beaumont J. Indeed they did not form the basis for the orders ultimately made by Beaumont J. This court was informed that it was for that reason that they were not appealed from (a different course from that undertaken with respect to the primary Judge's decision on this appeal). And as my reasons which follow disclose, there is no basis shown for conclusions different from those stated by Beaumont J. No doubt the primary Judge considered it necessary to address the arguments advanced with respect to abuse of process. It seems to me however that, at the stage the proceedings had reached there was no practical benefit to the respondent in determining that question and what was required was a decision as to the merits.
Relevant Considerations
The primary Judge determined that the affidavit of Mr Ho was a relevant consideration to which the decision maker ought to have had regard, and that the decision was vitiated by this error. I am unable, respectfully, to agree that there was in the circumstances an obligation to have regard to the contents of the affidavit. In this respect I concur in the reasoning of Carr and Sundberg JJ on this aspect of the cross-appeal. There is nothing which I would wish to add.
It was also submitted for the applicant that the primary Judge did not consider all of the bases put forward with respect to this ground. The considerations nominated in paragraphs 3(a)(b)(c)(d)(e)(f)and (g) of the application for review, as matters necessary to be considered by the decision-maker, may be summarised as follows: that the establishments operated by the applicant's companies were subject to a system of licensing under the Hong Kong Ordinances; that the issuing authority was required to be satisfied that the proprietor (which term included the applicant) was a fit and proper person; and that renewal of the licenses in question was dependent upon that opinion being maintained, upon the establishment being run in a proper manner and upon the operator having no conviction connected with vice. Inferentially the applicant had satisfied the licensing authority of all these matters. Additionally it was contended that the delegate ought to have had regard to a reference, as to the applicant's integrity and moral character, which had been provided by the clerk of the course of the Royal Hong Kong Jockey Club. The last mentioned factor, which amounts merely to someone else's opinion of the applicant, could never satisfy the description of a matter which the decision-maker was bound to take into account, in the sense referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39. The other factors to which the applicant refers might permit some inferences, favourable to the applicant, to be drawn. The extent to which they might operate as influential is, I would think, debateable given the questions posed under the regulations. In any event, whilst they are factually relevant, as having a connection with the subject matter of the opinion to be formed as to the applicant's character, they are not so in the administrative law sense, which is to say, such that it could be said the decision maker was clearly bound to take them into account in coming to a conclusion as to the applicant's character. In this respect the decision of Carr J in Li Shi Ping v Minister for Immigration (1994) 35 ALD 225 is to the point.
The primary Judge did not, as the appellant contends, consider these questions. Given the history of this matter I would be reluctant to remit them to his Honour for decision, unless such a course was necessary. This court is in as good a position to determine them, as matters of law. In my view no additional ground for a conclusion that the delegate acted to take into account a relevant consideration, has been established.
Other Grounds said not to have been dealt with by the primary Judge
The first ground under this head is summarised as error of law, and is said to have regard to the construction of each of reg 4(1)(b) and reg 4(1)(a)(iii) of the Migration Regulations and, in particular, to what must be shown before the requisite belief can be held. The other grounds said not to have been dealt with by the primary Judge, and which I have earlier outlined, are that there was no evidence to enable such a view to be held and that the decision was unreasonable in that it was one not fairly and rationally open. The remaining ground, improper exercise of power by the decision-maker, which alleges a subjective and speculative assessment, will fall to be determined on the same bases as unreasonableness. Other particulars given of these grounds in my view amount to impermissible attempts to dissect parts of the evidence and attribute greater or lesser weight to features of it. I have confined my considerations to the questions which properly arise: as to the requirements of the regulations and the evidence available to and utilised in the delegate's reasoning to conclusion.
Regulation 4(1)(b) is concerned with inferences which might be drawn from convictions for offences. The applicant's principal contention, in this connexion, was that the regulation must be seen as confined to the circumstances of the offence itself, that is to say, facts and events relating to the commission of the offence or forming part of the offence. The report (pars 20-27, which correspond with 22-29 of the report before Beaumont J) referred to the nature of the offences and what might be one drawn from them with respect to the question posed by the regulation, namely whether habitual contempt or disregard for the law, on the part of the applicant, was shown. It suggested that the number of offences was of concern, and indicated a pattern of behaviour. Further the offences, and in particular those of writing lotteries and running gaming houses, were suggestive of a pattern of organised behaviour which was indicative of disregard for the law. It pointed out that, whilst a significant number of persons in Hong Kong were then also involved in illegal gambling, the repetition of such offences, to the extent in the present case, was not usual. What the regulation required was that the conviction, and the offence to which it related, be considered in its context. This was observed by Beaumont J (549) who found that this had been appreciated by the decision-maker. And in my view the applicant's contention that consideration of the series of convictions, as disclosing a course of conduct, was not permitted for the purpose of the enquiry must also be rejected. Even on a narrow reading of the terms of the regulation, the later convictions could be viewed in the background of earlier similar convictions. It would seem a strange result that a regulation concerned with whether a person can be said to have abided by and accepted the laws of a country, could be answered only by reference to the facts surrounding each separate offence, when clearly a most important factor is that the applicant has continued to offend. That was not the only basis given in the report for an adverse finding, although the number of convictions was stated as of greater concern. As I have said, the nature of the offences and their connection with criminal societies, were also adverted to.
Regulation 4(1)(a)(iii) is also concerned with whether a disregard for the law was shown, but the test there stated has regard to the nature of the activities undertaken. The essence of the applicant's argument was that the regulation required the applicant to be seen as personally involved in the activities in question and that there was no evidence to enable that view to be reached. It was submitted, then, that the conclusion reached, of a belief of the applicant's involvements in such activities, was speculative or unreasonable. In this respect I should add, for later purposes, that where Beaumont J refers to the confidential information which was before the decision-maker, it cannot be suggested that Beaumont J himself had regard to it. His Honour's assessment was conducted on the basis of the summary of the confidential material contained in the report.
What the submission overlooked, in my view, was the information referred to in the departmental report which, it was said, directly implicated the applicant in those activities. As with much of the argument advanced for the applicant, it was, in reality, concerned more with the sufficiency of the evidence than its application to the question posed by the regulation.
I have dealt with these grounds on the basis that his Honour the primary Judge had not determined them, which is the view I have reached. In relation to the reasons of Beaumont J for rejecting the applicant's arguments concerning the regulations, the primary Judge said:
"In relation to the application of reg 4(1)(a)(iii), Beaumont J said an argument was put similar to that advanced in the context of reg 4(1)(b) and that, for similar reasons, he could not accept the argument. I understand this to mean he found there was material before the decision-maker, including the confidential material, on which it was open to form the reasonable belief that the ingredients in the regulation were satisfied and the ground of irrelevant considerations was not made out, even though there might be room for debate about the significance of some of the matters.
It follows that all of the issues raised on behalf of the applicant under this head have been the subject of prior determination by Beaumont J, save anything which might arise as a new matter from the agent's submission. …"
It is correct to observe, I think, that the findings of Beaumont J went beyond those relevant only to the ground of irrelevant consideration. In the process of dealing with that question, his Honour expressed views which could be regarded as determinative of the "no-evidence" and "unreasonableness" grounds. It seems to me that his Honour the primary Judge was of this view. His Honour did not however adopt the findings or reasoning as correct. Such an approach might have amounted to a determination. Rather, his Honour went on to hold that re-adjudication of those same issues would be an abuse of process. For the reasons I have earlier given, I am unable to agree that such repetition is impermissible. And one of the factors which, in my view, would have been relevant to the question as to whether there was an abuse of process, was whether the matter had been fully argued and determined on the prior occasion. In my view the primary Judge was obliged to consider the arguments. I have however come to the conclusion that there is no merit in them and, again, that there is no need to remit them to the primary Judge for further consideration.
The Procedural Fairness Ground - Confidential Information
The matters specified in the report, in respect of which the applicant submits he ought to have been given more extensive or detailed information were, in summary, that information from confidential sources indicated that he was strongly implicated in involvement in criminal activity and as an associate of known criminals and Triads, that on balance of probabilities he was involved in criminal activity, and that establishments run by him or his companies had Triad connections. They are the same as those in the 1992 report and they formed the basis for the opinion concerning Mr Chu's character, which opinion was accepted by the delegate.
Beaumont J found that the information provided to the applicant drew his attention to these allegations and that he had been specifically invited to respond to them. In those circumstances his Honour accepted that the process had been a fair one. His Honour distinguished Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, where the applicant had successfully argued that the information provided was insufficient because in this case a summary of the confidential information, the basis of the allegations, had been made available. His Honour went on (548):
"…in Kurtovic, the applicant for relief was merely invited to make submissions without having any means of knowing what matters might be taken into account adverse to him. In the present case, although the applicant was not given the details of the confidential information, he was on notice of its essential features."
His Honour the primary Judge held also, in respect of this ground, that it would be an abuse of process to allow it to be reargued. Again, I am unable to agree with that conclusion. But as with the other grounds, to which findings of abuse of process were applied, I can discern no basis, in any event, for departing from the conclusions reached by Beaumont J. The real focus of the applicant's case was the confidential material. His Honour the primary Judge was asked to view the confidential information, but declined to do so. His Honour said:
"There is no additional evidence relevant to the issues upon which Beaumont J has already adjudicated. It would be an abuse of process to reopen those matters.
In these circumstances, there is no reason for the Court to now take the opportunity of examining the confidential material. This court cannot second guess the judgment of Beaumont J that the particulars were adequate. It is patent from his reasons that the contents of the confidential material were such that for the delegate to rely on it would not be unreasonable unless it was adequately answered …".
This court was advised on the hearing of the appeal that his Honour had been informed that Beaumont J had not in fact read the confidential material and that Beaumont J had been asked not to read the material. In these circumstances Beaumont J accepted that what was provided was the "essential features" of the confidential material, but by reference to the summary of it in the department report. From the passage just quoted it would seem that his Honour, the primary Judge, was mistaken in his belief that Beaumont J had read the confidential information. But that is not an end to the matter. The question which then arises is whether the primary Judge ought to have done so.
It was submitted, for the applicant, that there were two justifications for the court itself undertaking an examination of the confidential material, on an application for judicial review. In the first place it was said to be necessary that the court satisfy itself that there was, in fact, evidence of the kind referred to in the departmental report. With respect to this contention, which seeks the aid of the court to pursue the "no evidence" ground earlier dealt with, the prospect that it is no more than a fishing expedition is obvious. The second basis put, on first consideration, appears to have more weight. It was submitted that the only means by which the applicant can be assured that he has had a proper opportunity to respond is by the court checking the confidential material, since he has been denied access to it on grounds of public interest. I have concluded however that in neither case is the court justified in undertaking the task of review of the documents. With respect to the argument based in procedural fairness, the stated basis misrepresents the proper question for a court concerned with review of administrative action, which is whether the applicant has had notice of matters to which a response was necessary.
Most of the cases concerned with the court's role in viewing confidential material arise in connection with claims for privilege from production. It is then often necessary for the court to look at the documents in question, to determine whether they have the quality claimed and to answer the question whether it is in the public interest that they not be produced: see Alister v The Queen (1984) 154 CLR 404; Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523. And it has been held that a bare assertion, that inspection is necessary or will assist the court, will not suffice. What must be shown is "some concrete ground for belief which takes the case beyond a mere 'fishing' expedition": Air Canada v Secretary of State for Trade [1983] 2 AC 394, 439; 414, 439, 456; Alister v The Queen (414, 439), (although Gibbs CJ and Brennan J in Alister suggested that a more liberal approach ought be taken in criminal proceedings). If such an approach were to apply to proceedings for judicial review the applicant's application, to ascertain whether evidence exists, would fail. Putting aside the strength of the case which needs to be shown to warrant discovery and production, which is not here relevant, the cases show that fishing expeditions should not be encouraged in litigation: Alister (439). The underlying rationale for such an approach, having regard particularly to the nature of litigation in our system and to the role of the courts, to which I shall refer, may be discerned. A refusal to permit a party to fish for other grounds has been applied to discovery in the context of applications for judicial review: Lloyd v Costigan (1983) 62 ALR 284, 292-3; Murchison v Keating (1984) 1 FCR 341, 344 and the relevant authorities were reviewed by Wilcox J in Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78, 83.
Discovery involves the use of the processes of the court to ascertain material which might be used in a party's case. In Lloyd v Costigan, 292, the Full Court considered that those processes ought not be utilised to attempt to make out a case and find whether an allegation has any basis by simply alleging that a decision was made without basis. I can see no reason why the same principle ought not to be applied in the present case with respect to each of the bases upon which the request was put, including that relating to procedural fairness. The application put on that latter ground was said to arise in a different context than that in which the cases concerned with discovery were decided, and to require special consideration. One difference, arguably, between the process undertaken by the court with respect to documents said to be immune from discovery, and the exercise with which we are presently concerned, is that the latter would require a higher level of judgment than what is essentially an assessment of a document's character. But in either case, in my view, there must be shown some basis for the court's intervention beyond what is said to be necessary to satisfy an applicant's concerns. Accepting that those concerns are genuinely held, the exercise sought to be undertaken by the court would not produce for the applicant reasons which he might understand and accept, but a stated conclusion which is not reviewable. Such a process is not one consonant with the role of a judge in our system. In applications for production of documents it is undertaken because there is no alternative and because some ground is shown for it.
Here the court's aid is not sought to ascertain the delegate's reasons, so that an assessment might be made of what was relevant or influential and, then, whether those matters were brought to the applicant's notice. The delegate's process of reasoning is here seen by reference to the departmental report which was adopted, and which was both logical and detailed in its terms. No doubt has been cast on the sufficiency of the reasons. The report stands as the delegate's statement of what was relevant or influential in arriving at the conclusion stated, and there is nothing to which the applicant can point which might suggest some other factor operated on the delegate's mind. At this point it seems to me that the only warrant for the court's intervention could be because the applicant is entitled to more information or because the court assumes there may have been something operating as influential, with respect to the decision reached, but which was not stated in the reasons.
Not every piece of information needs be made available to a person who would be affected by a decision. Only that which is proposed to be taken into account in coming to a decision is to be provided, so that the person might have an opportunity to respond: Kioa v West (1985) 159 CLR 550, 587, 627-9; Minister for Immigration v Pashmforoosh (1989) 18 ALD 77; Somaghi v Minister for Immigration (1991) 31 FCR 100, 119; Heshmati v Minister for Immigration (1991) 31 FCR 123; Telstra Corp Limited v Kendall (1994) 55 FLR 221, 230. In R v Gaming Board for Great Britain (1970) 2 QB 417, Lord Denning MR considered that the obligation extended to "sufficient indications of the objections" raised against the applicants for certificates. That appears to be a very general statement, and one which might extend to any allegation made. There is however nothing further in the reasons to suggest this was intended. The "objections" may be taken to refer to those the decision-maker held or considered to be of importance.
The applicant's request of the court on the procedural fairness ground was limited to an assessment as to whether the matters brought to the applicant's attention were a fair summary of all the information available to the delegate. I have however also considered, in connexion with the ground, the other category of information relevant to judicial review, namely that which the delegate was obliged to take into account. I have however disregarded the prospect that there might be some such information in the confidential material, favourable to the applicant but unknown to him, as too speculative.
In my view, absent some reason for doubting the summary of factors which is said to have led the delegate to conclude that the requirement of good character was not met, these being the matters brought to the applicant's attention, the court should not examine the material upon which its was founded. To do so would be to undertake an investigation and to assess what weight ought be given to pieces of information, without evidence or explanation from the delegate. On the view I have taken of the matter I do not consider it would have been correct for the primary Judge to have viewed the material and I have refrained from doing so.
The Cross-Appeal
I have referred above to the issue concerning the contents of the affidavit of Mr Ho. In my view, it could not be said to amount to a consideration which the delegate was bound to take into account. I would allow the cross-appeal on this ground. There then remains the other ground of the cross-appeal, which challenges the primary Judge's finding that "the parties or the public could reasonably entertain an apprehension that the delegate might not have brought an impartial and unprejudiced mind to the reconsideration, so that the delegate (could) give 'proper, genuine and realistic consideration to the merits of the case:' Chan v Minister for Immigration, Local Government and Ethnic Affairs, (Gummow J, 11 December 1987, unreported)".
In this case the issue, as to whether there could be a reasonable apprehension of bias, arose after the making of the decision. The applicant submitted before the primary Judge, by reason of the method by which it can now be seen that the conclusion was arrived at, and by reference to a file note made available subsequent to the decision, there is properly raised the prospect that there was prejudgment of his application.
The test to be applied, when the issue arises, is whether a fair minded observer would be led, from the material, to conclude that the person making the decision might not have brought an impartial mind to the resolution of the matter: Laws v ABT (1990) 170 CLR 70, 87. There is attributed to the hypothetical fair-minded observer, knowledge of the actual circumstances of the case: Laws, 87; Webb v The Queen (1994) 181 CLR 41, 55-6, 73; Minister for Immigration v Mok (1994) 55 FCR 375,394. That is a matter of some importance here. In my view none of the four considerations listed by his Honour, the primary Judge, operating alone or together, support a conclusion that bias might reasonably have been apprehended.
His Honour did not consider that the fact that the 1992 and 1994 reports were almost identical in their terms to be conclusive. With respect to the reports his Honour noted however that a correction had not been made to the latter, to the additional time which had passed since the applicant's last conviction. His Honour was of the view that one might infer a lack of proper consideration of the facts. His Honour did not suggest that this of itself affected the decision reached. Rather his Honour seems to have considered that it said something of the approach taken to the applicant's case. It is possible to conclude that some lack of care may have attended the preparation of the later report. I am unable to see that it could convey more. There were however other factors identified by his Honour.
His Honour also considered that the attachment of the submission from the applicant's agent, without an analysis of it, in circumstances where the affidavit of Mr Ho was not put before the delegate, and a file note suggesting a "view" held in the department, of which the delegate was an officer, combined with the firstmentioned error, led one to the conclusion that there may not have been a genuine consideration of the merits of the case.
Whilst the factors are expressed to have a cumulative effect, it must be possible to draw something from them, which is strengthened when considered together. The fair-minded observer, with knowledge of the circumstances, would know that, whilst the affidavit of Mr Ho was not provided, the agent's submission contained a full enough summary of it, and that the delegate had been advised, by the terms of the report, to have regard to it. This does not in my view enable the conclusion that the delegate would not, or was being advised not to, pay heed to the matters which had been raised either in the affidavit or the report. As to the file note, the terms of it amount only to a prediction as to what the outcome might be. It was not stated as a matter of policy within the department or as the view of the delegate. Whilst the author of the note spoke as if others shared that view, as to the outcome of the application, and might have intended to refer to others in the department, there is no basis shown for the conclusion that it expressed a view held by the department, including the delegate.
It seems to me that the facts were such as to provide explanations and qualifications with respect to the consideration listed by his Honour the primary Judge. With respect, I cannot see that a fair-minded observer could conclude that they displayed an approval to the decision-making process such that the prospect of pre-judgment could be said to be "firmly established", as it is required to be: Re: J.R.L.; ex parte C.J.L. (1986) 161 CLR 342, 352; Gascor v Ellicott [1997] 1 VR 332.
Summary
I am of the view that the affidavit of Mr Ho was not a relevant consideration and the decision of the delegate ought not to have been set aside on this basis. No further basis has been shown on the appeal for a conclusion that other relevant considerations were not taken into account. As to the other grounds not dealt with by the primary Judge, concerning the questions as to the applicant's character arising under the Migration Regulations, I consider there is no merit in them. And, in my view, no proper basis in law is shown for the court to examine the confidential information itself. As to the primary Judge's other basis for remitting the matter, namely that there was a reasonable apprehension of pre-judgment, I am unable respectfully to agree that that conclusion could be reached.
Conclusion
In my view the appeal should be dismissed. The cross-appeal succeeds on both bases for remitter. In these circumstances I would order that the order of his Honour the primary Judge be set aside and the applicant's application for review dismissed with costs. I would also order that the applicant pay the respondent's costs of the appeal.
I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.