Minister for Immigration and Citizenship v Zhang

Federal Court of Australia (Full Court)|2009-09-24|Before: Foster JJ

INTRODUCTION 1 Division 4 of Pt 2 of the Migration Act 1958 (Cth) ("the Act") prescribes a legislative scheme to secure the presence in Australia of a non-citizen whose presence is required for the purposes of the administration of criminal justice. 2 It does so by a two-stage process. The first stage is the issue by the Attorney-General ("the Attorney") of a criminal justice entry certificate or a criminal justice stay certificate. The second stage is the issue, in the absolute discretion of the Minister for Immigration and Citizenship ("the Minister"), of a criminal justice visa. 3 The present proceedings concern the cancellation by the Attorney of a criminal justice stay certificate issued by the Attorney in respect of the respondent to this appeal, Mr Kuang Lun Zhang, and the consequent cancellation by the Minister of Mr Zhang's criminal justice stay visa. In the Federal Magistrates Court, Mr Zhang succeeded in obtaining relief in respect of those cancellations. The Minister and the Attorney have appealed to this Court seeking to set aside the Federal Magistrate's decision. 4 The criminal justice stay certificate was issued by a delegate of the Attorney on 18 June 2004. It was cancelled by another delegate on 24 April 2008. The cancellation was effected without the delegate affording Mr Zhang a hearing or an opportunity to make submissions as to why the criminal justice stay certificate should not be cancelled. 5 The principal issue which arises in this appeal is whether the delegate's cancellation of the certificate was conditioned upon an obligation to afford Mr Zhang procedural fairness. 6 That question is to be considered essentially as one of statutory construction of Div 4, in the light of its subject matter, scope and purpose: Kioa v West (1985) 159 CLR 550 at 585 per Mason J, 619 per Brennan J. 7 The criminal justice stay certificate was issued at the request of an officer of the Department of Immigration and Multicultural and Indigenous Affairs (as it was then). In 2004, it was the Department's view that Mr Zhang would be required to stay in Australia for six months only. The terms of the request were somewhat cryptic. So too were the terms of the Department's request, some four years later, to cancel the certificate. 8 The request to cancel the certificate was contained in an email from an officer of the Department. The email contained a one-line statement that Mr Zhang was no longer required to give evidence in the matter for which the certificate had been issued. 9 Counsel for Mr Zhang also contend that, even if the exercise of the power of cancellation was not conditioned by the requirements of natural justice, the Attorney's delegate erred in law in concluding that the statutory conditions for the exercise of the power were satisfied. 10 The effect of this submission was that, upon the proper construction of s 162, the delegate was legally bound to have before her something more than an unexplained one-line statement from an officer of the prosecuting authority that Mr Zhang was no longer required to give evidence. 11 The only other issue which arises in the appeal is whether, in the event that the procedural fairness question or the sufficiency of evidence question is answered favourably to Mr Zhang, relief ought to be denied in the exercise of the Court's discretion. 12 That issue arises because the Attorney submits that cancellation of the visa is inevitable so that relief would be futile.

THE LEGISLATIVE SCHEME 13 Division 3 of Pt 2 of the Act deals with visas for non-citizens. Section 38 of the Act, which is contained in Div 3 of Pt 2, creates a class of temporary visas to be known as criminal justice visas which are to be granted under Sub-div D of Div 4 of Pt 2. 14 The effect of s 44(1) of the Act is that the provisions of Div 3 which deal with applications for visas and the code of procedure for dealing with such applications do not apply to criminal justice visas. 15 Division 4 is headed "Criminal justice visitors". The object of that Division is stated in s 141 to be that: … if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration. 16 The specificity of the purpose for which the Division was enacted is emphasised by the definition of the otherwise broad phrase "the administration of criminal justice". This phrase is defined in s 142 to mean: (a) an investigation to find out whether an offence has been committed; or (b) the prosecution of a person for an offence; or (c) the punishment by way of imprisonment of a person for the commission of an offence. 17 The powers which are conferred on the Attorney by Div 4 may be delegated to a limited class of persons as stated in s 143. They are senior Commonwealth public servants, namely: · the Secretary to the Attorney-General's Department; or · a Senior Executive Service ("SES") employee, or an acting SES employee, in the Attorney-General's Department. 18 Provision is also made in s 143 for a very limited delegation of power to a commissioned police officer in the Australian Federal Police to issue a criminal justice stay certificate to remain in force for no longer than five days. That power may only be exercised where the non-citizen is at a "port". The apparent purpose of this delegation is to permit the police officer to issue a certificate where a person is about to leave Australia from an airport or other facility. 19 Sub-division B provides for the issue of criminal justice entry certificates. Section 145 empowers the Attorney to give a certificate providing that the presence of a non-citizen in Australia is required for the administration of criminal justice if three pre-conditions are met. 20 The first pre-condition is that the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of: · the Extradition Act 1988 (Cth); or · the International War Crimes Tribunals Act 1995 (Cth); or · the International Criminal Court Act 2002 (Cth); or · the Mutual Assistance in Criminal Matters Act 1987 (Cth); or · the administration of justice in relation to an offence against the law of the Commonwealth. (emphasis added) 21 The second pre-condition is that the presence in Australia of the non-citizen for the stipulated purposes would not hinder the national interest. 22 The third pre-condition is that satisfactory arrangements have been made to ensure that the person or organisation who wants the non-citizen to be brought to Australia will meet the cost of bringing the non-citizen to Australia, the cost of keeping him or her in Australia and the costs of removal. 23 There is a corresponding provision in s 146 for the issue by an official of a State of a certificate providing that the temporary presence of a non-citizen who is outside Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State. In Div 4, "State" includes "Territory". 24 If the certificate is issued by a State official, the Attorney may endorse it with a statement that it is to be a criminal justice certificate for the purposes of Div 4. 25 Sub-division C deals with the issue of a criminal justice stay certificates for unlawful non-citizens. In the ordinary course of events, such a person would be liable to be placed in immigration detention under Div 7 of Pt 2 and removed from Australia under Div 8. He or she might also be liable to deportation under Div 9. 26 Section 147 empowers the Attorney to give a criminal justice stay certificate which temporarily prevents two of the statutory consequences of the status of an unlawful non-citizen, namely removal or deportation, from taking place. 27 The pre-conditions for the issue of a criminal justice stay certificate are similar to those for the issue of a criminal justice entry certificate, save that they are adapted so as to deal with the fact that the non-citizen is already in Australia. In particular, the pre-condition requiring an assessment of the likely danger to the national interest is not a condition for the issue of a criminal justice stay certificate. 28 Section 147 is a pivotal section to be considered on the appeal. We set it out in full: If: (a) an unlawful non-citizen is to be, or is likely to be, removed or deported; and (b) the Attorney-General considers that the non-citizen should remain in Australia temporarily for the purposes of: (i) the Extradition Act 1988; or (ia) the International War Crimes Tribunals Act 1995; or (ib) the International Criminal Court Act 2002; or (ii) the Mutual Assistance in Criminal Matters Act 1987; or (iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and (c) the Attorney-General considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia; the Attorney-General may give a certificate that the stay of the non-citizen's removal or deportation is required for the administration of criminal justice. 29 There is a corresponding provision for the issue of a stay certificate by an authorised State official in relation to an offence against a law of the State. This provision is found in s 148. 30 The legislation does not provide for any process by which an unlawful non-citizen might apply for the issue of either type of criminal justice stay certificate nor does the legislation stipulate that the person affected by the issue of such a certificate must be notified of the fact that the Attorney is considering issuing such a certificate. The non-citizen affected by the certificate may not, and, very often, will not have any idea that the Attorney is considering the issue of such a certificate. 31 The consequences of the issue of a criminal justice stay certificate are stated in s 150 which provides that, if such a certificate is in force, the non-citizen is not to be removed or deported. 32 The other consequence attaching to the status of unlawful non-citizenship, that is to say, liability to be placed or to remain in immigration detention, is not removed by the issue of a criminal justice stay certificate. It is only removed if the Minister exercises his or her discretion to issue a criminal justice visa: see below at [44] and [45]. 33 An alternative means of securing the presence of an unlawful non-citizen in Australia is left open by s 151. That section provides that, if an unlawful non-citizen is to be, or is likely to be removed or deported, the Act does not prevent a court issuing for the purposes of the administration of criminal justice "in relation to an offence against a law" a criminal justice stay warrant to stay the removal or deportation. 34 If a criminal justice stay warrant is in force, the non-citizen is not to be removed or deported: s 151(2). 35 Sub-division D deals with the issue of criminal justice visas. It provides for two different types of visa so as to cover the entry of a non-citizen who is outside Australia and the stay in Australia of a non-citizen who is already present in Australia. 36 The two classes of visa are described in s 155. A criminal justice entry visa is a visa which permits a non-citizen to travel to and enter, and remain temporarily, in Australia: s 155(1). 37 A criminal justice stay visa is one which permits a non-citizen to remain temporarily in Australia: s 155(2). 38 An essential prerequisite for the issue of each class of criminal justice visa is the issue by the Attorney of a criminal justice certificate as is appropriate; that is to say, a criminal justice entry certificate for a criminal justice entry visa and a criminal justice stay certificate for a criminal justice stay visa: s 156 and s 157(a). 39 An alternative basis for the issue of a criminal justice stay visa is the issue by a court of a criminal justice stay warrant: s 157(b). 40 The criteria for the issue of either class of criminal justice visa are stated exhaustively in s 158. They "are, and only are": · the issue by the Attorney of a criminal justice certificate of the relevant type, or the issue by the court of a criminal justice stay warrant; and · a decision by the Minister "in his absolute discretion", that it is appropriate to grant the visa, having regard to: (i) the safety of individuals and people generally; (ii) in the case of a criminal justice entry visa, arrangements to ensure that the non-citizen can be removed; and (iii) any other matter the Minister considers relevant. 41 Section 159 states the procedure for obtaining a criminal justice visa. It makes no provision for an application by the prospective visa holder. It merely states that if a criminal justice certificate or a criminal justice stay warrant is in force, the Minister may consider the grant of a criminal justice visa: s 159(1). 42 The scope of the Minister's discretion is reiterated in s 159(2) which provides that, if the Minister is satisfied that the criteria have been met, he or she may grant the visa in the Minister's "absolute discretion". 43 A holder of a criminal justice entry visa must not do any work in Australia, whether for reward or otherwise: s 160(2). No such prohibition applies to the holder of a criminal justice stay visa. 44 The effect of the grant of a criminal justice visa is stated in s 161. It constitutes, inter alia, permission to remain in Australia while it is in force. 45 A criminal justice stay visa also entitles the holder to be released from immigration detention if, at the time when the visa is issued, that person is in detention: s 161(2). A criminal justice visa does not prevent the holder leaving Australia: s 161(3). 46 The holder of a criminal justice entry visa may not apply for a visa other than a protection visa: s 161(5). 47 Sub-division E deals with the cancellation of criminal justice certificates, criminal justice warrants and criminal justice visas. 48 The critical provision for present purposes is s 162(1) which provides for the cancellation of a certificate by the Attorney if the presence in Australia of the person "is no longer required for the purposes for which it was given". 49 The full terms of s 162 of the Act are as follows: (1) If the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then: (a) if it was given under section 145 or 147, the Attorney-General; or (b) if it was given under section 146 or 148 - an authorised official; is to cancel it. (2) Before cancelling the certificate, the Attorney-General or authorised official is, an adequate time before doing so, to tell the Secretary: (a) when it is to be cancelled; and (b) the expected whereabouts of the non-citizen when it is cancelled; and (c) the arrangements for the non-citizen's departure from Australia. 50 The reference to "the Secretary" in s 162(2) is a reference to the Secretary to the Department of Immigration and Citizenship ("the Department"). 51 The Attorney is not required to notify the person in respect of whom the certificate was granted of his intention to cancel the certificate. Nor is the Minister required to notify the holder of a criminal justice stay visa of the imminent cancellation of that visa. This position stands in stark contrast to the position under s 51(4) of the Act as it stood immediately before the 1992 Amendments which brought in the current provisions. Under s 51(4), a criminal justice certificate could not be cancelled before reasonable notice in writing of the proposed cancellation had been given to the non-citizen and to the Minister. 52 Provision is also made for the cancellation of a stay warrant if the presence of the person is no longer required. If the warrant is still on foot, "a person entitled to apply for the warrant's cancellation must apply to the court for the cancellation": s 163(1). 53 Importantly, s 164 provides that the effect of the cancellation of a criminal justice certificate or a criminal justice stay warrant is that "any criminal justice visa granted because of the certificate or warrant is cancelled".

BACKGROUND FACTS 54 The factual background is set out in some detail in the first of two judgments delivered at first instance by Federal Magistrate Smith. His Honour's first judgment was interlocutory and dealt with the grant of interim relief: Zhang v Minister for Immigration and Citizenship [2009] FMCA 196 ("Zhang"). His Honour's second judgment dealt with the grant of declaratory relief and constitutional writs: Zhang v Minister for Immigration and Multicultural Affairs (No 2) [2009] FMCA 458 ("Zhang No 2"). 55 The background set out below is mostly drawn from his Honour's first judgment but we have supplemented it with other material that was in evidence in the Federal Magistrates Court. 56 Mr Zhang is a citizen of the People's Republic of China who arrived in Australia on 16 June 2003. Shortly afterward, on 27 June 2003, he lodged an application for a protection visa which was refused by a delegate of the Minister. That decision was affirmed by the Refugee Review Tribunal in January 2004. 57 Subsequently, Mr Zhang gave information to the Department complaining about the conduct of the migration agent who had assisted him with his application. The Department then considered that Mr Zhang was a person who could assist it in an investigation and possible prosecution of that migration agent for contraventions of provisions of the Act. 58 On 5 May 2004, an officer of the Department signed a document which was apparently for consideration by his own Department. It was headed "Request for Criminal Justice Stay Visa". It was stated to be a request in respect of Mr Zhang and the Department was shown as the "Requesting Agency". 59 The request was in the form of a questionnaire which in large part dealt with the criteria for the grant of a criminal justice visa stated in s 158 of the Act. It stated that the reason why Mr Zhang was required in Australia was "[w]itness for DIMIA in an investigation of Migration Act offences". 60 The request form stated that the likely duration of Mr Zhang's stay in Australia would be six months. 61 On 18 June 2004, an officer of the Fraud Analysis Unit of the Department of Immigration sent a facsimile to an officer of the International Crime Branch of the Attorney-General's Department in Canberra requesting the issue of criminal justice certificates for 16 persons, including five persons under the age of 18. 62 The facsimile in evidence was redacted so that only the name of Mr Zhang can be seen, but it would seem that the other named persons were also sought by the Department to assist in the investigation of offences involving the same migration agent. 63 On the same day, 18 June 2004, Ms Robin Warner, Assistant Secretary of the International Crime Branch in the Criminal Justice Division of the Attorney-General's Department, issued a criminal justice stay certificate in respect of Mr Zhang under s 147 of the Act. 64 The certificate stated that Ms Warner was a delegate of the Attorney for the purposes of the Act. It recorded in terms of s 147 of the Act Ms Warner's consideration of the criteria stated in that section and certified that the stay of the removal or deportation of Mr Zhang "is required for the administration of criminal justice". 65 Also on 18 June 2004, an officer of the International Crime Branch of the Criminal Justice Division of the Attorney-General's Department sent a facsimile to an officer of the Department of Immigration attaching criminal justice certificates for Mr Zhang and seven other persons. 66 In that facsimile, the officer requested the Department to issue "a visa" for Mr Zhang and the other named persons. 67 On 24 June 2004, an officer of the Department issued a criminal justice stay visa to Mr Zhang. The visa stated: Your stay in Australia as a criminal justice stay visa holder has been approved until the criminal justice stay certificate is cancelled. 68 There was no evidence as to what occurred in relation to the investigation of the offences by the Department of Immigration for the next four years. However, in his application in the Federal Magistrates Court, Mr Zhang stated that: · the Department asked him to be a witness in the case because he was "a victim", and promised him that if the case lasted a long time, it would grant him a permanent resident visa; · during the next four years, the Department refused to tell him anything about the progress of the proceedings. 69 On 20 February 2008, the Department of Immigration delivered to Mr Zhang a letter on the Department's letterhead dated 18 February 2008. The relevant part of the letter was as follows: On 24 June 2004 you were granted a Criminal Justice Stay Visa so you could lawfully remain in Australia for the administration of the criminal justice process. The Criminal Justice Visa was issued to support the investigation and prosecution of [name of another person] for his alleged involvement in providing false or misleading information to the Department of Immigration. The Commonwealth Director of Public Prosecutions (CDPP) has decided the evidence you were prepared to give in this matter will now not be used by the CDPP. This means that your involvement in the case has now concluded and your continuing presence in Australia, to assist in the criminal justice process, is no longer required. You should now make arrangements to depart Australia. The Department of Immigration and Citizenship will pay an economy air fare from Australia to your home country. You have 28 days from the date of receipt of this letter to depart Australia or to apply for another visa. Thereafter, the Attorney-General will consider whether to cancel your Criminal Justice Stay Certificate, which would result in the cancellation of your Criminal Justice Stay Visa - see ss162 and 164 of the Migration Act 1958. 70 Senior counsel for the Attorney submitted that the passages of the letter set out above sufficiently informed Mr Zhang of the critical issue on which the cancellation of the certificate was likely to turn and gave him an opportunity of replying to it. Thus he submitted that, even if the Attorney was subject to the obligation of procedural fairness, it was satisfied by the terms of the letter. We do not agree with that submission. 71 The letter was not sent by the Attorney or by an officer of his Department. It was sent by an officer of the Department of Immigration and Citizenship on the letterhead of that department. The subject matter of the letter was the criminal justice stay visa, not the criminal justice stay certificate. 72 It is true that the letter drew Mr Zhang's attention to the operative provisions of the Act. But in its plain terms, the letter was an instruction to leave Australia or to apply for another form of visa. There was no suggestion that Mr Zhang had any entitlement to address the Director of Public Prosecutions' decision or either of the foreshadowed decisions likely to be made by the Attorney and the Minister. No opportunity was given to Mr Zhang to address the subject matter of the letter. Indeed, the effect of the letter was that he was not entitled to be given such an opportunity. 73 On 14 April 2008, Mr Barry Montgomerie, an officer of the Department, NSW Fraud Control and Investigations, sent an email to Ms Melanie Lindner, a case support officer of the International Crime Cooperation Division of the Attorney-General's Department. There was no indication in the email of the rank or position which Mr Montgomerie occupied in the Department. 74 The email from Mr Montgomerie referred to the dates of issue of the criminal justice certificate and the criminal justice visa. It continued: Mr Zhang is now no longer required to give evidence in the matter for which he was issued the CJC. Grateful if you could please arrange for the cancellation of the CJC to take effect on Monday 28 April 2008. 75 On 14 April 2008, Ms Lindner sent a confidential casework memo to Ms Anna Harmer, an Assistant Secretary in the International Crime Cooperation Division of the Attorney-General's Department. The email stated, inter alia, that the Department had confirmed that Mr Zhang was no longer required to give evidence in the matter for which the criminal justice certificate had been issued and that the Department had requested that Mr Zhang's certificate be cancelled. 76 The casework memo went on to refer to s 162(2) of the Act which requires notification to the Department of the date on which the Attorney intends to cancel the certificate. Ms Lindner requested Ms Harmer to sign an attached facsimile giving the requisite notice to the Department. 77 Ms Harmer sent the fax to the Department on 14 April 2008 giving notice of the matters required by s 162(2)(a), (b) and (c). 78 Also, on 14 April 2008, Mr Montgomerie wrote to Mr Zhang's lawyers, informing them that Mr Zhang's criminal justice stay visa was going to be cancelled. He said: On 28 April 2008 the Attorney General's Department will cease the Criminal Justice Certificate issued to Mr Zhang. This means that Mr Zhang's Criminal Justice Visa will automatically be cancelled that same day, 28 April 2008. 79 In the letter, Mr Montgomerie explained the steps which Mr Zhang would need to take in order to obtain a bridging visa which would have allowed him to remain in Australia while the Minister again considered his request to remain in Australia permanently. In March 2008, Mr Zhang's lawyers had made representations on behalf of Mr Zhang seeking a discretionary decision under s 417 of the Act allowing Mr Zhang to remain permanently in Australia. The Minister had declined to grant that request. 80 On 21 April 2008, Ms Lindner sent a further casework memo to Ms Harmer requesting that she sign the attached form of cancellation certificate for Mr Zhang. The memo repeated the earlier confirmation from the Department that Mr Zhang was no longer required to give evidence. It confirmed that the necessary notification under s 162(2) had been provided to the Department. 81 On 24 April 2008, Ms Harmer, acting as a delegate of the Attorney, cancelled Mr Zhang's criminal justice stay certificate, with effect from 28 April 2008. The Department was notified of the cancellation of that certificate on the same day. 82 The effect of the cancellation of the criminal justice stay certificate was that Mr Zhang's criminal justice stay visa was cancelled by operation of law under s 164 of the Act. The Minister was required by that section to make a record of the cancellation. It is not clear from the evidence on what date the record was made.

THE DECISION OF THE FEDERAL MAGISTRATE 83 In the proceeding before the Federal Magistrate, the Attorney accepted that his Honour was obliged to follow the obiter opinion expressed by Merkel J in Wasfi v The Commonwealth (1988) 83 FCR 16 that the Attorney was bound to comply with the rules of natural justice when making his decision under s 162(1) to cancel the certificate. However, the Attorney reserved his position in the event of an appeal: Zhang No 2 at [14]. 84 The Attorney also conceded before the Federal Magistrate that Mr Zhang was not afforded a hearing by the delegate before she made her decision to cancel the certificate: Zhang No 2 at [15]. 85 The opinion expressed by Merkel J in Wasfi provided the foundation for the orders made by the Federal Magistrate. 86 In Wasfi, Merkel J said at 22 that a decision to cancel a certificate under s 162(1) is not a discretionary decision. He said that, in some cases, the question of whether a person's presence is no longer required might involve a judgment based on evaluation and the weighing up of the facts and circumstances which informed the issue of a certificate under ss 145, 146, 147 and 148. 87 At 26-27, Merkel J also said that the decision of the Attorney to cancel the criminal justice certificate had the effect of changing Mr Wasfi's legal status from a lawful non-citizen not subject to detention, to an unlawful non-citizen who was required to be detained until his deportation or removal from Australia. His Honour continued (at 27): Plainly the power conferred on the Attorney-General under s 162(1) to cancel a Criminal Justice Certificate is one which may destroy, defeat or prejudice a person's legal status. Accordingly, unless there is an exclusion of the rules of natural justice, the Attorney-General was bound to comply with those rules when exercising the cancellation power under s 162(1). 88 Merkel J considered that, consistently with Annetts v McCann (1990) 170 CLR 596, there were no plain words of necessary intendment which excluded the application of the rules of natural justice. He considered that there may be limited matters which a person "whose rights or interests" might be prejudiced by the exercise of the power, might legitimately wish to put forward so that it would not be futile to afford the person an opportunity to be heard (at 27-28). 89 The Federal Magistrate referred at some length to the decision in Wasfi in Zhang at [17]-[19]. In Zhang No 2, the Federal Magistrate proceeded, as we have said, upon the concession that the view expressed by Merkel J was correct. The gravamen of the Attorney's case before the Federal Magistrate was that relief should be refused because the Attorney's decision to cancel the certificate was required in any event: Zhang No 2 at [17]. 90 In rejecting the Attorney's submission, the Federal Magistrate took the view that the same breadth of considerations which may inform a decision under s 147 to issue a certificate could inform a decision under s 162 about whether the person's presence is no longer required: Zhang No 2 at [29]. 91 The Federal Magistrate went on to say at [32]: Once it is accepted that the Attorney-General must form his or her own opinion under s.162 whether a certificate is no longer required for the purposes for which it was granted, then the present decision might not appear to be as simple as it appears in the minute which was sent to the present delegate. In my opinion, a much broader range of information could have been relevantly presented to the present delegate, other than the bald statement that "DIAC confirms that Mr Zhang is no longer required to give evidence and has requested Mr Zhang's CJC be cancelled effective 28 April 2008". Given the terseness of this information, and putting aside whether it was legally sufficient to support an exercise of the power, it becomes very difficult to predict how the Attorney-General's consideration might have developed if Mr Zhang had been afforded natural justice. 92 He also said at [36]: What is clear, in my opinion, is that the power in s.162 does encompass a power, if not an obligation, on the Attorney-General to be satisfied as to the appropriateness of the cancellation of a certificate requiring the continuing presence of someone in Australia, from the perspective of the particular investigation, et cetera, for which the certificate was actually granted in the past. Once that construction is taken then, I am not in the present case prepared to conclude that the present decision of the delegate was inevitable. I do not find it impossible to conceive of submissions being made by Mr Zhang to the Attorney-General which might have caused a different response to the minute which was before the delegate. 93 His Honour gave, as an example of the submissions which Mr Zhang might have put, the suggestion that Mr Zhang may have pointed to reasons why the prosecutor had wrongly assessed his benefit to a potential prosecution of the migration agent which had not yet been concluded (at [37]). 94 A further reason upon which the Federal Magistrate appears to have grounded his orders was that the statutory conditions for the exercise of the power of cancellation were not satisfied. His Honour observed at [28] that the identification of the Attorney as a repository of an extraordinary immigration power suggests that a substantial opinion is intended to be formed in a "real rather than mechanical process of decision-making". 95 His Honour continued by pointing to the context in which the exercise of the power to issue a certificate arises, namely the references in s 147(b) to statutes which bear upon Australia's national and international criminal enforcement measures. He said at [28]: It follows from these points, that the Act does not intend the Attorney-General to be bound to act as a mere rubber stamp to requests from agencies of the Commonwealth involved in criminal investigation, prosecution and punishment other than the Attorney-General.

PROCEDURAL FAIRNESS 96 In our view, it is plain from the language of Div 4 of Pt 2 of the Act, and from its subject matter, scope and content, that the rules of natural justice do not apply to the exercise of the power to cancel a criminal justice certificate under s 162(1) of the Act. 97 The entire focus and object of Div 4 is to facilitate the administration of criminal justice by securing the temporary presence in Australia of persons who would not otherwise be permitted to enter or remain in Australia. 98 As French J said in Goldie v Commonwealth of Australia [2002] FCA 261 at [36], the provisions of Div 4 which deal with the grant of a criminal justice certificate are enacted in the public interest in the administration of criminal justice. His Honour observed that they are: on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen. 99 It is also apparent from the observations of French J about the criminal justice stay visa process, that the rules of natural justice are excluded at every stage of the decision-making process under Div 4. His Honour said at [44]: It is immediately apparent from the arrangement of the sections of the Migration Act relating to criminal justice stay visas that they do not attract the procedural requirements relating to visas generally. In particular, there is no provision for a person to apply for the grant of such a visa. 100 Similarly, there is no provision for a person whose presence is required in Australia to apply for the grant of a criminal justice certificate. 101 The observations of French J in Goldie at [36] were followed by Gray J in Andreola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 345 at [23] and by Lindgren J in Lee v Minister for Immigration and Citizenship (2008) 171 FCR 38 at [15]. 102 Lindgren J also observed at [9] that the references to investigation, prosecution and punishment in the definition of the "administration of criminal justice" in s 142 make it clear that the relevant perspective is that of the administrators of the criminal justice system. 103 It follows from Lindgren J's remarks that the relevant perspective for the exercise of the power to issue or cancel a criminal justice certificate is that of the administrators of the system, not that of the person whose interests may in a broad sense be thought to be affected by the decision: see Lindgren J at [9] and [20]. 104 In our view, the observations of French J in Goldie and Lindgren J in Lee are plainly correct and we adopt them. In Lindgren J's words at [20], the perspective that permeates Div 4 is that of the administrators of the criminal justice system. 105 With respect to the remarks of Merkel J in Wasfi, we disagree with his Honour's conclusion that the rules of natural justice are not excluded by Div 4. The whole tenor of the Division is to repose the decision making process in the relevant decision maker in the interests of the administration of criminal justice. The person affected by the grant of a certificate or its cancellation has no personal interest in it and no right to be heard. 106 Even if, contrary to the views we have expressed, there is to be found an obligation of procedural fairness, it could have no content. The scheme laid down in Div 4 is inconsistent with any right, entitlement or interest of a person such as Mr Zhang to be involved in the consideration of the question of whether he could or should give evidence in the relevant proceeding. 107 It is true as was pointed out by counsel for Mr Zhang that those conducting criminal prosecutions have a heavy duty of disclosure, and a duty to call all available witnesses whose evidence is necessary to give a complete account of events on which the prosecution is based: see, eg Whitehorn v The Queen (1983) 152 CLR 657 at 674 per Dawson J. 108 But the duty of fairness in a criminal prosecution rests with the prosecutor. It would be contrary to the precepts of the administration of criminal justice to permit a potential witness a right to be heard on the question of whether he or she may assist. 109 The content of any obligation of procedural fairness would be reduced to "nothingness" to avoid frustrating the purpose for which the power was conferred: Kioa v West at 615 per Brennan J; see also Leghaei v Director-General of Security (2007) 97 ALD 516 at [45]. 110 The Federal Magistrate erred when he held that the delegate of the Attorney in the present case was bound to accord procedural fairness to Mr Zhang before cancelling the criminal justice stay certificate issued to him on 18 June 2004.

WAS THERE A BASIS FOR CANCELLATION? 111 At [31] of Zhang No 2, the Federal Magistrate held that the Attorney had the power to consider the investigation upon which the certificate had been granted, to obtain information about that investigation and to call for and require a satisfactory explanation as to the reasons why it would be appropriate to cancel the certificate. His Honour went on to hold that he did not need to address the second ground of invalidity in respect of the delegate's decision to cancel the relevant certificate because the denial of procedural fairness to Mr Zhang was a sufficient basis for the relief which he granted (at [41]). 112 The second ground of challenge was that the evidence before the delegate, in law, was not a sufficient foundation for the making of the decision to cancel the certificate, with the consequence that the cancellation decision was not authorised by the Act and thus wholly invalid. This ground was pursued on appeal by way of a Notice of Contention. 113 Senior Counsel for Mr Zhang submitted that, for a criminal justice stay certificate to issue in the first place, the Attorney-General must form each of the opinions referred to in s 147(b) and s 147(c), and then exercise his discretion to issue a certificate. Counsel then submitted that, whilst the language of s 162(1) does not mirror the language of s 147, it is necessary to give meaning to the words: the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given … 114 The proposition was that the words extracted at [113] above, in substance, picked up the same factors which were required to be considered by the Attorney under s 147 when deciding whether to issue a certificate. It was then submitted that, in the present case, in order to justify cancellation, more should have been said and proven than the very brief assertion made by the Department to the effect that Mr Zhang was no longer required. 115 There is an important difference between the language of s 147 and that which is used in s 162. The use of the word "considers" in each of sub-pars (b) and (c) of s 147 requires the Attorney to reach a level of satisfaction about the specified matters. These preconditions are framed by reference to the Attorney's state of mind. 116 The word "considers" does not appear in s 162(1). The language of the sub-section is directed to a fact - whether the person's presence is no longer required. If that fact is established, the Attorney is to cancel the certificate. No discretion is involved at that point. The language of the sub-section is not directed to the Attorney being satisfied of the correctness of the asserted fact. 117 It is true that the fact to which attention is to be given under s 162(1) includes the notion that the presence of the person is no longer required for the purposes for which the certificate was given. But, whilst those words are obviously included in order to direct attention to the purposes for which the certificate was issued in the first place, they do not impose upon the Attorney an obligation in every case to go behind every request for cancellation in order to verify the truth of the assertions made by the requesting authority. 118 It may be appropriate in some cases for the Attorney to make further enquiries and to seek additional information, but he will not be bound to do so in every case. Whether the necessary fact is established is a matter for the Attorney to determine. The means by which it is established may vary from case to case. 119 In the present case, one matter to be taken into account is the fact that the 2004 request for the certificate was itself cryptic and somewhat uninformative. If the Attorney was persuaded in 2004 to issue the certificate in respect of Mr Zhang upon the basis of scant material, why should he not also cancel the certificate on similarly brief material? In the end, if the requisite fact is established, the Attorney must act to cancel the certificate. 120 In the present case, the delegate of the Attorney accepted the truth of the assertion made by the officer of the Department that Mr Zhang was "now" no longer required to give evidence in the matter for which the criminal justice stay certificate had been issued. Although not stated in that communication, the fact was that, by mid-April 2008, the Director of Public Prosecutions had decided not to call Mr Zhang as a witness in any prosecution of his former migration agent. It was, therefore, the Director of Public Prosecutions, and not the Minister or an officer of the Department, who had made the decision that Mr Zhang was no longer required for the purposes for which the June 2004 criminal justice stay certificate had been issued. 121 It was open to the delegate to accept the truth of the assertion made by the officer of the Department in his email of 14 April 2008. It so happened that the assertion was, in fact, true. Therefore, the delegate acted upon the basis of the actual state of affairs at the time cancellation was effected. There was sufficient foundation for the cancellation decision. The point raised by the Notice of Contention fails.

DISCRETIONARY REFUSAL OF RELIEF 122 Given our decisions in respect of the first two issues, this point does not arise.

CONCLUSIONS 123 The Minister and the Attorney have succeeded in the appeal. They are entitled to their costs of the appeal and to their costs of the proceedings before the Federal Magistrate. We will make orders accordingly. I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Jacobson and Foster.

Counsel for the Appellants: Mr S. Lloyd SC with Ms A. Mitchelmore

Solicitor for the Appellants: Australian Government Solicitor

Counsel for the Respondent: Mr N. Williams SC with Mr N. Poynder

Solicitor for the Respondent: Legal Aid Commission of NSW

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (9)

Cited By (3)