Minister for Immigration & Multicultural & Indigenous Affairs v Wong

The relevant statutory background. 10 Section 501 of the Act relevantly provides as follows: "(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3). (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following; (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. (7) … (8) … (9) … (10) … (11) … (12) …" 11 Section 501C of the Act, which deals with revocation of a decision made, inter alia, under s 501(3) then provides, relevantly, as follows: "(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a)give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b)except in a case where the person is not entitled to make representations about revocation of the original decision … invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision… (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the person satisfies the Minister that the person passes the character test (as defined by section 501). (5) The power under subsection (4) may only be exercised by the Minister personally. (6) … (7) … (8) … (9) … (10) … (11) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7."

The decision appealed from. 12 Before the learned primary Judge it was submitted that the Court should not grant leave to administer interrogatories in the present case. It was said that interrogatories should not be granted because so to do constituted "fishing"; because the interrogatories went to the state of mind of the decision maker or because in the circumstances of this case to do so would be oppressive. The Minister did not submit that his Honour had no power to grant leave to administer interrogatories in a case such as the present. The submissions made went only to the question whether in this case an order giving leave to interrogate was appropriate. 13 His Honour expressed the view (it was a view also expressed by Tamberlin J in the proceedings to review the first decision) that there was not yet evidence that the Minister had pursued an extraneous purpose either in refusing to renew Mr Wong's visa or in refusing to revoke that refusal. 14 His Honour considered what the correct test was to determine whether interrogatories in a case such as the present should be administered. In so doing, his Honour referred to what was said by a full Court of this Court in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp (30 June 1997, unreported) where Beaumont, Burchett and Emmett JJ said: "Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery." 15 On the basis of that test, there being no suggestion that Mr Wong had commenced the present proceedings as an abuse of process, interrogatories presumably would be granted. 16 However, his Honour referred also to the test enunciated by Brennan J, with whom Bowen CJ agreed in WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, a decision dealing with discovery, namely that an order would be made where: "sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery"

17 His Honour then considered whether the present case met the test which Brennan J had enunciated in WA Pines, it being unnecessary in his Honour's view to decide between that test on the one hand and the test in Canwest on the other. His Honour said: "29. The documentary evidence establishes that, in making both his decisions, the Minister had before him information (apparently the same information both times) which the department thought was subject to s 503A of the Act. The evidence does not reveal the source of the information. However, having regard to the definition of 'gazetted agency', the source must have been a body, agency or organisation responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in Australia or elsewhere. As it is conceded there is no complaint about Mr Wong's conduct in Australia, it seems likely that the relevant agency was a foreign agency. It is not possible to identify the relevant foreign country, but it is common ground that Mr Wong lived only 'mainland' China and Hong Kong before coming to Australia. Although there is no fixed rule, the likelihood is that any removal of Mr Wong from Australia would be to China; perhaps to Hong Kong in particular. 30. The evidence does not indicate the nature of the conduct referred to in the s 503A information. As the Minister chose to rely on sub-para (ii) of s 501(6)(c) of the Act, rather than s 501(6)(a) or s 501(6)(c)(i), the information presumably did not refer to proven criminal conduct by Mr Wong. Yet the information must have suggested serious delinquency by Mr Wong; otherwise, it is conceivable that the Minister would have thought it proper to refuse the visa application 'in the national interest' and without according natural justice to Mr Wong under the procedure provided by s 501(1). 31. The available snippets of information, and this reasoning, provide some support for the theory that one or more Chinese, or Hong Kong, agencies provided to the Department information suggesting that Mr Wong may have been involved in conduct in their jurisdiction that is of interest to it, or them, in relation to law enforcement, criminal intelligence or investigation or security intelligence. If so, it would be rational to assume that this authority, or these authorities, would wish to interrogate him if he were returned to their jurisdiction; and this would be apparent to the Minister. It is another question whether making Mr Wong available for interrogation was a purpose of the Minister, as distinct from an understood consequence of any decision to refuse revocation. It may be difficult for Mr Wong to make out that element at trial. However, the present question is only whether there is a ground for suspicion. In the absence of evidence about the content of the s 503A information, and reasons for the Minister's decision, there is room, at least, for a suspicion about that matter." 18 His Honour accordingly granted leave to administer the interrogatories, but subject to some minor changes as to the form of interrogatories to be administered. As already noted the changes are indicated by underlining in the annexure.

The submissions of the Minister. 19 Before us the Minister conceded that counsel for the Minister had not sought to argue before his Honour that the Court had no power at all to give leave to an applicant to administer interrogatories in proceedings for judicial review. However, the Minister sought to reserve the right to argue, in the event that the present case went further, that there was no power. Counsel accepted that this Court and the High Court had either granted discovery or ordered interrogatories to be administered in such proceedings and that the Court would be unlikely to hold that power did not exist at all to administer interrogatories. 20 However, it was submitted for the Minister that even if the Court had power to administer interrogatories in cases involving judicial review it had no power to do so where the interrogatories went to the motive of the decision maker. 21 Alternatively it was submitted that the present case was not an appropriate case for the making of an order giving leave to administer interrogatories. Particularly, it was submitted that the learned primary Judge had erred in principle in granting leave to administer interrogatories, whether in accepting the test which his Honour had quoted from Canwest or in accepting the test which his Honour had cited from Brennan J in WA Pines and which his Honour had found to be satisfied in the present case. A submission, made before the learned primary Judge, that to order the answer of interrogatories would, in the circumstances of the present case, be oppressive, was not really pursued before us, and with respect, correctly.

The tests to determine whether leave to appeal should be granted. 22 There was common ground that the Court would not give leave to appeal an interlocutory judgment involving the exercise of discretion unless it could be shown that an important question of principle was involved: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. And an appeal against such a judgment would not be allowed unless it could be shown that the exercise of discretion had miscarried and that miscarriage had involved a question of principle: Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-7 per Gummow J and at 391-3 per French J. As the full Court in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp (supra) remarked, these cases reflect the principle that "'a tight reign' should be kept on interlocutory appeals of a procedural nature."

Interrogatories and judicial review. 23 It is now too late in the day to argue that discovery cannot be ordered in proceedings for judicial review. There are numerous cases in this Court in which discovery has been ordered or where the jurisdiction to so order has been accepted. In addition to Bannerman and Canwest to which the learned primary Judge referred mention may be made of Nestle Australia Limited v Commissioner of Taxation (1986) 10 FCR 78, TNT Australia Pty Limited v Fels (1992) ATPR 41-190 per Gummow J and Australian Securities Commisison v Somerville (1994) 51 FCR 38. Discovery was ordered in the United Kingdom in a matter involving administrative review in R v Secretary of State for the Home Department; Ex parte Herbage (No 2) [1987] QB 1077, although that case was decided after the replacement in 1977 of Order 53 rule 8 of the rules of the High Court with a rule designed to permit discovery and cross-examination on affidavits in administrative review. 24 The provisions of s 23 of the Federal Court of Australia Act 1976 (Cth) which confer power on the Court in relation to matters in which it has jurisdiction, to makes orders of such kind, including interlocutory orders as the Court thinks appropriate are expressed in the widest terms. There is no need for those provisions to be read down. The limitations on the proper exercise of the power so granted go only to the question of whether the proceedings are within jurisdiction and to the appropriateness of the order.

25 We see no need in the present case to determine whether the Court has power generally to order interrogatories to be answered in proceedings for judicial review. It is true that in the United Kingdom, interrogatories, like discovery, were not, prior to the procedural change in 1977, ordered in proceedings for judicial review. While, in more recent times this Court has only sparingly given leave to administer interrogatories, we see no reason why there should be a differentiation in Australia between the power to order discovery and the power to order that interrogatories be answered. We are prepared for the purposes of the present case to accept that there is jurisdiction to order interrogatories in an appropriate case. In so doing we note that the nature of judicial review will, necessarily, limit the cases in which it would be appropriate to order interrogatories to be answered. It may be noted that in Chan v Minister for Immigration and Ethnic Affairs (1983) 49 ALR 593 and in Herijanto v Refugee Review Tribunal (2000) 74 ALJR 698 Dawson and Gaudron JJ respectively assumed that power to administer interrogatories in judicial review proceedings existed in the High Court.

26 Nor do we see the need to consider in the present case, whether, as is submitted on behalf of the Minister, there is a principle of law that interrogatories not be administered on matters which go to the state of mind, or motive of the decision maker, cf Hennessy v The Broken Hill Proprietary Co Ltd (1926) 38 CLR 342. Generally the state of mind of the decision maker would be irrelevant in judicial review and thus it would not be appropriate that interrogatories be allowed. However in some cases, for example, where a question arises as to whether the decision maker acted in good faith so that the decision falls within the exception to the principle of construction enunciated by Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615, it may be that the state of mind of the decision maker has some relevance. In so saying we do not wish to be thought to have decided in the present case, whether the reference in that case to "bona fide attempt to exercise its power" is a reference to subjective matters.

27 The present case can be decided on a simpler ground.

28 Assuming that the Court has power to allow interrogatories to be administered to a decision maker unprotected by immunity (the questions which arise where it is sought to administer interrogatories to a statutory tribunal may be different) the question of principle to be decided here may be stated to be whether interrogatories may be administered in respect of an issue fundamental to and ultimately the basis on which judicial review is said to be based, where the matter to which the interrogatories goes is one that depends solely upon assertion and nothing else. 29 It will be recalled that Wilcox J took as the appropriate principle to apply in the present case either what was said in Canwest by the full Court of this Court or what was said by Brennan J in Bannerman. Notwithstanding the reference in his Honour's judgment to there being in the present case "available snippets of information" it seems clear that his Honour regarded the appropriate test to be either one of allegation or one of "suspicion". 30 It can be said, generally, that the test of Brennan J in Bannerman has usually been adopted as the appropriate test in determining whether discovery should be granted in matters of judicial review. However, it is necessary to set out the whole of what was said by Brennan J in the passage cited by his Honour. At 181-182 Brennan J said: "Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which par. 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim … but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by par. 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman: 'In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain.'" 31 Subject to matters to which we refer later it can be said that the present is clearly a case where there is not a "tittle" of evidence to suggest that the Minister made his decision for an ulterior purpose. The allegation of ulterior purpose to be found in ground (c) set out at [8] above is said by Mr Wong to justify the grant of leave to administer the interrogatories. There is no more than a bare assertion that there was any ulterior purpose. The present is not a case in which discovery is sought before action where, as Brennan J remarked, there may already be documentation available to an applicant. The present is merely a case where a "bare allegation" of a matter that is integral to the case for judicial review is made and no more. 32 It is clear from Bannerman that a mere allegation, in the absence of something more, would not suffice to require discovery and it may be said here interrogatories. In fact the case concerned both interrogatories and discovery and did not suggest any difference in principle between the two. What that something more is will depend on the particular circumstances of the case. In some cases (the present is not one) there may be evidence upon which it is open to conclude that the matter into which enquiry is sought may be made out so that discovery or interrogatories may be appropriate. In other cases it may be possible by reference to known facts to draw inferences which then found a suspicion. But mere suspicion not "grounded" on evidence or inference will not suffice. 33 It may be remarked here that cases which have concerned discovery in judicial review have, at least in part, been influenced to adopt a liberal view on discovery by the fact that the rules of the Court now permit discovery before action (cf Order 15A, rule 6). That rule requires, however, that the person seeking discovery before action show that there is reasonable cause to believe that the applicant has, or may have the right to obtain relief. That limitation reflects the policy that while discovery may be ordered even before proceedings have commenced the power to do so will only be enlivened where that is something upon which the Court can base its conclusion that the applicant may have a right to relief. It was for this reason that in Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported) at first instance, Hill J drew a distinction between the case where discovery was sought in an attempt to determine whether there was a case to be made out under some head of judicial review and the case where discovery is sought to show that the case which has by then been formulated can in fact be made out. The full Court refused leave to appeal. However, in the course of the reasons their Honours pointed out that the question whether interrogatories are appropriate will depend, as Brennan J had said in Bannerman, both upon the particular circumstances of the case and the stage at which discovery is sought. Their Honours said: "Where in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleading raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery. The need to establish a basis for the suspicion described by Brennan J in WA Pines will generally be confined to the kind of case to which he was adverting. In the normal case, the pleading will adequately ground the order." 34 However, their Honours noted that the pleadings in Canwest and other material before the Court provided grounds for an inference sufficient to satisfy the test stated by Brennan J in WA Pines. In other words, the case was not one where a mere allegation, without a "tittle of evidence", was all that could be relied upon. 35 In our opinion the present case is one where more than a mere allegation would be required before interrogatories of the kind here sought to be administered could properly be ordered. The additional matter may rest in evidence; it may rest in inferences that might be drawn from the evidence, or inferences that may be raised from other material, including matters that have been pleaded. But there will be a need here at least to ground an inference that an extraneous matter was taken into account and more significantly, that the Minister had an ulterior purpose, before it would be appropriate to order interrogatories to be administered. 36 His Honour appears to have been of the opinion that there was, at least something more than mere assertion in the present case. Unfortunately, and this is not a criticism of his Honour who was required to deliver judgment urgently having regard to the tight time frames applicable, his Honour did not indicate what the available "snippets of information" were that he relied upon. However, apart from one matter to which our attention was drawn, counsel for the applicant was unable to refer us to anything in the correspondence or otherwise (there were no pleadings in a traditional sense) to which he could point to supplement what, on any view, was a mere assertion. 37 The one matter to which we were referred was a paragraph 11 of a document prepared for the Minister by the Department and before the Minister at the time of the consideration of the first decision. That paragraph reads relevantly: "There is also a view that the 'national interest' may include Australia's 'reputation' and 'good name in the world'. It is certainly reasonable to conclude that Australia's international reputation and good standing would be damaged if it provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country and seek to evade that country's law enforcement action. Given Mr Wong's record in evading law enforcement activities, and that Australia's international reputation and good name is paramount, you may find that it is in the national interest that action be taken quickly to prevent him disappearing into the community before his case is dealt with. It is therefore, open for you to be satisfied, based on the protected information, that it is in the national interest to refuse Mr Wong's visa application under subsection 501(3)." 38 It is difficult to see how that provides any foundation at all for a suggestion that the Minister in making the second decision took into account any extraneous matter or exercised his discretion for an ulterior purpose, namely for the purpose of returning the Applicant to Hong Kong so as to permit foreign law enforcement authorities to pursue their enquiries. 39 As Mr Wong, by his legal representative, had made representations in accordance with the invitation given to him, the first issue relevant to the second decision was whether he had satisfied the Minister that he passed the character test. It is unnecessary on this appeal for a decision to be reached as to whether, assuming that the Minister was satisfied that Mr Wong passed the character test, the Minister nonetheless had a discretion not to revoke the original decision, cf Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106. The paragraph set out in [37] above has no relevance to Mr Wong's character. Mr Wong had claimed to have had no problem with the police while in Australia. That may be so, although it is not conclusive of the question of his character. The Department, in its advice to the Minister suggests that it was open to the Minister to revoke the first decision, that is to say, that it was open to the Minister to form the view Mr Wong was of good character. However, nothing in the representations made to the Minister or otherwise contained in the departmental advice provided to the Minister was compelling on the issue of Mr Wong's character. Nothing in the paragraph set out in [37] above suggests that the Minister exercised his power for an ulterior purpose as alleged. Nor for that matter is there any suggestion of any extraneous purpose to be found in the departmental advice. 40 Other matters to which counsel for Mr Wong referred were the fact that there was a delay of some 13 months from the date of the application to renew the student visa until the making of the first decision. That is completely neutral and says nothing either as to ulterior motive or extraneous reason. 41 Finally it is submitted that consideration should be given to a handwritten endorsement on inter-departmental communications as follows: "do we think it reasonable to harbour all alleged crim's so they don't get their day in court". There is a difficulty with this endorsement in that it is far from clear that it was before the Minister at the time he made the first decision. But even if it were, it bears not at all on either the question of extraneous matters or the question of ulterior purpose. 42 Ultimately counsel for Mr Wong was forced to concede that the application to administer interrogatories rested entirely upon the allegation of ulterior purpose which the applicant made and had, otherwise, no foundation. In these circumstances and given this concession, properly made, we are of the view that the case was not one where the primary Judge could properly exercise the discretionary power to order the administration of interrogatories. 43 In these circumstances we are of the view that leave to appeal should be granted and that the appeal should accordingly be allowed and that the orders made by the learned primary Judge should be set aside and in lieu thereof it be ordered that the application for leave to administer interrogatories be refused. Mr Wong should pay the costs of the appeal and the costs of the application before the primary Judge. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justices Hill, Moore and Branson.

Associate: Dated: 31 October 2002 Counsel for the Applicant: J Basten QC

Solicitor for the Applicant: Blake Dawson Waldron

ANNEXURE Interrogatories "1. When did the Respondent first receive the protected information contained in the documents C1-10 annexed to the Minute dated 22.01.02? 2. Who, or what entity, gave that protected information to the Respondent? 3. Was this protected information annexed to the Minute dated 09.05.02, being the Minute concerning the Respondent's decision pursuant to s.501C? 4. At the time of the Respondent's decision pursuant to s.501C, did the Respondent believe that the person or entity who supplied the protected information: (a) intended to take the Applicant into custody; and/or (b) intended to interrogate or otherwise question the Applicant should the Applicant come within that person's or that entity's territorial jurisdiction? 5. Was it a purpose of the Respondent's purpose in making his decision pursuant to s.501C to return that the Applicant would be returned to the abovementioned person's or entity's territorial jurisdiction? 6. If the answer to question 5 is yes, was this the Respondent's sole purpose? 7. If the answer to question 5 is no, what was the Respondent's purpose in making that decision? (a) what was the Respondent's purpose in making that decision; and (b) was the Respondent aware that the consequence of refusing to revoke the initial refusal to grant the Applicant's visa application, would be to return the Applicant to the abovementioned territorial jurisdiction?"