Wong v Minister for Immigration & Multicultural & Indigenous Affairs

relevant legislation 9 Section 501 of the Act is relevantly as follows: "501 Refusal or cancellation of visa on character grounds … (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 or delegate - natural justice applies … 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. (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). Character test (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; … Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution." (Emphasis added) 10 The next relevant provision is s 501C, which essentially is 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 … (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) …" (Emphasis added) 11 Certain information included with the Decision Record provided to the applicant was protected information within s 503A, which provides: "503AProtection of information supplied by law enforcement agencies or intelligence agencies … (2) If: (a) … (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 a 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 body or person. …" (Emphasis added)

submissions for the applicant 12 The first submission made on behalf of the applicant is that the decision-maker was in error in finding that the applicant did not pass the character test on the basis that he had a record of evading law enforcement activities. It is said that that such conduct alone could not, as a matter of law, make available a finding that the applicant was not of good character, especially where there was no particular evidence that any such evasive conduct was intentional or unlawful. It is said that there is no finding that the applicant had been convicted of any crimes, or that there were allegations that he committed any criminal offences. It is also submitted that the Minister erred in acting on a false assertion that the Department had no evidence of recent good conduct when this was in fact incorrect because the applicant's compliance with Australian migration laws since his arrival in Australia was evidence of recent good conduct. 13 It is also said that the determination of the Minister that the refusal of the applicant's visa is in the "national interest" was in error because an incorrect test was applied. The relevant test is specified in s 501(3)(d) which in terms requires a determination that the refusal of the visa application is in the national interest. It is submitted that this cannot be satisfied by a determination to the effect that it is in the national interest that action be taken quickly to prevent a person from disappearing into the community before the case is dealt with because this approach involves asking a wrong question, namely, whether a consequence of refusing the visa, that is the need to act quickly, is in the national interest and this is said to be a jurisdictional error of law. 14 It is also said that the exercise of the Minister's residual discretion under s 501(3) of the Act against the applicant was on the wrong understanding that if the visa was refused on character grounds, the applicant would have the opportunity under s 501C of the Act to establish that he could pass the character test, whereas in fact, by reason of the statutory prohibition upon disclosure of all relevant materials contained in s 503A of the Act, the ability of the applicant to make proper representations pursuant to s 501C was illusory. 15 Alternatively, it is said that the ability of the applicant to make representations was so constricted by s 503A that any representations made would essentially be inadequate and this was not brought to the Minister's attention when the decision to refuse was made. 16 The applicant submits that in relation to the period under consideration by the decision-maker, the Decision Record did not properly state or advert in explicit terms to the fact that there was no suggestion in the evidence that the applicant had committed any serious crimes or other acts that necessitated detaining him to protect the Australian public. Nor was there anything in the applicant's conduct whilst in Australia that suggested in any way that he would be likely to abscond if the visa was refused. It is said that he was only in Australia on a temporary visa and had not sought permanent residence and even if he did not wish to return to Hong Kong he could have travelled elsewhere. Accordingly, because the Minister acted on erroneous assertions, which went to statutory preconditions or to jurisdiction, the decision was invalid.

Respondent's submissions 17 The Minister contests each of these grounds and further relies on the provisions of s 474 of the Act, which provide that decisions under the Act are final in the circumstances therein set out.

ulterior purpose 18 It is submitted that the Minister had acted for an ulterior or non bona fide purpose in making the decision to refuse the visa. This submission relies in part on the basis that the Minister could have used other powers to deport the applicant in this case but elected not do so. Moreover, it is said that the Minister's Second Reading speech (Australian House of Representatives, Parliamentary Debates, (Hansard), 2 December 1998, at 1230) pertaining to the enactment of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), which introduced the relevant provisions, refers to the exercise of the powers in an emergency situation or where there are exceptional circumstances and the present case cannot be so characterised. Therefore, it is said that the power is being used for an ulterior purpose. 19 In order to establish such a conclusion the evidence needs to be substantial and there is no such evidence in the present case. The fact that the Second Reading speech refers to an emergency situation or exceptional circumstances does not mean that the Act must be construed by reference to such an implied constraint which is not reflected in the language used. Moreover, the fact that there may be alternative ways of removing a non-citizen from Australia, each with its own particular limitations and constraints, does not mean that the Minister is not entitled to exercise the power under s 501 in the present case to refuse the grant of the visa. Accordingly, there is no substance in the suggestion that the Minister's act can be characterised as being made in bad faith or for an ulterior purpose.

good character 20 The second submission concerned the question of "good character". This expression is to be understood as a reference to the enduring moral qualities of a person: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187. 21 The finding by the Minister was that, having regard to his past and present general conduct, he "reasonably suspected" that the applicant did not pass the character test: see s 501(6)(c) of the Act. The matter is considered in detail in the Decision Record. In my view, no error has been demonstrated in relation to the Minister's consideration of the applicant's character. 22 The reasoning in relation to character in the Decision Record presented to the Minister for consideration proceeds along these lines. In par 5 the provisions of s 501(6) are described. Paragraph 7 states the conclusion that there was a reasonable suspicion, based on the attached "protected information", that Mr Wong did not satisfy the character test because of his past and present general conduct. In par 20 reference is made to Direction 21 - Visa Refusal and Cancellation under section 501 ("Direction 21"). This refers to examples of the type of offences considered by the Government to be "very serious" and it is stated that, taking these into account, the protected information attached may lead the Minister to conclude that the nature of the applicant's conduct in this case was "very serious". Direction 21 was made under s 499 of the Act which provides that the Minister may give directions to a person or body about the performance of functions under the Act or as to the exercise of powers under the Act, but such a direction must not be inconsistent with the Act or the Migration Regulations 1994 (Cth). A person or body receiving the direction must comply with the direction. The Minister is obliged to cause a copy of any such a direction to be laid before the Houses of Parliament within fifteen sitting days after the direction is given. 23 The relevant paragraphs in Direction 21 refer to the nature, severity and frequency of any offences, the period which has elapsed since they were committed, and an applicant's record since any offences were committed, including any evidence of recidivism or continuing association or a pattern of continued or blatant disregard or contempt for law. Any mitigating circumstances can be taken into account, for example, originating from Judges' comments, parole reports and similar documents. Direction 21 takes into account the Government's view that certain matters are examples of offences considered to be "very serious" and it points out that considerations of repetition, recidivism and general deterrence are also factors to take into account, together with the expectations of the Australian community. 24 In this case the decision is directed to a consideration of the applicant's past and present general conduct and this does not require any conviction for a criminal offence. The legislative context set out above, however, indicates that the general conduct must be of a serious and substantial nature in order to warrant refusal of the visa application. 25 Section 501(6)(c) provides that a person does not pass the character test, if having regard to the person's past and present general conduct, the person is not of good character. Section 501(2)(a) provides that the Minister may cancel an applicant's visa if the Minister reasonably suspects that the person does not pass the character test. The Decision Record points out to the Minister that the reasonable suspicion test is met if the evidence available to him arouses suspicions which must be both honestly held and be reasonable in the circumstances. 26 Although so far as the non-protected information is concerned there is no mention of any criminal offence or conviction in Australia, it does not follow that the Minister could not properly form the view that the applicant was not of good character by reason of general conduct. The Minister had access to the protected information and the guidance of the Decision Record which includes a detailed analysis of the law. This material sets out the proper approach to be taken when evaluating the evidence. It is apparent that the person who prepared the Decision Record relied mainly on the protected information. 27 On a fair reading of the Decision Record, it is not suggested that, taken on its own, "a record of evading law enforcement activities" is sufficient to give rise to disqualifying conduct. Read as a whole, the indications from the material in the Decision Record are that there was considerably more than a finding as to possible evasion which led to reasonable suspicion on the part of the Minister. While it is true that there were no determinations that the applicant had been convicted of any criminal offence, this is not a pre-requisite to the finding made by the Minister.

failure to take account of present good conduct 28 The statement to the Minister in the Decision Record that the Department had no evidence of rehabilitation or present good conduct is said to have been erroneous because the applicant had complied with Australian migration laws since entry into this country. It is submitted that there was no evidence of non-compliance and this amounted to good conduct so that the Minister had been misled when considering the recent general conduct of the applicant. 29 From the Decision Record it can be seen that there is no reference to any record of any conviction or allegation of criminal conduct by the applicant whilst in Australia. The absence of any such conduct must have been appreciated by the Minister. Compliance with the law, however, does not necessarily compel a conclusion that the person's general conduct has been "good", such that it must outweigh any past conduct. The question is essentially a balancing one and the relative weight to be given to the consideration of compliance with the law is entrusted to the Minister. There is no definition as to what is meant by "present conduct" from a temporal viewpoint, nor is there any time limitation on the expression "past conduct". It cannot be simply said on the basis of the statement made to the Minister in the Decision Record, that there was no evidence of rehabilitation or recent good conduct, that the Minister's decision must have proceeded on an erroneous assumption. It did not need to be pointed out to him that the applicant had complied with the obligations under Australian migration laws as a separate factor because there was no suggestion to the contrary in the material. 30 I am not persuaded that the Minister could reasonably be said to have proceeded on an erroneous basis in relation to present conduct. It is significant, in my view, that an application for revocation of the refusal to grant a visa was made under s 501C of the Act, as envisaged in the Decision Record, and before a decision was made on that revocation, the solicitor for the applicant, in his letter of 13 February 2002, made a detailed submission pointing to the lawful conduct of the applicant while in Australia and asserting that there was no truth in any allegation that he had any record in evading law enforcement activities. In other words the basis for the claim of present good conduct was before the Minister on the revocation application, which, according to the applicant's Counsel, was subsequently refused. Any possible misunderstanding which may have arisen from the statement (and in my view there was none), as to the absence of any rehabilitation or good conduct was made known to the Minister at that stage. 31 In relation to the alternative argument as to the restricted ability to make further representations under s 501C, the applicant relies largely on the decision in Re Patterson; Ex parte Taylor (2001) 182 ALR 657. This case is analysed in detail in the Decision Record, particularly in relation to the question of national interest grounds and the difficulties arising from s 503A if a revocation application were made. It is important to bear in mind in the present case that the Minister had the benefit of a "comprehensive" discussion of the relevant judgments in that case in the Decision Record. It is to be inferred from this detailed discussion that the Minister was apprised of the differences between Patterson's case and the present case and the proper way in which to approach the question of "national interest". 32 Patterson is distinguishable because the Decision Record placed before the Minister in that case was considered by the High Court to have been misleading in relation to the existence of a right of review under s 501C. That is not so in the present case. There can be no suggestion of the Minister being misled in this case by the Decision Record as it is expressly pointed out in par 17 that there would be limitations, arising from the nature of the protected information, in the applicant making representations in support of revocation.

national interest 33 The expression "national interest" is a broad one and a determination of what is comprised in the national interest must be approached with this in mind. The fact that the making of a determination as to what is in the national interest is conferred on the Minister reinforces this approach. The primary determination of what is in the national interest is for the Minister and not for the Court. The expression national is often used in contrast to expressions such as local, municipal, state-wide, or international as a reference to the interests of the country as a whole. The reference to "national interest" can include a consideration of Australia's position as a nation in relation to other nations. This is also reflected in the nature of the constitutional power which is being exercised, namely the "immigration" power. Immigration is an area which necessarily involves the relationship of Australia when dealing with nationals or persons from other countries and their admission into the Australian community. This relationship can involve the perceptions by other nations of Australia as a member of the international community and such perceptions can be of great significance to Australia. 34 The expression "national" also directs attention to the interests of Australia as a whole as distinct from local or regional interests within Australia. It is also to be differentiated from the notion of "public interest" which can embrace, among other matters, local, regional and municipal concerns. The range of considerations which can be taken into account when applying such a broad concept is wide and the Court must not substitute its views for those of the Minister where on the face of the decision the power has been exercised in a proper manner and it appears that the Minister has acted within the limits of making a decision which appears to have been reasonably open. There is nothing to indicate that on the available information he was not entitled to reach a decision to refuse the application. 35 Moreover, there is no legal basis which requires that the application of the power be limited to circumstances where there are exceptional or emergency considerations such that the Minister must act decisively to refuse or cancel a visa or remove a non-citizen: see Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89]; Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426 at [19]-[20]; cf Patterson at [331]-[333], per Kirby J. 36 In the present case the evidence does not support a conclusion that the Minister has acted outside the parameters of what could reasonably be considered the making of an available decision. 37 The statements of the Minister in the Second Reading speech relating to emergencies and exceptional circumstances cannot impliedly limit the language used in the section. 38 Another matter raised by the applicant in relation to the expression "national interest" was that a consideration that the applicant might disappear into the community could not be taken into account because that was a "consequence" of the Minister's decision and therefore could not be a reason for the decision. I do not accept this submission because it seems to me that a basic element in administrative decision-making must involve a consideration of what consequences may flow if a particular choice is or is not made. Therefore, it cannot be said that there must be an error because the possibility of disappearance into the community and evasion of the possible enforcement of laws of another nation, was taken into account.

the effect of s 503A 39 In par 17 the Decision Record points out to the Minister the problems which may arise as a result of s 503A in relation to "protected information" on an application to revoke under s 501C. It is there said: "17. The information used in connection with the exercise of the subsection 501(3) power in Mr Wong's case, is section 503A protected information which cannot be provided to Mr Wong or his agents and legal representatives for their comment. You should be advised that this might limit Mr Wong's ability to obtain revocation under subsection 501C. However, should you decide to refuse Mr Wong's visa application, he will be given a copy of the Decision Record. The decision record identifies subsection 501(6)(ii) as the grounds under which you may reasonably suspect Mr Wong fails the character test and paragraph 11 of the Decision Record outlines the case for considering that refusal of his visa is in the 'national interest'. He will also be provided with a copy of your Direction 21 made under section 499 of the Migration Act 1958. In other words, Mr Wong may be able to convince you to exercise your powers of revocation under subsection 501C." (Emphasis added) 40 This serves to inform the Minister of the difficulties raised by s 503A so far as the presentation of Mr Wong's application for revocation is concerned but points out that despite those difficulties Mr Wong can still address the matters referred to on a generalised basis. 41 The tenor of par 17 is to the effect that Mr Wong may be able to discern the type of case which is being made against him although he will not have access to the specific information which he would normally be entitled to in the absence of s 503A. His entitlement to such information and specific allegations might otherwise result from the implication into the Act of the principles of natural justice. However, there is an express prohibition in s 503A which shows a clear intent to limit disclosure of information which can be provided to an applicant. Such a clear expression is effective to preclude the operation of the audi alteram partem rule in the fullest sense: see Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 at 109-110. Section 501(5) in terms provides that natural justice is not to apply to a decision made under s 501(3). 42 As Counsel for the Minister points out, the Decision Record, read with Direction 21, indicates the broad basis on which the Minister has acted. It appears from the submission made by the solicitor for Mr Wong on 13 February 2002, relating to the revocation application under s 501C, that there was some understanding, albeit to a limited extent because of the operation of s 503A, of the type of allegation that might be raised in the protected information. The solicitor for the applicant in pars 5 and 6 of the letter of 13 February, states: "… The only thing that can be gleaned from the decision record is that the protected information alleges that the Applicant has committed serious crimes in another country and that he has acted so as to evade law enforcement activities. At this general level the only response he can give is to deny both allegations. Our point here is that if you assumed he would be able to adequately address specific allegations in representations that he may subsequently make, the decision record has led you into error. In our respectful submission the decision record ought to have advised you that the restrictions imposed by the non-disclosure upon the Applicant's ability to respond were in truth very significant and that it was appropriate for you to give a high degree of weight to this circumstance when exercising your general discretion under s 501(3) itself." 43 The letter attempts to address the reasoning and inferences made which could possibly relate to the decision. It is evident that the writer was under a considerable forensic disadvantage in attempting to address the Decision Record when important parts of that Record could not b`e disclosed by the Minister. Nevertheless, the presumed allegations are addressed in a general way by the solicitor. In later paragraphs, referring to the general history and conduct of the applicant, for example, the solicitor submitted to the Minister that: "14. The Applicant has instructed us that whilst working for the Customs Service he did not engage in any corrupt activities. Just as his father was an honest customs officer so was he. He did not take any bribes from anyone and he did not commit any criminal offences. It was common knowledge that the Customs Service in the Port had problems with corruption and bribery but the Applicant did not engage in any such activities. The Applicant though does agree that it was common business practice for importers to make gifts of alcohol and cigarettes to officers and that from time to time he did receive gifts of this nature. However, this was accepted by all as being the way that business was done in the port and that no one treated such acts as being unlawful or wrongful in any way. … 17. The Applicant believes that the only possibility is that the protected information contains allegations that refer to his association with a person by the name of Lai Sing Chung. The Applicant has known Lai since about 1990 and worked for him around 1994 and 1995. The Applicant believes that Lai is presently in Canada seeking asylum as a refugee. It is well known that Chinese authorities have made public allegations that Lai was involved in corrupt activities in the port of Xiaman. The Applicant suspects that the protected information most likely asserts that Chinese officials are seeking his assistance in determining whether Lai was or was not involved in corrupt activities. This may be so, however, the Applicant instructs us that he has never been approached by any person in authority requesting him to provide information in relation to Lai. He has never been summonsed to present himself to any official in order to provide any such information nor he has been summoned to appear before any court or authority to defend himself against any criminal charges. Therefore, he denies any allegations in the protected information that he has 'any record in evading law enforcement activities'." 44 The operation of s 503A in this case means that an applicant is not entitled to the benefit of the audi alteram partem rule in the sense of having the protected information made available. 45 I am not persuaded that there has been any error or, more specifically any jurisdictional error in relation to the consideration of the application by the Minister nor in the analysis set out in the Decision Record as to general conduct or the national interest. My conclusion is that the applicant has not made out a case in relation to any of the matters which have been raised, and accordingly, it is not necessary for me to consider the operation of s 474 of the Act. I therefore dismiss the application. The appropriate order as to costs is that the applicant pay the costs of the respondent of this application. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Counsel for the Applicant: J McCarthy QC R Wilson

Counsel for the Respondent: J Basten QC M Allars

Solicitor for the Respondent: Blake Dawson Waldron