Ground 3
39 At the heart of the challenge in Ground 3 is the submission that the applicant was given no information by the Minister which would enable him to exercise in any effective way the ability to make representations to the Minister that he should revoke his original decision. When he advised the applicant of his original decision, the Minister disclosed to the applicant his reasons and the Issues Paper with attachments other than Attachment X which is the protected information. The Minister's decision that he had a reasonable suspicion of the matters in s 501(6)(b) was based on the protected information and that information was not disclosed in the reasons or Issues Paper. There was no disclosure of the group or organisation of which the Minister reasonably suspected the applicant to have been or to be a member. The applicant submitted that in those circumstances the opportunity to make representations that the original decision be revoked was entirely illusory.
40 The applicant submitted that, having regard to those matters, one of two alternative conclusions - each involving a jurisdictional error - followed. First, if that was the correct construction of the Act and, in particular ss 501, 501C and 503A, then the Minister proceeded on an incorrect basis involving jurisdictional error. The applicant submitted that the Minister proceeded on the basis in making his original decision that the applicant would be given an effective opportunity to make representations that the original decision should be revoked when that was not the case. The applicant referred to the passage in the Minister's Statement of Reasons set out above (at [18]). Secondly, and in the alternative, the applicant submitted that this is not the correct construction of the Act and the Minister did not comply with the obligation in s 501C(3). The Minister was required by that subsection to give the applicant sufficient information to enable him to exercise effectively his right to make representations in support of the revocation of the original decision. In argument, the applicant submitted that he was entitled to be told of the group or organisation of which he was said to be (or to have been) a member. When asked what the Minister should have done in the circumstances, the applicant's counsel submitted that he should have refrained from making a decision under s 501 of the Act or, in the alternative, he could have approached the gazetted agency and sought a relaxation of the condition of confidentiality.
41 The effect of the first argument was that the original decision was affected by a jurisdictional error and the circumstances for a consideration of the revocation of the decision had not arisen. The effect of the second argument is that s 501C(3) had not been complied with and the power to revoke the original decision had not been engaged.
42 The first argument is that the Minister's original decision is affected by jurisdictional error where it is made on the basis that a person will be given an opportunity to persuade the Minister that the original decision ought to be revoked because the person passes the character test and yet the circumstances are such that, in fact, there is no prospect that the person will be able to do that. The applicant relies on the decision of the High Court in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 ("Re Patterson; Ex parte Taylor"). In that case, the Parliamentary Secretary to the Minister proceeded on the basis that the person whose visa was to be cancelled would be given the opportunity of proving to the Minister's satisfaction that he passed the character test when, in fact, because of the respect in which he failed the character test the opportunity was meaningless. In that case, the applicant failed the character test in a way that could not be contested because he had a substantial criminal record within s 501(6)(a) and s 501(7)(c) in that he had been sentenced to a term of imprisonment of 12 months or more. The High Court held that in proceeding on the assumption the decision-maker did, she committed a jurisdictional error. Gummow and Hayne JJ (with whom Gleeson CJ agreed), held that there was jurisdictional error. Their Honours said (at 455 [194] and [196]):
194. What was not explained to Senator Patterson was that, in the circumstances of the present case, her power to revoke the decision would only arise if the prosecutor could satisfy her that he passed the character test, which, given his criminal record, he could not do.
…
196. In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor's transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, "an opportunity to make representations seeking revocation of [that] decision". The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.
Their Honours contrasted the criteria in s 501(6)(a) and s 501(7)(c) with that in s 501(6)(b). They said (at 447 [168] and 453-454 [190]):
168. The expression "does not pass the character test" is given content by sub-ss (6) and (7) of s 501. A person does not pass the character test if that person has a "substantial criminal record" (s 501(6)(a)). That criterion is satisfied if, among other matters listed in s 501(7), the person has been sentenced to a term of imprisonment of 12 months or more (par (c) of s 501(7)). The criteria in the other paragraphs in s 501(6) contain evaluative rather than purely objective elements. An example is par (b), association with a person, group or organisation "whom the Minister reasonably suspects has been or is involved in criminal conduct". However, given par (c), it plainly was open to the respondent reasonably to suspect that the prosecutor did not pass the character test. It was a question whether the respondent was reasonably satisfied that the cancellation of the prosecutor's transitional (permanent) visa was "in the national interest". On 30 June 2000, the respondent declared she was so satisfied and decided that his transitional (permanent) visa should be cancelled.
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190. … Accordingly, the power of revocation under s 501C(4) could never be enlivened in his case. Different circumstances might have arisen if, for example, the ground relied upon had been the prosecutor's association with a person or group or organisation whom the Minister reasonably suspected of involvement in criminal conduct (par (b) of s 501(6)).
43 I think that this case is to be distinguished from Re Patterson; Ex parte Taylor. In this case, the Minister knew that the protected information formed the basis of his decision that he reasonably suspected that the applicant did not pass the character test and he knew that the protected information was not to be disclosed to the applicant. The first matter may be inferred from his reasons, and as to the second matter, the Minister said in his reasons:
6. I had regard to the material supplied to me that is protected information under section 503A. This information cannot be disclosed to Mr MRISHAJ for comment. This information is relevant in considering the character test and the national interest in relation to Mr MRISHAJ and I have taken it into account in making my decision.
44 Furthermore, although the applicant's chances of persuading the Minister that the original decision should be revoked because he could be satisfied the applicant passed the character test were limited, they were not non-existent in the sense they were in Re Patterson; Ex parte Taylor.
45 I reject the first argument put forward by the applicant with respect to Ground 3.
46 As to the second argument, the argument seemed to be that in one form or another the Act must be interpreted so that the information given to the applicant under s 501C(3) must be such that the applicant has a meaningful opportunity to make representations to the Minister that his original decision ought to be revoked. It is important to note that the applicant did not seek the protected information or seek to challenge the conclusion that the information was protected information within s 503A. Nor did he seek to argue as Mr Vella did in Vella v Minister for Immigration and Border Protection [2015] FCAFC 53; (2014) 230 FCR 61 ("Vella") that he was entitled to the protected information because there was a common law obligation to provide procedural fairness in addition to the obligation in s 501C(3). His argument was that s 501C(3) must have some content and if in a case such as the present the Minister could not start the process under s 501 or had to approach the gazetted agency seeking a relaxation of the obligation of confidentiality, then that is what he is required to do.
47 There is force in the applicant's submission that an applicant who is not told of the group or organisation he or she is said to be (or to have been) a member of may be at a severe disadvantage in addressing in a meaningful way a case that he or she is not a member of the group or organisation or that the group or organisation is not involved in criminal conduct or both. It would seem that all the person could do in those circumstances is address all of his or her activities and thereby attempt to negate the basis of the original decision.
48 The difficulty for the applicant is the language and structure of the Act and the decision in Vella. Section 503A protects information communicated to an authorised migration officer by a gazetted agency on condition that it is to be treated as confidential information, being information relevant to the exercise of a power under ss 501, 501A, 501B and 501C. That is the case here. Section 503A(6)(a) provides that the section has effect despite anything in "any other provision of this Act".
49 The argument in Vella was that the common law rules of natural justice mean that the protected information should have been disclosed to Mr Vella. That argument was rejected. In the course of their reasons, the Court addressed the interrelationship between s 501C(3) and s 503A in a way which suggests that the applicant's argument should be rejected. The Court said (at 80 [76]-[81]):
76. There are two other important textual and contextual considerations in relation to the statutory scheme that need to be addressed. On first blush, these considerations might be thought to support Mr Vella's construction. On close analysis, they do not.
77. The first concerns the wording of the express requirement imposed on the Minister to disclose documents relevant to the cancellation decision. As already indicated, s 501C(2) and (3) contain an express disclosure requirement along the lines of what would in any event be required by the principles of natural justice. The point is that there is an express exclusion or carve-out from the definition of relevant information in s 501C(2). That carve-out extends only to "non-disclosable information". It does not extend to information that is protected from disclosure by s 503A. This might be seen to be an indication that the legislature did not intend that s 503A would operate to override any disclosure requirement in the context of a s 501C decision. Only non-disclosable information was intended to be protected.
78. When closely analysed, however, that inference cannot be drawn. That is because the wording of s 503A makes it plain that it was intended to operate across the entire statutory scheme. In particular, it was intended to operate in respect of the exercise of powers under ss 501, 501A, 501B and 501C. Whilst s 501C does not specifically refer to s 503A, nor do ss 501, 501A and 501B. Given the broad wording and evident intended operation of s 503A, it was unnecessary to specifically advert to it in any of these sections, including s 501C.
79. It is difficult to see how it could be argued that s 503A cannot operate to absolve the Minister of the obligation to disclose information under s 501C(3) in circumstances where the information satisfies the criteria for protected information in s 503A. Plainly enough s 501C(3) requires the Minister to divulge information. Section 503A(6) provides that s 503A operates despite "anything" in any other provision in the Act. That must include s 501C(3). Accordingly, s 503A(2)(c) operates so that the Minister is not required to divulge, under s 501C(3), information which satisfies the objective criteria in s 503A.
80 It is perhaps for this reason that Mr Vella, at least in his written submissions, appeared to disavow reliance on s 501C(3) on the basis that it does not apply to the power in issue in his case. It perhaps also explains why Mr Vella couched his case in terms of a denial of natural justice, rather than a failure to comply with s 501C(3).
81 It would be curious if s 503A operated to override a requirement to disclose imposed by s 501C(3), but did not operate to override the cognate implied requirement to disclose imposed by the requirements of natural justice.
50 The issue which arises in this case was directly addressed by Edmonds J in NBMW v Minister for Immigration and Border Protection (No 2) (2014) 222 FCR 376 ("NBMW") who held that by reason of the terms of s 503A and, in particular, subsections (2)(c), (6) and (8) the obligation not to divulge or communicate overrode the obligation to give notice to a person who has been refused a visa or had their visa revoked in s 501C(3). The Full Court in Vella referred to the decision in NBMW without indicating approval or disapproval of the decision.
51 Ground 3 is rejected.