Wu v Minister for Immigration and Multicultural Affairs

Decision of the primary Judge 7 Before the primary Judge, as before us, Mr Wu relied upon the proposition that where a statute requires that there be "reasonable grounds" for a state of mind, including "suspicion", it requires the existence of facts sufficient to induce that state of mind in a reasonable person: see the dissenting speech of Lord Atkin in Liversidge v Anderson [1942] AC 206 and George v Rockett (1990) 170 CLR 104 at 112. The learned primary Judge observed that the difficulty confronting Mr Wu was that the material on which the Minister had based his decision was, by the operation of s 503A, unavailable to Mr Wu, and "at least prima facie, unavailable to the Court". His Honour said the fact remained that Mr Wu had not discharged the burden of making good the grounds on which he relied to attack the Minister's refusal. Accordingly, his Honour dismissed Mr Wu's application.

Grounds of appeal 8 Mr Wu relies on the following grounds of appeal: "1. His Honour erred in allowing into evidence the affidavit of Nelly Siegmund sworn 21st November 2000 in its entirety over objection or those portions which were allowed over objection. 2. On the evidence available, His Honour erred in finding 'The evidence in these proceedings indicates the Minister formed the reasonable suspicion by reference to information that was protected information by operation of s 503A of the Act'. 3. His Honour erred in his interpretation of the relationship between section 476(1)(g) and section 503A of the Migration Act 1958 as amended.

4. His Honour erred in the principles of administrative law to be applied as reflected in the observations of the High Court in George v Rockett (1990) 170 CLR 104.

5. His Honour erred in failing to find that the Minister's finding that the Appellant did not pass the character test amounted to an error of law within the meaning of section 476(1)(e)." We will address the first and second grounds of appeal together and the third, fourth and fifth grounds together.

The first and second grounds of appeal 9 Before his Honour, counsel for the Minister read an affidavit of Ms Siegmund sworn 21 November 2000 to which were attached what purported to be copies of the Decision Record and a notice under s 503A of the Act published in the Commonwealth of Australia Gazette No GN23 on 9 June 1999. The notice purported to be made by the Minister acting under subs 503A(9) of the Act. By the operative provision of the notice, the Minister did: "SPECIFY each body, agency or organisation that is responsible, in a Country or Territory listed in Schedule 1 of this Instrument, for law enforcement, criminal intelligence, criminal investigation or security intelligence in that Country or Territory listed in Schedule 1." The Schedule contained a list of countries including the People's Republic of China. 10 Before his Honour, Ms Siegmund's affidavit, referred to in the first ground of appeal, was objected to in its entirety, and particular objections were taken to various parts of it. His Honour disallowed the objection to the whole and many of the particular objections. The purpose of the affidavit was to establish that the information contained in Attachments 1-9 was "protected" under s 503A of the Act. In order to do so, the affidavit would have had to prove by testimony in admissible form: · that the information in Attachments 1-9 had been communicated by a gazetted agency; · that it had been communicated by that agency to a person who was an authorised migration officer; · that the information was so communicated on condition that it be treated as confidential; · that the information was relevant to the exercise of the Minister's power under, relevantly, s 501. 11 We do not find it necessary to determine the first and second grounds of appeal. If it be assumed that the content of Ms Siegmund's affidavit and its annexures were wrongly admitted into evidence, the result would have been no different because the Decision Record was otherwise in evidence before his Honour. The references in the Decision Record to Attachments 1-9 make it clear that the information on which the Minister was invited to rely for the purpose of forming a reasonable suspicion that Mr Wu did not pass the character test, and being satisfied that a refusal of the visa was in the national interest, was contained in those Attachments. We infer that Attachments 1-9 were in fact attached to the Decision Record and that the Minister relied on whatever information was contained in them in forming a suspicion that Mr Wu did not pass the character test and in satisfying himself that a refusal of the visa was in the national interest. 12 The Minister was not called upon to establish that the information was protected information: Mr Wu had not resorted to such coercive measures as the issue of a subpoena, the giving of a notice to produce or the process of discovery, which the Minister would have borne the onus of resisting. The Minister was called upon to respond to such a measure in Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1995) 39 ALD 328 and Choi v Minister for Immigration and Multicultural Affairs (unreported, 25 August 1998, Lindgren J), which illustrate the position which existed before the present régime, including s 503A, was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998. In those cases, the Minister was required to establish (and did successfully establish) claims of public interest immunity in response to motions to compel him to produce documents for inspection. Section 503A was introduced to strengthen the Minister's ability to keep information confidential. In the Parliamentary Debates on the Bill for the amending Act just mentioned, the following passage appeared in the second reading speech in the Senate and the House of Representatives (Parl Debs, Senate, 11 November 1998 at 60; HR, 2 December 1998 at 1231): "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. 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 my most recent discussions with officials of international law enforcement agencies." 13 Absent Ms Siegmund's affidavit, it may be, as the second ground of appeal asserts, that his Honour's description of the information in Attachments 1-9 as information that was protected by the operation of s 503A of the Act could not have been sustained. But this description of the information was not essential to his Honour's reasoning.

The third, fourth and fifth grounds of appeal 14 We turn now to the third, fourth and fifth grounds of appeal. Having regard to the fact that Attachments 1-9 were before the Minister, Mr Wu did not, and could not, establish that the Minister erred in law or that there was no evidence or other material to justify the making of the decision to refuse to grant the visa. 15 Ms Winfield of counsel, who said all that could be said to support the grounds of appeal in the difficult situation in which her client is placed, submitted that the Minister cannot have a reasonable suspicion that a person does not pass the character test unless the Minister makes the grounds of his suspicion available to be tested. We do not agree. The Minister has or does not have reasonable grounds for his suspicion as a matter of objective fact at the time when the Minister decides to refuse to grant the visa, and any question of scrutiny and proof of those grounds is a distinct question which arises later. 16 In the course of the hearing, in response to a question raised by a member of the Court, there was some debate about the effect of the existence of the Minister's power under subs 503A(3) (set out earlier). It would have been possible for the Minister, after consulting with the gazetted agency from which the information originated, to declare that subss (1) and (2) of s 503A did not prevent the disclosure of the information contained in Attachments 1-9 to the Court, or to both the Court and Mr Wu's legal representatives, subject to protective conditions. The question raised was whether, since Mr Wu had placed before the Minister evidence of his good character and the power given by subs 503A(3) would have allowed the Minister to ensure that the Court had before it the information in Attachments 1-9, an evidentiary burden passed to the Minister to overcome the effect of Mr Wu's evidence of good character, so that in the absence of either the information or any explanation as to why the Minister had not followed the course described, it would be open to the Court to conclude that the "no evidence" ground provided by subs 476(1)(g) of the Act was made out. Counsel for the Minister referred to difficulties with this course of reasoning, and since it did not form part of Mr Wu's submissions, we refrain from expressing any view in relation to it.

Conclusion 17 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren, North, Mansfield.

Counsel for the Respondent: Messrs N J Williams and J H Momsen

Solicitor for the Respondent: The Australian Government Solicitor