Vella v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT THE COURT 1 The issue that arises for determination in this matter is whether the decision by the Minister for Immigration and Border Protection (Minister) pursuant to s 501C of the Migration Act 1958 (Cth) (the Act) not to revoke his earlier decision to cancel, under s 501(3) of the Act, a permanent residency visa granted to Mr Alessio Vella, is vitiated by jurisdictional error. 2 Mr Vella, the applicant in these proceedings, contends that the Minister's decision not to revoke his cancellation decision is vitiated because prior to making the decision the Minister did not give him particulars of adverse information, personal to him, that the Minister relied on in making the decision. As a result, Mr Vella says that the Minister failed to afford him natural justice. 3 The Minister concedes that, in making the decision, he acted on adverse information that he did not divulge to Mr Vella. He says, however, that there was no denial of natural justice because the adverse information was information that, by reason of s 503A of the Act, he was not required to divulge to Mr Vella, despite what natural justice would otherwise require. In short, the Minister says that s 503A of the Act overrides any natural justice requirement to divulge the adverse information. 4 The resolution of this issue turns on the proper construction of ss 501C and 503A of the Act. 5 The Court's jurisdiction to determine this matter was directed, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), to be exercised by the Full Court. That was essentially because Mr Vella contends that the Court should depart from the finding, or at least the considered obiter dicta, in at least one earlier Full Court decision concerning the operation of s 503A of the Act.

Facts 6 The matter proceeded on the basis of agreed facts and a concession by the Minister. 7 Mr Vella was born in Malta on 5 June 1953. On 6 December 1967, Mr Vella migrated from Malta to Australia. He never became an Australian citizen. Mr Vella has a wife, two sons and two stepsons, nine grandchildren, nine siblings and an elderly mother, all of whom are Australian citizens. 8 Since 1973, Mr Vella has been the national president of the Rebels Motorcycle Club. 9 On 9 June 2014, Mr Vella departed Australia. At the time of his departure, Mr Vella held a Return (Residence) (Class BB) subclass 155 visa. 10 On 12 or 13 June 2014, the then Secretary of the Department of Immigration and Border Protection forwarded a submission to the Minister concerning the possible cancellation of Mr Vella's visa. The submission attached, amongst other things, an issues paper (Issues Paper) that addressed the issues for consideration by the Minister in relation to the possible cancellation of Mr Vella's visa. 11 A number of documents were also attached to the Issues Paper. One of the attachments is a document headed "Relevant (Disclosable) Information" (attachment F). It contains information concerning so-called outlaw motorcycle gangs, the Rebels Motorcycle Club and Mr Vella's presidency of that club. The Issues Paper notes that if the Minister decided to cancel Mr Vella's visa, Mr Vella would be provided with attachment F, along with the Minister's statement of reasons, to assist him in making representations regarding the grounds for the possible revocation of the cancellation decision. 12 The other five attachments to the Issues Paper (attachments A to E) are all letters that contain what is said to be "protected information" under s 503A of the Act, being information that was both relevant to the exercise of power under ss 501, 501A, 501B or 501C of the Act and was communicated to an "authorised migration officer" (as defined in s 503A(9) of the Act) by a "gazetted agency" (as defined in s 503A(9) of the Act) on condition that it be treated as confidential information. The submission notes that this "protected information" could be relied on by the Minister in his s 501(3) "consideration", but that if the Minister decided to cancel Mr Vella's visa, it would not be provided to Mr Vella. 13 On 13 June 2014, the Minister decided to cancel Mr Vella's visa pursuant to s 501(3) of the Act. He also signed a statement of reasons for making the cancellation decision (Reasons). 14 The Reasons record that the Minister reasonably suspected that Mr Vella did not pass the character test by virtue of s 501(6)(b) of the Act. Section 501(6)(b) provides that a person does not pass the character test if the person has an association with a group, organisation or person whom the Minister reasonably suspects has been or is involved in criminal conduct. The Reasons record that the Minister's "reasonable suspicion" in that regard was based on "information in respect of Mr Vella, provided by a gazetted agency … which is s 503A protected information." 15 The Reasons also record that the Minister was satisfied that it is in the national interest that Mr Vella's visa be cancelled under s 501(3)(b) of the Act. The information that the Minister considered in reaching this determination included "the information protected from disclosure under section 503A" and the information in attachment F. 16 Mr Vella was notified of the Minister's cancellation decision by letter which enclosed the Reasons and attachment F. The letter invited Mr Vella to make representations to the Minister about the possible revocation of his cancellation decision. 17 Mr Vella was not provided with any particulars of the so-called protected information, being the information in attachments A to E of the Issues Paper. 18 On 30 June 2014, Mr Vella's solicitors made representations to the Minister concerning the revocation of the cancellation decision under s 501C(4) of the Act. In the representations, Mr Vella's solicitors pointed out that Mr Vella had not been provided with the information referred to in the Reasons that was claimed to be protected information under s 503A of the Act. They said that it was not possible to respond in any meaningful way to the visa cancellation if, at the very least, the substance of that information was not provided. 19 On 18 July 2014, the Minister decided not to revoke the cancellation decision and advised Mr Vella accordingly. In making this decision, the Minister had before him and relied on the information that was before him when he made the original cancellation decision. That included the information in attachments A to E of the Issues Paper. That information was adverse and personal to Mr Vella. It was not provided to Mr Vella at any time prior to the time the Minister made the decision not to revoke the cancellation decision. 20 Mr Vella has still not obtained access to that information. After commencing these proceedings, Mr Vella was granted leave to issue a subpoena to the Minister requiring him to produce the material that was before him when he made the cancellation decision. The Minister objected to the production of attachments A to E of the Issues Paper on the basis that, by reason of s 503A(2)(c) of the Act, he could not be required to divulge or communicate the information in those documents to, inter alia, the Court. That objection was upheld: Vella v Minister for Immigration and Border Protection [2014] FCA 1177. 21 Importantly, the Minister has conceded that, were it not for s 503A of the Act, natural justice would have required the disclosure to Mr Vella of attachments A to E of the Issues Paper prior to the Minister deciding not to revoke the cancellation decision.

Relevant statutory provisions 22 Section 501 of the Act provides for the cancellation of visas on character grounds. Mr Vella's visa was cancelled under s 501(3) of the Act. To provide appropriate context, however, ss 501(1) to (5) should be set out in full: 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies (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. Note: Character test is defined by subsection (6). (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. Decision of Minister - natural justice does not apply (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. (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. (3B) Subsection (3A) does not limit subsections (2) and (3). (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) or (3A). 23 Subsection 501(6) sets out the circumstances in which a person does not pass the character test. As earlier indicated, s 501(6)(b) provides that a person does not pass the character test if: (b) the Minister reasonably suspects: (i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and (ii) that the group, organisation or person has been or is involved in criminal conduct; 24 Section 501C of the Act provides for the circumstances in which the Minister may revoke a cancellation decision made under ss 501(3) or 501A(3). Subsections 501C(1) to (5) provide as follows: 501C Refusal or cancellation of visa - revocation of decision under subsection 501(3) or 501A(3) (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 (see subsection (10)) - 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. 25 The reference to "non-disclosable information" in parentheses in s 501C(2) is not a reference to "protected information" under s 503A. "Non-disclosable information" is defined in section 5 of the Act in the following terms: non-disclosable information means information or matter: (a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would: (i) prejudice the security, defence or international relations of Australia; or (ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or (b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or (c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence; and includes any document containing, or any record of, such information or matter. 26 Subsection 501C(11) provides that a decision not to exercise the power conferred by s 501C(4) is not reviewable under Part 5 or Part 7 of the Act, which deal with reviews of decisions by the Migration Review Tribunal and reviews of protection visa decisions by the Refugee Review Tribunal. 27 Section 503A provides for the protection of information supplied by law enforcement agencies or intelligence agencies. Subsections 503A(1) to (3) provide as follows: 503A Protection of information supplied by law enforcement agencies or intelligence agencies (1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C: (a) the officer must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (iii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and (b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C. Note: Authorised migration officer and gazetted agency are defined by subsection (9). (2) If: (a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or (b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b); then (c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and (d) if the information was communicated to an authorised migration officer - the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person. (3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated. Note: Commonwealth officer is defined by subsection (9). 28 Importantly, s 503A(6) of the Act provides that: (6) This section has effect despite anything in: (a) any other provision of this Act (other than sections 503B and 503C); and (b) any law (whether written or unwritten) of a State or a Territory. 29 Subsection 503A(9) defines a number of expressions used in s 503A, including "gazetted agency". It is unnecessary to repeat the detail of this definition, other than to note that it includes an "Australian law enforcement or intelligence body" (which expression is also broadly defined in s 503A(9)) which is specified in a notice published by the Minister in the Gazette, and a "foreign law enforcement body" (which expression is again broadly defined) in a foreign country specified in a notice published by the Minister in the Gazette. 30 It should be noted that each of ss 501, 501C and 503A was inserted into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (the 1998 Act). Whilst there have been some amendments to the provisions since 1998, none of the amendments are material to the issue for determination in this matter.

Authorities 31 The operation of s 503A and its interaction with the principles of natural justice has been considered in a number of cases in the Court, albeit in somewhat different contexts. No question as to the constitutional validity of s 503A was canvassed in this Court. 32 In Evans v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 306 (Evans), the applicant commenced proceedings to restrain the Minister from cancelling his visa under s 501(2) of the Act without first disclosing to him the contents of a document that had been provided to the Minister by the Western Australian Police Service concerning the applicant's criminal record. The Minister contended that he could not be required to divulge the document by reason of s 503A of the Act. 33 The resolution of the proceedings in Evans turned to a large extent on the validity or effect of a Gazette notice specifying that the Western Australian Police Service was a "gazetted agency". Nevertheless, in the Full Court, Gray and Kenny JJ both made a number of observations concerning the evident purpose and operation of s 503A. Gray J said (at [13]-[15]): 13 The purpose of s 503A of the Migration Act is to remove what would otherwise be an entitlement to natural justice, or procedural fairness, for a person who is subject to the application of the character test in relation to an application for a visa or the consideration of the cancellation of an existing visa. There is little doubt that, on the application of the ordinary principles of natural justice, an applicant for a visa, or a person whose visa the Minister is considering cancelling, and whose character is in issue, would be entitled to adequate notice of, and an opportunity to respond to "adverse information that is credible, relevant and significant to the decision to be made" (per Brennan J in Kioa v West (1985) 159 CLR 550). The fact that the information was supplied by a body, agency or organisation responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence would tend to suggest that it fell into this category. Further, the effect of subss (6) and (8) of s 503A is to override specific statutory rights, under both federal and state legislation, which would otherwise entitle a person to receive information about himself or herself held by a government agency. 14 For the purposes of this proceeding, there is no argument as to the power of the Commonwealth Parliament to legislate to take away what would otherwise be rights of those kinds. The fact that such fundamental rights are being removed, however, is a solid reason for construing s 503A strictly. In particular, to the extent to which the legislature has delegated to the Minister power to implement its legislative intention, it is appropriate for the Court to look carefully to see that the Minister has carried out his function in accordance with the intention of Parliament. 15 There can be no quarrel with the policy on which s 503A is based. For good reasons, bodies, agencies or organisations of the kinds referred to in the definition of "gazetted agency" are reluctant to reveal information to someone in a position such as that of the Minister. There may be cases in which the identities of persons supplying information might be revealed and those persons might thereby be placed in danger, or become unwilling to supply further information. There might be cases in which investigations against other persons are compromised because it becomes known that they are being conducted. There might be cases in which disclosure is undesirable by reason of security considerations. Unless the Minister were able to assure such bodies, agencies or organisations that information divulged to him would be protected, it is unlikely that he would be able to obtain such information. It must also be recognised that there is a tendency for bureaucracies to wish to operate in secret without good cause. This is perhaps another reason why a strict construction should be adopted. 34 Kenny J said (at [47]-[50]): 47 Section 503A was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (the 1998 Amendment Act). The purpose of s 503A is, plainly enough, to enhance the ability of the Minister or an authorised migration officer to maintain the confidentiality of information supplied to the respondent's department by criminal investigation organisations in Australia or overseas for the purposes of decision-making under ss 501, 501A, 501B or 501C. In the Second Reading Speech on the Bill for the 1998 Amendment Act, the purpose of s 503A was explained in the following terms: Protection of criminal intelligence Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders. At present, it is difficult for the department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it. The bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia. This was highlighted in my most recent discussions with officials of international law enforcement agencies. (Australia House of Representatives, Debates (1998), p 1231; also Australia Senate, Debates (1998), p 60.) 48 In Wu v Minister for Immigration and Multicultural Affairs [2001] FCA 89 at [12], a Full Court (Lindgren, North and Mansfield JJ) observed that, prior to the introduction of s 503A into the Act, in resisting applications for the disclosure of confidential information contained in a document sought by an applicant in the Court upon subpoena, notice to produce, or discovery, the Minister was called upon to establish that the information was in fact confidential information, the disclosure of which should not be compelled. For example, in Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140, Lindgren J upheld the Minister's claim for public interest immunity in response to an application for the production for inspection of documents containing information that was taken into account in reaching conclusions relating to the character of the applicant. In this case, his Honour decided the matter "by weighing up the public interest in the open administration of justice on the one hand, and the public interest in the free flow of confidential information internationally in respect of the granting of entry visas and the keeping out of Australia of persons of bad character on the other hand": see Choi at 145. 49 Prior to the introduction of s 503A of the Act, it was a matter for the Court to decide, in the particular case, whether a claim by the Minister for public interest immunity should be upheld. It was incumbent on the Minister to satisfy the Court that the claim should be upheld. In a case to which s 503A applies, however, it is no longer open to the Court to weigh the competing public interests in the administration of justice and the free flow of confidential information, as Lindgren J did in Choi (see above). In such a case, an applicant in this Court would not obtain the information, the disclosure of which was forbidden by s 503A, by invoking the coercive processes of the Court. 50 The publication of a notice in conformity with para (b) of the definition of "gazetted agency" prevents a person whose interests are likely to be affected by an exercise of power under s 501, 501A, 501B or 501C of the Act from obtaining access to information relevant to the exercise of such power, if it is provided by a gazetted agency to the Minster or an authorised migration officer on condition that it be treated as confidential. Whilst the duty to accord procedural fairness (or natural justice) is not, for this reason alone, entirely excluded from the decision-making process in a case to which s 503A applies, the requirements of procedural fairness are diminished to the extent that they are inconsistent with the operation of s 503A. This is an expression of the general principle, stated by Guadron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 109, that: [W]here the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant statutory framework, this will vary according to the circumstances of the particular case. 35 In Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450, the respondent's visa was cancelled by the Minister under s 501(2) of the Act. A single judge of this Court set aside the decision for two reasons. The first reason concerned the Minister's determination that the respondent had a substantial criminal record. The second reason concerned a denial of natural justice. The Minister had not disclosed to the respondent information concerning her criminal record that had been obtained from the New Zealand Police. The Minister claimed that there was no denial of natural justice because, by reason of s 503A, he was not required to divulge the information to the respondent. 36 The judge at first instance held that the Minister should have taken steps to divulge the information to the applicant by either obtaining the consent of the New Zealand Police, or obtaining the information from another source, thus effectively sidestepping s 503A. This finding was effectively overturned on appeal, though the Minister's appeal ultimately failed because the Full Court upheld the primary judge's finding concerning the Minister's error in finding that the applicant had a substantial criminal record. 37 In relation to the natural justice point, Dowsett J considered that the issue turned on the relationship between s 503A and the "implied condition as to reasonable notice" that applied in respect of s 501(2) decisions given that the rules of natural justice applied to such a decision. His Honour found that s 503A effectively overrode the obligation to disclose information that natural justice imposed. His Honour said (at [30]): If the source of the obligation to disclose is the implied term in s 501(2) then, by virtue of s 503A(6), that obligation must, to the extent of any inconsistency, give way to the terms of s 503A(2)(c). If the proper construction of s 501(2) is that the Minister is required to disclose relevant information to which s 503A applies, then there is an inconsistency. I favour that view. Of course s 503A(3) permits the Minister to authorise disclosure in some circumstances. However that is entirely within his or her discretion. The Court should not try to avoid the clear intention of Parliament by imposing sanctions in connection with the exercise of that discretion. Similarly, in my respectful view, there is no warrant for requiring the Minister to seek alternative sources for obtaining information to which s 503A applies in order to enable disclosure to the visa-holder of such information, free of the constraints imposed by the section. 38 These observations were obiter because Dowsett J found that there was no substantial injustice to the respondent in any event for two reasons. First, the Minister's notice of intention to cancel the respondent's visa was not received by the respondent. It was, therefore, ultimately immaterial that the notice did not disclose the protected information. The Minister had no reasonable way of communicating with the respondent. Second, Dowsett J found that it was not necessary to provide such information to the respondent in any event because it can be inferred that a person is aware of his or her own criminal record. 39 Jacobson and Bennett JJ also considered that the question whether the respondent was denied procedural fairness turned on s 503A of the Act and whether the rules of procedural fairness are overridden by it. After discussing what was said about s 503A by Gray and Kenny JJ in Evans, their Honours addressed one aspect of s 503A that they thought showed "a tension between the strict wording of the section and the scheme it sets out" (at [82]). That aspect was that an authorised officer who received confidential information from a gazetted agency was prohibited from divulging or communicating the information, whereas there was no "express prohibition" on the Minister. It follows that the Minister cannot be required to disclose the information, but he can if he chooses to. 40 Jacobson and Bennett JJ then posed and answered two questions relating to the construction of s 503A (at [85]-[91]): 85 Two questions immediately arise. First, if the Minister cannot be required to divulge or communicate the information to any other person, does that extend to the requirement to accord procedural fairness? If it does not, such a failure to divulge or communicate the information vitiates the decision where made by the Minister but not a decision made by a delegate of the Minister where that delegate is an authorised migration officer. 86 Second, s 503A(6) provides that the section has effect despite any other provision of the Act and written or unwritten law of a State or a Territory. Does this affect the apparent scheme of the section, as described in Evans, to deny to the visa holder his or her rights to procedural fairness? No question arose in the appeal as to whether s 503A(6)(b) included the law (written or unwritten) of the Commonwealth or whether there was any relevant difference. We shall proceed on the basis that the common law of the States and Territories are, relevantly, the same as the law of the Commonwealth. 87 This line of argument seems not to have been put to Lindgren J in Wong and seems not have been a major issue in those proceedings. 88 It is not in dispute before us that, but for s 503A, the failure to provide particulars of the information, results in a denial of procedural fairness that vitiates the decision. Put another way, does the section impose a sanction upon the Minister's refusal to disclose the information by setting aside any decision that she made, in circumstances where that sanction would not operate if the Minister delegated the decision to an authorised migration officer? This would not necessarily assist a visa holder, who would still not be entitled to the information because by delegation of the decision to revoke a visa the confidentiality of the protected information would be maintained, as the delegate will be prohibited to disclose. This would, however, force or require the Minister to delegate the decision in those circumstances. 89 This clearly undermines the purpose of the whole section. 90 We accept that the section must be construed bearing in mind the fact that it purports to take away fundamental rights to procedural fairness. We also note that, by reason of s 501(5), the rules of natural justice are said not to apply to the decision of the Minister pursuant to s 501(3). 91 There is no limitation in s 503A(2)(c). If the Minister were required to choose between divulging the information and avoiding the decision, there would be a direct or indirect requirement to divulge or communicate the information in order to make the decision. That clearly was not the intention of the legislature in promulgating s 503A and the scheme there provided. Indeed, it is inconsistent with the operation of it. Regard may be had to the practical context in which the decision maker must consider whether to exercise the power (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [31] per Gleeson CJ and Hayne J). The scheme, as pointed out by Gray J in Evans (at [13]) was to remove the entitlement to natural justice or procedural fairness in respect of specific, defined information for a person who is subject to the application of the character test in relation to the consideration of the cancellation of an existing visa, or in relation to the application for a visa. The obligation to afford common law natural justice or procedural fairness is controlled by the statutory framework but exclusion must be made clear in direct terms Miah at [43] per Gleeson CJ and Hayne J; at [90] per Gaudron J; at [126]-[128] per McHugh J; at [181] per Kirby J; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [30] and [37] per Gleeson CJ). In respect of s 503A, in our opinion, that intention is clear. 41 Like Dowsett J, Jacobson and Bennett JJ said that there was no practical unfairness in any event because the Minister took reasonable steps to provide the notice of intention to cancel the visa but the respondent did not receive it. As the respondent did not receive the notice, she would not have received the protected information even if it had been included in the notice. 42 The reasoning in Ball concerning the interaction between s 503A and the obligation to disclose implied by natural justice was followed by Edmonds J in NBMW v Minister for Immigration and Border Protection (No 2) (2014) 222 FCR 376. Edmonds J accepted (at [43]) the Minister's submission that s 503A(2)(c) relieves the Minister of a requirement imposed under statute or common law, even if that requirement does not arise as a result of a coercive order of a court.

Grounds and submissions 43 The sole ground upon which the Minister's decision not to revoke Mr Vella's visa cancellation is challenged is that the Minister "failed to provide natural justice" to Mr Vella because he "failed to provide [Mr Vella] with information and documents in the possession of [the Minister] which were relevant to the decision to refuse to revoke the cancellation of [Mr Vella's] visa." The information not provided to Mr Vella was the information referred to in the Reasons as protected information under s 503A, being attachments A to E to the Issues Paper. It is common ground that the information in attachments A to E was relevant to the Minister's decision and was not provided to Mr Vella. 44 It is relevant to note that Mr Vella does not expressly attack the Minister's decision on the basis that the Minister failed to comply with s 501C(3) of the Act. Section 501C(3) would appear to be an express statutory requirement for the Minister to do what he would otherwise be required to do by the implication of the rules of natural justice in respect of decisions under s 501C. It is, however, at least implicit in Mr Vella's argument that he claims that the Minister also failed to comply with s 501C(3). Mr Vella's argument is to the effect that s 503A does not operate to absolve the Minister of the requirement to provide Mr Vella with adverse information relevant to the s 501C decision, whether that requirement arises by reason of s 501C(3), or by reason of the implication of the rules of natural justice in respect of s 501C decisions. 45 Mr Vella submits that the statutory scheme in relation to visa cancellations introduced by the 1998 Act is a clear and carefully structured scheme. Where natural justice is excluded, there is an express statutory statement that it is excluded: see s 501(5) and s 501A(4) of the Act. There is no express exclusion of natural justice in the case of decisions under s 501C. 46 Likewise, the statutory scheme clearly defines what information has to be provided, and what information is not required to be provided, in the context of certain decisions. In the case of s 501C decisions, Mr Vella points to s 501C(2) as clearly defining the relevant information that must be provided by the Minister under s 501C(3). The only "carve-out" from the relevant information is "non-disclosable" information, as defined in s 5 of the Act. There is no express carve-out in respect of s 503A protected information. 47 In relation to s 503A, Mr Vella submits that both the text of s 503A and the relevant context reveals that s 503A does not operate to prohibit or prevent the Minister from providing relevant information to a person whose visa has been cancelled under s 501(3) so as to enable the person to make representations to the Minister to revoke the decision under s 501C(4). Mr Vella points to the fact that s 503A(2)(c) provides only that the Minister must not be "required" to divulge information, whereas under s 503A(2)(d), migration officers "must not give the information in evidence". Mr Vella contends that whilst the Minister cannot be required to divulge s 503A protected information, nothing prevents him from deciding to provide it to a person in Mr Vella's position in the context of a s 501C decision. This construction of s 503A(2)(c) is, in Mr Vella's submission, consistent with the decision of Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 109 at [100] and with the construction of cognate secrecy provisions: see in particular Canadian Pacific Tobacco Company Limited v Stapleton (1952) 86 CLR 1 at 11. 48 Mr Vella also points to the fact that s 503A(2)(c) provides that the Minister must not be required to divulge information to "a court, a tribunal, a parliament or parliamentary committee or any other body or person." This, together with other contextual considerations, in Mr Vella's submission shows that s 503A(2)(c) is concerned with providing protection to the Minister in respect of compulsory process, such as subpoenas or notices to produce, issued by persons or bodies with coercive powers. It does not apply to decisions by the Minister, such as decisions under s 501C of the Act. For the same reasons, Mr Vella submits that s 503A(6) of the Act only operates to override laws requiring the production of documents or information to bodies with coercive powers pursuant to a compulsory process. It does not override other requirements or obligations which the Minister might have, including the requirement under ss 501C(3) and (4) to provide relevant information, or any requirement arising by reason of natural justice. 49 In relation to Ball, Mr Vella submits that the findings or statements in the judgments in Ball concerning s 503A are obiter and are, in any event, plainly wrong. He submits, in particular, that the judgments of Dowsett J and Jacobson and Bennett JJ show that their Honours failed to construe the statutory scheme as a whole; failed to have regard to a number of principles of construction, including that statutory purpose must be found in the text, that no legislation pursues its purpose at all costs, and that clear and unmistakeable language is necessary to exclude natural justice; and failed to have regard to authorities concerning cognate secrecy provisions. 50 The Minister's submissions may be shortly stated. The Minister submits that the text of s 503A(2)(c) reveals that the intention of s 503A is to allow the Minister to rely upon information provided by gazetted agencies in making decisions, including decisions under s 501C, without such reliance giving rise to a requirement that the information be disclosed. That intention would be defeated if the narrow construction of s 503A urged by Mr Vella is accepted. That is because the Minister would be effectively required to divulge such information to the person whose visa had been cancelled. If he did not divulge the information, his decision under s 501C would be invalid. Such an outcome would, in the Minister's submission, be absurd. 51 The Minister submits that neither the text nor context of s 501C and 503A supports Mr Vella's submission that the protection provided to the Minister by s 503A is limited to protection from compulsory process issued by courts, tribunals or like bodies. The ordinary meaning of the words "required to" in s 503A(2)(c) are comfortably capable of including a statutory requirement to do something under the Act, whether that requirement is express or implied. Accordingly, a requirement of natural justice is a requirement for the purposes of s 503A(2)(c). Section 503A(6) provides that s 503A has effect despite such a requirement. 52 The Minister also submits that Ball was not wrongly decided. He emphasises that because Ball concerned the proper interpretation of a statute, the Court should follow it unless satisfied not only that it is plainly wrong, but also that the "error in construction is patent, or has produced unintended and perhaps irrational consequences": Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at [27]-[28]; Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170 at [30] and [81].

The construction of sECTION 503A of the Act 53 The preferable course is to address the question of the proper construction of s 503A afresh, without reference to previous authority. It will only be necessary to address Mr Vella's submissions concerning Ball if the construction arrived at is contrary to Ball. 54 The question of construction raised by this matter is relatively confined. The question is not whether the rules of natural justice apply to decisions under s 501C. The text and context of s 501C plainly reveals that natural justice does apply to s 501C decisions. Both the Minister and Mr Vella accept that the requirements of natural justice are implied in relation to decisions by the Minister under s 501C. 55 The requirements of natural justice include, relevantly in the case of s 501C, the requirement to give the person whose visa has been cancelled notice of, and the opportunity to make representations about, "adverse information that is credible, relevant and significant to the decision to be made" (Kioa v West (1985) 159 CLR 550 at 629) by the Minister concerning whether the cancellation decision should be revoked. This notice requirement is reflected in ss 501C(2) and (3) of the Act. Having regard to the way this matter was argued, it is unnecessary to decide whether the natural justice notice requirement coincides with, or is more extensive than, the requirement in ss 501C(2) and (3). 56 The question of construction that needs to be answered in this matter is whether, before making a s 501C(4) decision, the Minister is required by natural justice to disclose relevant adverse information to a person in Mr Vella's position in circumstances where s 503A(2)(c) applies: that is, where the information satisfies the conditions or criteria in s 503A(2)(b) of the Act. Put another way, where the Minister has information to which s 503A(2)(c) applies, do ss 503A(2)(c) and 503A(6) operate to override the natural justice notice requirement that would otherwise require the Minister to divulge that information to a person whose visa has been cancelled and who may wish to make representations in relation to the revocation of the cancellation decision under s 501C(4) of the Act? 57 Consideration of this question both begins and ends with the statutory text, though the statutory text must be considered in its context, including legislative history and extrinsic material: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Thiess v Collector of Customs (2014) 250 CLR 664 at [22]. Given that this question involves whether a requirement of natural justice is excluded or overridden, regard should also be had to the principle that "plain words of necessary intendment" are required to exclude natural justice (Annetts v McCann (1990) 170 CLR 596 at 598) and that an intention to exclude is unlikely to be assumed from "indirect references, uncertain inferences or equivocal considerations" (The Commissioner of Police v Tanos (1958) 98 CLR 383 at 396): Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [14]. 58 Starting with the text of the relevant provisions, two relevant questions arise. The first concerns the text of s 503A(2)(c) and the second concerns the text of s 503A(6) of the Act. 59 In relation to s 503A(2)(c), the question is whether the words "must not be required to divulge or communicate the information to … any other … person" can apply to a requirement to disclose information that arises, in the context of s 501C, from the implication of the rules of natural justice? Are the words "required to" in s 503A(2)(c) capable of including a requirement implied by the principles of natural justice? Or as Mr Vella submits, are those words confined to situations or circumstances where the Minister would otherwise be required to divulge information by reason of a compulsory process issued by a body or person with coercive powers? 60 The second question, which relates to the text of s 503A(6), is whether the words "despite anything in … any other provision of this Act" in s 503A(6) can encompass a requirement in s 501C of the Act which arises from the implication of the principles of procedural fairness or natural justice? Is such a requirement overridden by the terms of s 503A(6)? Or, as Mr Vella submits, are these words confined or limited in scope to overriding compulsory process issued by bodies or persons with coercive powers? 61 The answer to both questions is that the text in both ss 503A(2)(c) and 503A(6) is not to be read down or confined as Mr Vella contends. A requirement implied in the Act by the principles of natural justice is capable of being excluded or overridden by operation of ss 503A(2)(c) and 503A(6) of the Act. Specifically, ss 503A(2)(c) and 503A(6) of the Act can operate to override the natural justice requirement to provide information to a person whose visa has been cancelled where that information is credible, relevant and significant to the Minister's decision whether to revoke the cancellation decision under s 501C(4). 62 There is nothing in the text of s 503A(2)(c) to suggest that the words "required to" cannot extend to an implied statutory obligation, such as a requirement to afford natural justice or procedural fairness. There is no reason to read those words as being confined to compulsory process, such as subpoenas, notices to produce and summonses. It is by no means an unnatural or strained use of the word "required" to say that the Minister is "required" to divulge information by the natural justice notice rule. The ordinary meaning of the word "required" is not altered by the fact that the list of persons or bodies to whom the Minister must not be required to divulge information includes courts and tribunals. 63 Likewise, there is nothing in the text of s 503A(2)(c) to suggest that the words "or any other body or person" are confined to bodies or persons who have coercive powers. To the extent that Mr Vella submits that these words should be read ejusdem generis with the words "court" and "tribunal", "parliament" and "parliamentary committee", that submission is rejected. The reading down of general words by application of the ejusdem generis rule is rarely justified and depends on the entire statutory context. In Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113, Spigelman CJ (with whom Handley and Hodgson JJA relevantly agreed) said, of the ejusdem generis rule (at [127]): The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young (1999) 46 NSWLR 681 at 689 [23]-[29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought [to] be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute. (Emphasis added) 64 Contextual considerations relevant to the construction of s 503A are addressed later in these reasons. Suffice it to say at this stage that, considered in context, the reference to specific bodies ("a court, a tribunal, a parliament or parliamentary committee") in s 503A(2)(c) and elsewhere in s 503A does not mean that the general words "or other body or person" should be read down as meaning a body or person with coercive powers like those specific bodies. 65 It may be correct, as submitted by Mr Vella, that s 503A(2)(c) is expressed in the passive voice. The language used, however, is in terms of a requirement to divulge information "to" a body or person, not on a requirement imposed "by" such a body or person. The grammatical focus or emphasis is on the requirement ("to divulge"), as opposed to the source of the requirement or the nature of the body or person making a requirement. 66 The text of s 503A(6) also does not support the narrow construction advanced by Mr Vella. There is no indication in the text that s 503A(6) is confined to overriding laws that empower bodies or persons to compel the Minister, by compulsory process, to divulge information. No doubt such laws would be covered by s 503A(6). There is, however, no reason why the reach of the subsection should be limited to such laws. The language used in s 503A(6) is broad. Section 503A has effect despite "anything" in "any other provision" of the Act. The use, in particular, of the word "anything" suggests that the subsection is intended to apply to any requirement imposed by any provision in the Act, even if that requirement is not express, but rather arises by implication. 67 The contextual considerations relied on by Mr Vella do not suggest, let alone compel, answers that are different to those revealed by the text of the relevant provisions. 68 There is no question that the language used in s 503A(2)(c) and s 503A(6) must be read together with the other parts of s 503A. There is also no question that s 503A must be read in the context of the statutory scheme concerning visa refusals and cancellations introduced by the 1998 Act. That is because, amongst other things, s 503A can only be engaged in respect of information "relevant to" the exercise of powers relating to decisions concerning the refusal or cancellation of visas on character grounds: see relevantly the chapeau in s 503A(1). Section 503A(2)(c) is also only engaged if the information is communicated to the Minister for the purpose of the Minister making a decision (under either s 501, 501A, 501B or 501C) relating to visa refusals or cancellations on character grounds. 69 When read in the context of the statutory scheme, it is readily apparent that s 503A is intended to permit information provided by certain law enforcement agencies (gazetted agencies) that is relevant to decisions concerning visa cancellations on character grounds (the exercise of power under ss 501, 501A, 501B or 501C) to be communicated to the Minister or authorised migration officers for the purpose of the making of such decisions without the risk of the Minister (or authorised migration officers) being required to divulge that information to any other person or body. That protection is afforded whatever subjective views the Minister (or authorised migration officer) may have concerning the confidentiality or other qualities of the information. It is necessary only that the information has certain objective qualities: that it was communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; that it is relevant to the exercise of power under ss 501, 501A, 501B or 501C; and, in the case of the Minister, that it has been communicated for the purpose of the Minister exercising one of those powers. 70 It is evident that the purpose of the protection is to ensure that the confidence with which such information was conveyed to the Minister by a gazetted agency can be respected and upheld. Whilst the Minister may permit disclosure by making a declaration under s 503A(3), he may only do so after consulting the gazetted agency. 71 The evident protective purpose and intended operation of s 503A is confirmed by what was said by the Assistant Treasurer on the second reading of the Bill that became the 1998 Act: Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders. At present, it is difficult for the Department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it. This bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia. This was highlighted in the Minister's recent discussions with officials of international law enforcement agencies. 72 The protection afforded by s 503A, and the evident statutory purpose, would be defeated if s 503A had the limited operation contended by Mr Vella. In the case of a decision under s 501C, on Mr Vella's construction the Minister would, in effectively every case, be required by the implied statutory obligation to afford natural justice to divulge the otherwise protected information to the person whose visa had been refused or cancelled. That is because, by definition, the protected information must be "relevant to the Minister's exercise of power" under s 501C and must have been communicated to the Minister for the purpose of the exercise of that power. If the information does not possess those objective qualities, it does not fall within s 503A. It is difficult to imagine any circumstance in which the natural justice notice rule would not require the Minister to disclose such information to the person whose visa has been refused or cancelled. 73 It is no answer to say that the statutory scheme and purpose is not defeated by Mr Vella's construction because the Minister can always, despite the requirements of natural justice, maintain the confidence with which the information was communicated by refusing to divulge the information to the visa holder. Such a refusal would almost certainly amount to a denial of natural justice and result in an invalid decision. It is unreasonable, if not impossible, to infer that the legislature intended that the Minister would or might deny a person natural justice in this circumstance, or that the Minister would be placed in a position whereby he (or she) had to choose between breaching the confidence of a gazetted agency and denying a person natural justice and, as a result, making an invalid decision. 74 It is, equally, no answer to say that the Minister can always choose to divulge the information despite the terms of s 503A(2)(c) of the Act. Unlike an authorised migration officer, the Minister is not prohibited by s 503A(2)(c) from giving the information in evidence. He is only protected from being required to divulge it. He may, in Mr Vella's submission, eschew that protection and disclose the information anyway. In the present context, the distinction between protection from being required to divulge the information, on the one hand, and prohibition against the divulging of the information, on the other, is a distraction. Plainly the statutory scheme envisages disclosure only in the tightly defined circumstances provided in s 503A(3). Disclosure in accordance with a s 503A(3) declaration requires, amongst other things, consultation with the gazetted agency and gives rise to further defined protections and prohibitions: see in particular ss 503A(4), (4A), (5) and (5A). It is impossible to infer that, in putting into place the detailed and structured scheme, the legislature intended or envisaged that the Minister could or would simply ignore the protection afforded to him, other than pursuant to s 503A(3). 75 If anything, the distinction between protection and prohibition relied on by Mr Vella reveals at least one anomalous implication for his construction of s 503A, though not in relation to decisions under s 501C, which may only be made by the Minister personally. On Mr Vella's construction, a delegate of the Minister could validly cancel a person's visa on character grounds under s 501(2) without disclosing to that person information covered by s 503A. That is because the delegate is prohibited by s 503A from divulging the information. The Minister, on the other hand, could not validly cancel the person's visa exercising exactly the same power without divulging the information. That is because, on Mr Vella's argument, the Minister is only protected from disclosing the information, not precluded from so doing. It cannot be inferred that Parliament intended such an anomalous operation of s 503A in these circumstances. 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. 82 The second important textual or contextual consideration is that s 503A says nothing in express terms about excluding or overriding natural justice. Nor is there any express statement in s 501C that any of the rules of natural justice that would otherwise apply, by implication, to s 501C decisions are excluded by s 503A. This is in contrast to the express exclusion in ss 501(5) and 501A(4). This again might point to an intention that s 503A is not intended to operate to override any of the rules of natural justice. 83 The answer to that suggestion is again that, in the context of the statutory scheme, s 503A is not intended to entirely exclude natural justice. It only operates to exclude one aspect of natural justice (the notice rule) and only in particular circumstances (where the information which would otherwise need to be disclosed falls within s 503A). Section 503A is also intended to operate, where applicable, across the entire statutory scheme. That is apparent from the breadth of the language in s 503A(6). In these circumstances, the absence of any express statement concerning the exclusion of natural justice is explicable. Whilst it may have been preferable for there to be an express reference in s 503A to the fact that the section, where applicable, may operate to exclude natural justice, nonetheless there are in s 503A "plain words of necessary intendment". The text is sufficiently clear to found a conclusion that the section can operate to exclude requirements to disclose which would otherwise be implied by the requirements of natural justice.

conclusion - was Mr vella denied natural justice? 84 It follows that the question of construction posed earlier in these reasons is resolved against Mr Vella. Where the Minister has information which satisfies the criteria in s 503A(2)(b), ss 503A(2)(c) and 503A(6) operate to exclude the requirement that would otherwise exist, as a consequence of the implication of the principles of natural justice, that the Minister disclose that information before making a s 501C(4) decision. In Mr Vella's case, therefore, the Minister was not required to disclose to Mr Vella the information in attachments A to E of the Issues Paper, it having already been held that the information in those documents is protected information for the purposes of s 503A of the Act. 85 Having resolved the question of construction in these terms, it is readily apparent that Mr Vella's contention that Ball was wrongly decided must be rejected. It is in these circumstances unnecessary to address Mr Vella's specific criticisms of the reasoning in Ball. Suffice it to say that, for the most part, the criticisms are unwarranted if not misconceived. Much of what has been said in these reasons concerning the construction of s 503A is consistent with, and supported by, the reasoning in Ball. It is also supported by the reasoning in Evans. To the extent that there are any differences, they are able to be explained by the different factual and legal contexts in those cases. In particular, Ball was not concerned with s 501C and some of the reasoning in that case may be explained by the fact that the Full Court was addressing specific findings that had been made by the first instance judge.

Disposition 86 Mr Vella's application is dismissed with costs. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Buchanan, Flick and Wigney.