Hicks v Nixon

REASONS FOR JUDGMENT THE COURT: 1 This is an application for leave to appeal against interlocutory orders made by Nicholson J on 22 March 2004 refusing interlocutory relief and orders for discovery sought by the applicant. The interlocutory relief was claimed by the applicant in a notice of motion filed on 15 September 2003 in the proceedings below. In those proceedings, the applicant sought to challenge, by way of constitutional writ, the refusal by the Minister's delegate, the first named respondent, to grant the applicant a visa to enter Australia from New Zealand. The interlocutory relief involved an order that the respondents, and each of them, be restrained from acting on the decision of the delegate in refusing to grant the applicant a visa to enter Australia from New Zealand and an injunction to prohibit the respondents, and each of them, from preventing his return to Australia pending the hearing and determination of the substantive application. 2 The argument underpinning the claim for interlocutory relief appeared to rest upon the proposition that, by reason of earlier proceedings in which a decision cancelling a visa held by the applicant while within Australia had been set aside, the applicant was therefore the holder of a visa which entitled him to entry into Australia and that he did not in fact require a further visa for that purpose. This premise is not reflected in the proceedings before Nicholson J, which relate to the decision to refuse an entry visa at the point of entry into Australia from New Zealand. 3 Appreciating the difficulty, counsel for the applicant sought leave of the Court to amend the originating application to seek declaratory relief and ancillary orders in relation to the existence or continuing subsistence of the visa which he had previously held and which had been purportedly cancelled, a cancellation set aside by the decision of French J in other proceedings in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757. An appeal against that decision was dismissed by the Full Court - Minister for Immigration & Multicultural & Indigenous Affairs v Hicks [2004] FCAFC 114. 4 The application for leave to amend the originating application in that way was refused and, having been refused, there is no basis upon which leave should be granted to entertain an appeal against his Honour's refusal of interlocutory injunctive relief. Counsel recognised that consequence of the refusal of the proposed amendment. The remaining matters which counsel sought to agitate on the leave application concerned a refusal of orders for discovery in aid of grounds of review asserting want of procedural fairness and improper purpose. 5 So far as the improper purpose ground is concerned, the Court was taken to documents on the record which were said to give rise to at least the basis for inferring that the respondents had, in effect, set their faces against the re-entry of the applicant into Australia from New Zealand and had done so for a purpose in some way related to the pendency of a special leave application by the Minister from the decision of the Full Court of the Federal Court dismissing the appeal against the earlier decision of French J. 6 The Court, notwithstanding vigorous submissions by counsel and a detailed review of the relevant documents, is quite unable to see how they give rise to the suspicion of a ground of improper purpose. It may be that at trial improper purpose will be demonstrated in some other way but, absent any suspicion for such a ground, the allegation of improper purpose at this stage is simply an allegation and does not provide a basis for ordering discovery as sought by the applicant. We refer in that respect to the observations of the Full Court in WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169. The applicant also seeks discovery of documents which it is said were relied upon by the relevant decision-maker in refusing the grant of a visa but which were not shown to him. This relates to a procedural fairness ground for challenging the refusal of the re-entry visa. According to the respondents much of the relevant documentation is covered by the protected information provisions of the Act. The applicant disputes this but, as has already been pointed out from the Bench in the course of argument, it appears to be sufficient, in order to make out want of procedural fairness, for the applicant to show that the decision-maker relied upon information, treated as material, which was not disclosed to the applicant. Justification by reference to the character of the documents as protected information would be a matter for the respondents to raise and to show. That debate does not require any access to the content of the relevant documents, and that is true whether it is protected information that is spoken of or indeed the content of the migration alert list, which was another document in respect of which discovery was sought under this head. The Court sees no proper basis upon which discovery of the documents in issue would advance the case of the applicant or be relevant to it one way or the other having regard to the way in which the procedural unfairness contentions are framed. 8 For the preceding reasons, in our opinion, we should refuse leave on all bases and dismiss the application for leave. The applicant is to pay the respondents' costs of the application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.