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Cases

MIGRATION – proceedings relating to decisions of Minister for Immigration and Multicultural and Indigenous Affairs refusing grant of student visa and refusing revocation of refusal to grant visa – where Minister contended certain information protected under s 503A of Migration Act 1958 ("the Act")

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 (31 August 2004)
Last Updated: 1 September 2004

FEDERAL COURT OF AUSTRALIA


Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242




MIGRATION – proceedings relating to decisions of Minister for Immigration and Multicultural and Indigenous Affairs refusing grant of student visa and refusing revocation of refusal to grant visa – where Minister contended certain information protected under s 503A of Migration Act 1958 ("the Act")

PRACTICE AND PROCEDURE – estoppel - whether Anshun estoppel should apply to judicial review of administrative action – issue estoppel – res judicata – questions concerning the construction of s 503A of the Act unreasonably not raised in previous proceedings - whether special circumstances exist that permit raising questions in these proceedings that should reasonably have been raised in previous proceedings – no special circumstances found
Migration Act 1958 (Cth), s 503A
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 approved
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 cited
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 approved
BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 approved
Port of Melbourne Authority v Anshun (No 2) [1981] VR 81 cited
Bryant v Commonwealth Bank (1995) 57 FCR 287 cited
Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581 cited
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 referred to

Stuart v Sanderson (2000) 100 FCR 150 referred to

TAI SHING WONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1246 OF 2002
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v TAI SHING WONG
N 237 OF 2004
TAI SHING WONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 242 OF 2004
TAI SHING WONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 760 of 2004


EMMETT, CONTI & SELWAY JJ
31 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1246 OF 2002


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: TAI SHING WONG
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: EMMETT, CONTI & SELWAY JJ
DATE OF ORDER: 31 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal from the orders of Wilcox J of 6 November 2002 in matter number N654 of 2002 be dismissed.
2. The appellant pay the respondent’s costs of the appeal.












Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 237 OF 2004


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: TAI SHING WONG
RESPONDENT


JUDGES: EMMETT, CONTI & SELWAY JJ
DATE OF ORDER: 31 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal be allowed.
2. The orders made by Lindgren J on 6 February 2004 in matter number N 298 of 2003 be set aside.
3. Proceeding number N 298 of 2003 be dismissed.
4. The respondent pay the appellant’s costs of the appeal.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 242 OF 2004


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: TAI SHING WONG
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: EMMETT, CONTI & SELWAY JJ
DATE OF ORDER: 31 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal from the orders of Lindgren J of 6 February 2004 in matter number N 297 of 2003 be dismissed.
2. The appellant pay the respondent’s costs of the appeal.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 760 OF 2004


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: TAI SHING WONG
APPLICANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT



JUDGES: EMMETT, CONTI & SELWAY JJ
DATE OF ORDER: 31 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The application for leave to appeal from the orders of Lindgren J of 8 April 2004 in matter number N298 of 2003 be dismissed.
2. The applicant pay the respondent’s costs of the application.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


N1246 OF 2002

BETWEEN: TAI SHING WONG
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

N237 of 2004

BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: TAI SHING WONG
RESPONDENT

N242 OF 2004

BETWEEN: TAI SHING WONG
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

N 760 OF 2004

BETWEEN: TAI SHING WONG
APPLICANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT



JUDGES: EMMETT, CONTI & SELWAY JJ
DATE: 31 AUGUST 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

THE COURT:

1 The Court has before it three appeals and one application for extension of time within which to file an application for leave to appeal and for leave to appeal. Each proceeding arises out of, or is connected with, a decision of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) to refuse to grant a student visa under the Migration Act 1958 (Cth) (‘the Act’) to Wong Tai Shing (‘Mr Wong’). Mr Wong, who is a national of the Peoples Republic of China (‘China’), is the appellant in two of the proceedings and the applicant for an extension of time and leave in another. The Minister is the appellant in the fourth proceeding. The principal issue in dispute is whether the Minister was required to give to Mr Wong particulars of certain information concerning Mr Wong, received by the Minister from the Ministry of Public Security of China (‘the Chinese Ministry’), which was taken into account in deciding to refuse a visa to Mr Wong. It is desirable first to say something about the statutory scheme under which the disputes between Mr Wong and the Minister have arisen.

LEGISLATIVE FRAMEWORK

2 Section 29 of the Act provides, inter alia, that the Minister may grant permission to a non citizen (to be known as a visa) to remain in Australia. Under s 31(1), there are to be prescribed classes of visas. One of the classes that have been prescribed is a student visa. Section 45(1) provides that, subject to the Act and the regulations made under the Act, a non-citizen who wants a visa must apply for a visa of a particular class.

3 Section 46(1) provides that an application for a visa is valid if, and only if, the requirements set out in that section are satisfied. Section 47(1) requires that the Minister is to consider a valid application for a visa. Under s 47(2) the requirement to consider an application for a visa continues until:

• the application is withdrawn; or
• the Minister grants or refuses to grant the visa; or
• the further consideration is prevented by s 39 (which limits the number of visas) or s 84 (which deals with the suspension of consideration in certain circumstances).
4 Section 65 of the Act provides that, after considering a valid application for a visa, the Minister, if satisfied as to the matters set out in s 65(1)(a), is to grant the visa. However, if the Minister is not so satisfied, the Minister is to refuse to grant the visa. Under s 65(1)(a)(iii), one of the matters as to which the Minister must be satisfied is that the grant of the visa is not prevented by s 501 of the Act, which contains a special power to refuse the grant of a visa.

5 Section 501(3)(a) provides that the Minister may refuse to grant a visa to a person if:

• the Minister reasonably suspects that the person does not pass the character test; and
• the Minister is satisfied that the refusal or cancellation is in the national interest.
Section 501(6) sets out the circumstances in which a person does not pass the character test for the purposes of s 501(3).

6 Under s 501(4), the power conferred by s 501(3) to refuse to grant a visa may only be exercised by the Minister personally. Under s 501(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 made under s 501(3). Under s 51A, Subdivision AB of Division 3 of Part 2 of the Act is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with.

7 While the rules of natural justice and the code of procedure set out in Subdivision AB do not apply to a decision under s 501(3), some amelioration of the effect of s 501(5) is afforded by the operation of s 501C. Section 501C applies if the Minister makes a decision (referred to as ‘the Original Decision’) under s 501(3) to refuse to grant a visa to a person. Under s 501C(3), as soon as practicable after making the Original Decision, the Minister must give the person:

• a written notice that sets out the Original Decision; and
• particulars of the relevant information;
and invite the person to make representations to the Minister about revocation of the Original Decision.

8 Under s 501C(2), ‘relevant information’ is information (other than non-disclosable information) that the Minister considers:

• would be the reason, or part of the reason, for making the original decision;
• 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.
Under s 5(1), the expression, ‘non-disclosable information’ means information or matter whose disclosure would, in the Minister’s opinion:

• be contrary to the national interest in certain respects;
• be contrary to the public interest in certain respects; or
• found an action by a person other than the Commonwealth for breach of confidence.
9 Under s 501C(4), the Minister may revoke the Original Decision if:

• the person makes representations in accordance with the invitation under s 501C(3); and
• the person satisfies the Minister that the person passes the character test.
Under s 501C(5) the power to revoke may only be exercised by the Minister personally. If the Minister revokes the Original Decision then, pursuant to s 501C(6), the Original Decision is taken not to have been made.

10 Section 501E(1) relevantly provides that a person is not allowed to make an application for a visa at a particular time if, prior to that time, the Minister has made a decision under s 501 to refuse to grant a visa to the person and the decision has neither been set aside nor revoked.

11 Section 503A(1) relevantly provides that, 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 s 501 or s 501C, the officer must not divulge or communicate the information to another person, except where the other person is the Minister or an authorised migration officer and the information is divulged or communicated for the purposes of the exercise of a power under s 501 or 501C.

12 Authorised migration officer and gazetted agency are defined in s 503A(9) as follows:

‘(9) In this section:
Authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.
Commonwealth officer has the same meaning as in section 70 of the Crimes Act 1914.
Note: A Minister is not a Commonwealth officer.
gazetted agency means a body, agency or organisation that is:
(a) responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and

(b) specified in a notice published by the Minister in the Gazette.

Note: For specification by class, see section 46 of the Acts Interpretation Act 1901.’
PROCEDURAL BACKGROUND

13 Mr Wong is a national of China. He first entered Australia on 22 August 1999. At that time he was the holder of a Subclass 676 Visitor (Short Stay) Visa, issued in Hong Kong. On November 1999 he was granted a Subclass 560 Student Visa, which was valid until 5 January 2001. On 15 December 2000, Mr Wong lodged an application for the grant of a further Subclass 560 Student Visa. On 25 January 2001, he was granted a Bridging Visa A while that application was under consideration.

14 On 22 January 2002, the Minister decided, as contemplated by s 501(3) of the Act, that he reasonably suspected that Mr Wong did not pass the character test and that he was satisfied that a refusal of the visa applied for was in the national interest. Accordingly, the Minister decided to exercise his discretion to refuse the visa for which Mr Wong applied. He therefore refused the visa (‘the Grant Refusal Decision’).

15 On 25 January 2002 a delegate of the Minister wrote to Mr Wong saying, relevantly:

‘On 22 January 2002 [the Minister]... refused to grant you a subclass 560 Student Visa... A copy of the relevant legislative provisions and the decision record concerning the refusal to grant you a visa are attached for your information. Please note that Attachments C1-10 of the Decision Record document were not released as they are protected under s 503A of the Act.’

16 On 7 February 2002, Mr Wong was handed the letter dated 25 January 2002 notifying him of the Grant Refusal Decision and enclosing a copy of relevant legislative provisions and of the document referred to in the letter as ‘the Decision Record’ (‘the Decision Record’). The Decision Record was a document prepared within the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) to enable the Minister to consider making a decision concerning Mr Wong’s application for a student visa. Upon being handed the letter and its two enclosures, Mr Wong was taken into immigration detention, since, at that time he was an illegal non resident; his substantive student visa had expired on 5 January 2001 and his bridging visa expired upon the making of the Grant Refusal Decision.

17 On 15 February 2002, Mr Wong commenced a proceeding (‘the First Proceeding’) in the Federal Court of Australia under s 39B(1) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) claiming relief in respect of the Grant Refusal Decision. On 6 August 2002, Tamberlin J ordered that the application in the First Proceeding be dismissed with costs. On 26 August 2002, Mr Wong appealed to the Full Court from those orders and, on 20 December 2002, the appeal was dismissed with costs. An application for special leave to appeal to the High Court from the orders of the Full Court is still pending the outcome of these proceedings.

18 Pursuant to the invitation contained in the letter of 25 January 2002, Mr Wong, through his solicitor, Mr Peter W.H. Leung, made representations to the Minister pursuant to s 501C of the Act, requesting the Minister to revoke the Grant Refusal Decision. However, on 28 May 2002, the Minister decided not to revoke the Grant Refusal Decision (‘the Revocation Refusal Decision’).

19 On 5 July 2002, Mr Wong instituted another proceeding (‘the Second Proceeding’) in the Federal Court pursuant to s 39B(1) of the Judiciary Act. By the Second Proceeding, Mr Wong claimed relief in respect of the Revocation Refusal Decision. On 6 November 2002, Wilcox J ordered that the application in the Second Proceeding be dismissed with costs. The first appeal before this Full Court is brought from the orders of Wilcox J by notice of appeal filed on 22 November 2002 (‘Mr Wong’s First Appeal’).

20 On 18 February 2002, Mr Wong made a request under s 15 of the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) for access to certain documents, including Attachments C1-10 referred to in the Decision Record. On 18 April 2002, an officer of the Department decided that access to Attachments C1-10 should be refused on the ground that they contained information that was protected by s 503A. On 17 May 2002, Mr Wong requested an internal review of the decision of the Departmental officer and on 15 July 2002 another officer of the Department exempted Attachments C1-10 from disclosure (‘the Exemption Decision’).

21 On 13 September 2002, Mr Wong applied to the Administrative Appeals Tribunal (‘the AAT’) for review of the Exemption Decision. On 14 August 2003 a Deputy President of the AAT resolved what he described as ‘the preliminary issue in this matter’. The Deputy Present decided, inter alia, that s 503A(1) of the Act did not protect from disclosure documents supplied by the Chinese Ministry, on the ground that that body was not a ‘gazetted agency’ for the purposes of s 503A(9) of the Act.

22 On 4 September 2003, the Minister filed a notice of appeal to the Federal Court, purportedly under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), from the decision of the Deputy President of 14 August 2003. The Minister claimed orders setting aside that decision and remitting the matter to the Tribunal for further consideration.

23 Mr Wong challenged the competency of the Minister’s purported appeal from the AAT on the ground that there was no decision of the AAT within the meaning s 44(1) of the AAT Act. On 6 February 2004, Lindgren J ordered that the application in that proceeding be dismissed as incompetent. There is no appeal from the order dismissing the appeal from the AAT as incompetent. However, the proceeding has some relevance as will appear later.

24 On 11 March 2002, Mr Wong applied to the High Court of Australia for constitutional writ relief in respect of the Grant Refusal Decision (‘the Grant Refusal Proceeding’). On 10 July 2002, Mr Wong also applied to the High Court of Australia for constitutional writ relief in respect of the Revocation Refusal Decision (‘the Revocation Refusal Proceeding). On 6 February 2003, Gaudron J ordered that further proceedings in both applications be remitted to the Federal Court.

25 On 12 August 2003, Mr Wong filed, with leave, what purported to be an application pursuant to s 39B(1) of the Judiciary Act in the remitted Grant Refusal Proceeding and an amended application pursuant to s 39B(1) of the Judiciary Act in the remitted Revocation Refusal Proceeding. On 16 October 2003, the Minister filed notices of motion in each of those proceedings seeking orders that the claims for relief, in so far as they were based on certain of the grounds set out in the application and amended application respectively, be dismissed pursuant to O 20 r 2(1)(c) of the Federal Court Rules. The Minister contended that claims for relief on the grounds specified were an abuse of the process of the Court. In the case of the Grant Refusal Proceeding, that contention was based on the result of the First Proceeding. In the case of the Revocation Refusal Proceeding the Minister’s contention was based on the result of the Second Proceeding. In essence, the Minister contended that relief on the specified grounds was barred by the doctrines of res judicata, issue estoppel and Anshun estoppel.

26 The motions and the substantive claims in each of the Grant Refusal Proceeding and the Revocation Refusal Proceeding were heard together by Lindgren J. On 6 February 2004, his Honour concluded that the motions for summary dismissal would succeed in respect of certain grounds. However, his Honour then proceeded to deal with the balance of each proceeding in so far as it was based on grounds that did not give rise to a defence of res judicata or estoppel.

27 In relation to the Grant Refusal Proceeding, his Honour ordered that orders nisi in the nature of certiorari and of mandamus in relation to the Grant Refusal Decision be made but that the orders nisi be discharged and that Mr Wong pay the Minister’s costs. His Honour ordered that the application in the Grant Refusal Proceeding be otherwise dismissed. Mr Wong now appeals to the Full Court from those orders (‘Mr Wong’s Second Appeal’).

28 In the Revocation Refusal Proceeding, Lindgren J made an order absolute in the nature of certiorari, quashing the Revocation Refusal Decision and an order absolute in the nature of mandamus that the Minister perform the obligations imposed by s 501C(3) and s 501C(4) in relation to the Grant Refusal Decision. His Honour ordered the Minister to pay Mr Wong’s costs and that the application in the Revocation Refusal Proceeding be otherwise dismissed. The Minister now appeals to the Full Court from those orders (‘the Minister’s Appeal’).

29 On 8 April 2004, Lindgren J ordered (‘the Stay Order’) that the order absolute in the nature of mandamus in the Revocation Refusal Proceeding be stayed until the hearing and determination of the Minister’s Appeal. On 30 April 2004, Mr Wong filed a notice of motion seeking, relevantly, leave to file that motion out of time, if leave be needed, and leave to appeal from the Stay Order.

THE ISSUES IN THE APPEALS

30 In Mr Wong’s First Appeal, Mr Wong complains that the Revocation Refusal Decision was erroneous because the Minister was not advised of, and did not take into account, Mr Wong’s good conduct since entering into Australia. Mr Wong also asserts that the Revocation Refusal Decision was made for an ulterior purpose, namely returning Mr Wong to Hong Kong so as to permit foreign law enforcement authorities to pursue their enquiries.

31 In Mr Wong’s Second Appeal, Mr Wong complains that Lindgren J erred in holding that Mr Wong was estopped from raising grounds that had been explored and disposed of in the First Proceeding. Secondly, Mr Wong complains that, having determined that the Revocation Refusal Decision was wrong in law, his Honour should have held that the Grant Refusal Decision was thereby vitiated.

32 In the Minister’s Appeal there are three issues. The first issue is whether special circumstances existed such that, notwithstanding that it was unreasonable for Mr Wong not to have raised certain questions as to the construction of s 503A of the Act in the Second Proceeding, Mr Wong should be permitted to raise those questions in the Revocation Refusal Proceeding. The second and third issues concern the questions that it was unreasonable for Mr Wong not to have raised in the Second Proceeding. Both issues raise questions of construction concerning the Minister’s obligation under section 501C(3) to provide particulars of relevant information. The second issue is whether the Minister is an authorised migration officer within the meaning of s 503A. The third issue is whether the Chinese Ministry was adequately specified for the purposes of the definition of gazetted agency in s 503A(9), so as to constitute a gazetted agency within the meaning of s 503A. The Minister contended that the Minister is an authorised migration officer and the Chinese Ministry adequately specified for the purposes of s503A such that the Minster was precluded from furnishing to Mr Wong, pursuant to s 501C(3), the information contained in Attachments C1-10.

33 The Minister did not oppose the grant of extension of time within which to seek leave to appeal from the Stay Order. Mr Wong was therefore granted an extension of time within which to file his application for leave to appeal. The only basis upon which the Minister opposes the grant of leave to appeal from the Stay Order is that the grant of leave would be futile because the appeal is bound to fail.

34 The issue that would arise, if leave to appeal were granted, is whether s 73 of the Act authorises the Minister to grant a bridging visa to Mr Wong, such that he would be entitled to be released from detention, pending a decision in the Minister’s Appeal and, if the appeal is unsuccessful, the further consideration and making of a decision by the Minister under s 501C(3). The Minister contends that there is no power to grant a bridging visa in the absence of a valid application by Mr Wong and that no valid application can be made because of the operation of s 501E of the Act.

THE MINISTER’S APPEAL

35 It s desirable to deal first with the Minister’s Appeal, since the outcome of that can have a bearing on the outcome of Mr Wong’s First Appeal and Mr Wong’s Second Appeal. It is also critical to the outcome of Mr Wong’s application for leave to appeal.

THE RELEVANT LEGAL PRINCIPLES

36 The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’) and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.

37 A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun supra at p602

38 Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’: see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287 at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.

39 Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.

THE ISSUES NOT RAISED

40 The Minister relies on s 503A of the Act as affording the basis upon which the Minister was prevented from giving to Mr Wong the information contained in Attachments C1-10. However, Mr Wong now seeks to raise two hurdles in the path of reliance by the Minister on s 503A.

41 Under s 503A(9), the term ‘gazetted agency’ is defined as meaning a body, agency or organisation that is:

• responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and
• specified in a notice published by the Minister in the Gazette.
42 By notice published in the Commonwealth of Australia Gazette of 9 June 1999 (‘the Notice), the Minister, purporting to act under s 503A of the Act, specified ‘each body, agency or organisation that is responsible, in a Country... listed in Schedule 1 of [the Notice], for law enforcement, criminal intelligence, criminal investigation or security intelligence in that country... listed in Schedule 1’. The Notice is expressed to come into effect on 1 June 1999. In Schedule 1 of the Notice, which consisted of a list of countries, China was listed.

43 The Minister contends that, since the Chinese Ministry is a body, agency or organisation that is responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in China, it is a gazetted agency for the purpose of s 503A(9). Mr Wong, on the other hand, contends that the manner of the purported specification in the Notice is such that the Notice is invalid.

44 The Minister also contends that, at least for the purposes of the Constitution, it could not be doubted that the Minister is a ‘Commonwealth Officer’. In s 503A(9) the expression ‘authorised migration officer’ is defined as meaning a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under the Act. It is clear that the duties of the Minister include the performance of functions and the exercise of powers under the Act. It follows, so it is contended, that the Minister is an authorised migration officer for the purpose of s 503A.

45 The information contained in Attachments C1-10 of the Decision Record was communicated to the Minister by the Chinese Ministry on condition that it be treated as confidential information. So much is common ground. Clearly, the information was relevant to the exercise of the power conferred by s 501 and s 501A. The Minister contends, therefore, that pursuant to s 503A(1), the Minister was prohibited from divulging or communicating that information to another person other than an authorised migration officer. If that is so, the Minister was precluded by s 503A(1) from giving the information to Mr Wong pursuant to s 501C(3).

46 The Second Proceeding and the subsequent Revocation Refusal Proceeding both sought judicial review of the Revocation Refusal Decision. Mr Wong did not submit in the Second Proceeding that s 503A and the Notice in the Gazette did not have the effect of prohibiting the Minister from divulging to him particulars of the information contained in Attachments C1-10. Rather, it was assumed by Mr Wong and his legal representatives that the Decision Record was correct in stating that the information contained in Attachments C1-10 was information protected under s 503A and could not be disclosed to him or his legal advisers or agents for comment. The arguments that Mr Wong put to Lindgren J in the Revocation Refusal Proceeding were clearly relevant in his attack on the Revocation Refusal Decision in the Second Proceeding. The arguments properly belonged to that attack.

47 Lindgren J concluded that s 503A did not prohibit the Minister from giving to Mr Wong particulars of the information contained in Attachment C1-10 and that s 501C(3)(a)(ii) required the Minister to do so. That conclusion resulted from his Honour’s view that the expression ‘authorised migration officer’ in ss 503A(1) and (2) does not include ‘the Minister’. His Honour considered that the text and scheme of s 503A revealed a legislative intention that the Minister not be subject to the prohibition mentioned. His Honour also concluded that the Chinese Ministry was not a gazetted agency within the meaning of s 503A(9) because it was not a body agency or organisation specified in a notice published by the Minister in the Gazette. That conclusion was based on his Honour’s view that the Notice was invalid.

APPLICATION OF THE ANSHUN PRINCIPLE

48 The questions just outlined are not without complexity and difficulty. However, they are questions that Lindgren J considered it was unreasonable for Mr Wong not to have ventilated in either the First Proceeding or the Second Proceeding. The present question is whether, notwithstanding that conclusion reached by Lindgren J, his Honour erred in permitting Mr Wong to raise those issues for the first time in the Revocation Refusal Proceeding.

49 His Honour found that it was unreasonable for Mr Wong not to have relied on the arguments as to the construction of s 503A and the validity of the Notice in the Gazette in the Second Proceeding. Nevertheless, his Honour concluded that, notwithstanding that it was unreasonable for Mr Wong not to have raised the arguments in the Second Proceeding, special circumstances existed such that Anshun estoppel would not operate to prevent Mr Wong from relying on those arguments in the Revocation Refusal Proceeding.

50 On his Honour’s view as to those arguments, the Minister had ‘failed completely to obey the mandate of s 501C(3)’, with the result that Mr Wong has not had an effective opportunity, which the Parliament intended he should have, of responding to the case made against him. His Honour considered that it was a serious matter that there should be a total non compliance by the Minister with a mandatory statutory provision. Thus, his Honour took into account, as special circumstances, the consequences of applying the Anshun principle:

‘it is a weighty consideration in favour of Mr Wong that if Anshun estoppel defeated him, the Minister will have disobeyed the mandatory provision found in s501C(3), and the legislative policy reflected in that section will have been frustrated.’
51 His Honour accepted, however, that the questions raised by the arguments are difficult and finely balanced and that the interpretation of the legislation by the Minister was understandable, having regard to the complexity of the questions.

52 This is not a case where either the Minister or the Department has contumeliously refused to obey the law. The construction questions concerning s 503A and the Notice are complex and the mistaken view upon which the Minister acted was understandable. If it were the case that a failure by a Minister to comply with a positive duty constitutes ‘special circumstances’ then it would seem every such failure would be sufficient to invoke the special circumstances exception, requiring the full ventilation of argument on the issue that would otherwise be estopped. Those circumstances alone, do not constitute the requisite special circumstances, such that it would not be an abuse of process for Mr Wong to ventilate issues that it was unreasonable for him not to have raised in either the First Proceeding or the Second Proceeding.

53 Having regard to the litigious history of the dispute, some inference might be drawn that Mr Wong has a particular interest in remaining in Australia as a student for the relatively short time that a student visa would permit. However, there was no evidence before the primary judge or the Full Court to suggest that the refusal of a student visa had adverse consequences of any particular significance concerning the life and liberty of Mr Wong such as would militate in favour of special circumstances. As his Honour observed, a student visa would simply permit Mr Wong to remain in Australia for a particular purpose for a limited period.

It is arguable that having regard to the outcome that results from applying Anshun estoppel in this case, is a relevant policy consideration. There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the Executive Government and its representatives, but only to individuals. This is because the Executive is a respondent by force of statute or of the Constitution and is not subject to the same psychological burden that may weigh on individual litigants; they cannot be ‘vexed’ in the same way by instigation of subsequent proceedings. That may be a more appropriate basis, namely that of accepted public policy, to ensure that representatives of the Executive Government cannot rely on the principle of Anshun estoppel to frustrate, in effect, the intended legislative mandate. However that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action (at [39] above).

54 The Minister’s Appeal should be upheld and the orders made in the Revocation Refusal Proceeding should be set aside. The Revocation Refusal Proceeding should be dismissed with costs. Mr Wong should pay the Minister’s costs of the Minister’s Appeal.

APPLICATION FOR LEAVE TO APPEAL

55 Pending a hearing of the Minister’s Appeal, Lindgren J granted a stay of certain of the orders that he made in the Revocation Refusal Proceeding. Mr Wong seeks leave to appeal from his Honour’s orders in so far as his Honour failed to impose a term that the Minister give consideration to the grant of a bridging visa to Mr Wong pending the making of a decision by the Tribunal pursuant to s 501C(3) in respect of Mr Wong’s request to revoke the decision to refuse a student visa. The Minister contends that such a term would be futile because the Minister has no power to grant a bridging visa in the circumstances. The application for leave would be otiose if the Minister’s appeal is upheld. In the light of the conclusion reached above in relation to the Minister’s Appeal, it is not necessary to deal with the application for leave to appeal, which should be dismissed with costs.

MR WONG’S FIRST APPEAL

56 Mr Wong’s first ground of appeal is that Wilcox J erred in failing to hold that the Revocation Refusal Decision was an error because:

• the Minister was not advised of and did not take into account Mr Wong’s good conduct since entering Australia;
• a relevant and significantly material matter was not put before the Minister in that the Minute prepared by the Department of 9 May 2002 (‘the Minute’) did not make express comment that Mr Wong’s claims to have conducted himself properly since his entry into Australia were correct;
• the Minister did not apply the correct test under s 501C, as to whether the Minister was satisfied by Mr Wong that he passes the character test.
57 There was no allegation made against Mr Wong concerning anything he had done in Australia. Accordingly, there was nothing in his Australian conduct to lead to a finding that he was not of good character. Nor was anything put to the Minister to the contrary. In those circumstances it is difficult to see any point in this contention. In the circumstances of this case the issue of whether or not Mr Wong had conducted himself in Australia properly was irrelevant to the question of whether or not the Minister was satisfied that Mr Wong passed the character test. Clearly, it was the information contained in Attachments C1-10 that resulted in the Minister not being satisfied that Mr Wong passed the character test.

58 Mr Wong contends that, upon its proper construction, the minute prepared by the Department for the Minister was an invitation to exercise a ‘general discretion to revoke without identifying the statutory requirement as to good character’. He contends that the Minster, therefore, did not apply the correct test required by s 501C, namely, whether he was satisfied by Mr Wong that he in fact passed the character test.

59 Mr Wong contended that an inference should be drawn that the evidence of communications between the Department and the Chinese Ministry in relation to Mr Wong give rise to an inference that the purpose of the Minister in his decision making was the return of Mr Wong to China. He contends that that was a substantial purpose of the Minister in view of the absence of evidence relating to, and any discussion of, Mr Wong’s character in the Minute prepared by the Department. He says that the Minister’s decision making process is ‘infused with a purpose of detaining [Mr Wong] in custody’ and that was not a permissible purpose for the exercise of power under s 501 or s 501C. Thus, so it was argued, the Revocation Refusal Decision was an exercise of power by the Minister for an improper purpose, namely to return Mr Wong to China so that he could be interrogated by the authorities there.

60 Mr Wong contended that, in deciding that it was in the national interest that action be taken quickly to prevent Mr Wong from disappearing into the community before his case was dealt with, the Minister had asked whether a consequence of refusing a visa, rather than the refusal itself, was in the national interest. Thus, Mr Wong drew attention to a statement in the Decision Record that:

‘You may find that it is in the national interest that action be taken quickly to prevent [Mr Wong] from disappearing into the community before his case is dealt with.’

Mr Wong contended that it is not a relevant consideration whether the Minister is satisfied, as s 501(3)(d) requires, that it is in the national interest to refuse a visa application. Quick enforcement action is not a reason for refusing to grant a visa.

61 It is difficult to discern any adoption of a wrong test by the Minister in following the recommendation contained in the Minute. It is difficult to understand the ground upon which it is said that the decision was bad in law. The contention that his Honour erred in failing to hold that the Minister’s decision was erroneous should be rejected.

62 The second ground relied on by Mr Wong is that the Minister’s decision was in error because:

• the Minute did not expressly make comment that Mr Wong’s representations contained a claim that the national interest test was not properly applied; and
• the Minister was not advised of, and did not take into account, the policy consideration that the national interest test in s 501(3) requires assessment of whether or not there is an ‘emergency aspect’ present.
It is difficult to understand the substance of the grounds so articulated.

63 Mr Wong contended that, while it was a rational step for officers of the Department to act forthwith, once a visa had been refused, to ensure that an applicant did not disappear into the community, the Department wrongly informed the Minister that he could accept that preventing Mr Wong from disappearing into the community was a reason why the Minister could properly find that it was in the national interest to refuse the visa application. There is no substance in the contention.

64 Finally, Mr Wong relied on the ground that Wilcox J erred in failing to hold that the Revocation Refusal Decision was exercised for an ulterior purpose, namely the purpose of returning Mr Wong to Hong Kong so as to permit foreign law enforcement authorities to pursue their enquiries with him. That ground appears to be a re-agitation of the ground already rejected in relation to the Grant Refusal Decision before Tamberlin J and the Full Court. There is no substance in the ground and Mr Wong should not be permitted to raise in his attack on the Revocation Refusal Decision, the ground upon which he has failed in his attack on the Grant Refusal Decision. It follows that Mr Wong’s first appeal should be dismissed with costs.

MR WONG’S SECOND APPEAL

65 Mr Wong contends that Lindgren J erred in holding that Mr Wong was estopped from arguing certain grounds of his amended application in the Grant Refusal Proceeding. Mr Wong contends that:

• the doctrines of issue estoppel and Anshun estoppel do not apply in proceedings involving judicial review of administrative action;
• there were special circumstances so as to displace any estoppel that might arise.
Mr Wong also contends that, having concluded that the Revocation Refusal Decision should be quashed, his Honour erred in not concluding that the Grant Refusal Decision was thereby vitiated. In the light of the conclusion reached above concerning the Minister’s appeal, this question does not arise.

66 For the reasons indicated above, there is no reason why the doctrine of Anshun estoppel should not be applied to proceedings involving the judicial review of administrative action. The doctrine is based on questions of abuse of process. Having determined, in considering the Minister’s Appeal, that no special circumstances have been made out, contrary to the conclusion reached by Lindgren J, it follows, a fortiori, that no special circumstances have been made out that would justify permitting Mr Wong to raise in the Grant Refusal Proceeding issues that could and should have been raised in the First Proceeding but which were not raised in the First Proceeding. Mr Wong’s second appeal should be dismissed with costs.

CONCLUSION

67 It follows from the above that Mr Wong has been unsuccessful in relation to all of the matters presently before the Full Court. Accordingly, Mr Wong should pay the Minister’s costs of each of those proceedings before the Full Court.





I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 30 August 2004

In each of proceedings N 1246 of 2002 and N 242 of 2004


Counsel for the Appellant: JC Sheahan SC, RB Robinson



Solicitor for the Appellant: Peter WH Leung



Counsel for the Respondent: J Basten QC, M Allars



Solicitor for the Respondent: Blake Dawson Waldron




In proceeding N 237 of 2004




Counsel for the Appellant: J Basten QC, M Allars



Solicitor for the Appellant: Blake Dawson Waldron



Counsel for the Respondent: JC Sheahan SC, RB Robinson



Solicitor for the Respondent: Peter WH Leung




In proceeding N 760 of 2004




Counsel for the Applicant: JC Sheahan SC, RB Robinson



Solicitor for the Applicant: Peter WH Leung



Counsel for the Respondent: J Basten QC, M Allars



Solicitor for the Respondent: Blake Dawson Waldron



Date of Hearing: 17, 18 May 2004



Date of Judgment: 31 August 2004
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