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Cases

1 This is an appeal from a Judge of this Court (Tamberlin J) dismissing an application by the appellant (Mr Wong) for relief under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The relief sought is, substantially, the setting aside of a decision of the Respondent Minister ("the Minister") refusing Mr Wong's application for a subclass 560 student visa under s 501(3) of the Migration Act 1958 (Cth) ("the Act").

2 Mr Wong is a national of the Peoples' Republic of China with residency status in Hong Kong. He is married and his wife and children presently reside in Hong Kong. He entered Australia on his own on 22 August 1999 as the holder of a visitor's visa. Shortly after his arrival he applied for a student visa to enable him to undertake a business management course. That application was successful and he was granted a sub-class 560 Student Visa which remained valid until 5 January 2001.

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440 (20 December 2002)
Last Updated: 20 December 2002


FEDERAL COURT OF AUSTRALIA
Wong v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 440


TAI SHING WONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 889 OF 2002

BLACK CJ, HILL & HELY JJ

20 DECEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 889 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


JUDGE:
BLACK CJ, HILL & HELY JJ


DATE OF ORDER:
20 DECEMBER 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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 889 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




JUDGE:
BLACK CJ, HILL & HELY JJ


DATE:
20 DECEMBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a Judge of this Court (Tamberlin J) dismissing an application by the appellant (Mr Wong) for relief under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The relief sought is, substantially, the setting aside of a decision of the Respondent Minister ("the Minister") refusing Mr Wong's application for a subclass 560 student visa under s 501(3) of the Migration Act 1958 (Cth) ("the Act").

2 Mr Wong is a national of the Peoples' Republic of China with residency status in Hong Kong. He is married and his wife and children presently reside in Hong Kong. He entered Australia on his own on 22 August 1999 as the holder of a visitor's visa. Shortly after his arrival he applied for a student visa to enable him to undertake a business management course. That application was successful and he was granted a sub-class 560 Student Visa which remained valid until 5 January 2001.

3 Mr Wong applied on 15 December 2000 for renewal of his student visa. The course he had commenced was of a three year duration and the application for a further student visa was required to enable him to complete the course. No decision was made on his application until 22 January 2002. He was granted a bridging visa in the period from the expiration of the initial student visa which permitted him to remain in Australia.

4 On 7 February 2002 Mr Wong was arrested and taken into custody by Immigration officers. At the time of his arrest he was handed a document notifying him of the Minister's refusal to grant him the student visa together with a copy of the Decision Record. This was the first time Mr Wong had notice of the Minister's decision. The Notice of Refusal, omitting formal parts, read as follows:

"On 22 January 2002, the Minister for Immigration and Multicultural Affairs [sic] and Indigenous Affairs, acting personally under sub section 501(3) of the Migration Act (the Act), refused to grant you a subclass 560 Student Visa on the grounds that the Minister reasonably suspects that you do not pass the character test and the Minister is satisfied that refusal to grant a visa is in the national interest.
The particular ground under which the Minister decided that you do not pass the Character Test is set out in Section 501(6)c(ii) of the Act.

For the purposes of this section, a person does not pass the `character test' if:

(c) having regard to either or both of the following:

(i)...

(ii) the person's past and present general conduct;

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 section 503A of the Act. I have also attached a copy of the Minister's direction 21 titled Direction under section 499 - Visa refusal and cancellation under section 501 of the Migration Act 1958 for your information.

The decision to refuse to grant you a visa application under section 501(3) was made personally by the Minister for Immigration and Multicultural Affairs [sic] and Indigenous Affairs. This decision is not reviewable by the Administrative Appeals Tribunal. You may wish to obtain legal advice in relation to any other review options that may be available to you.

You now have the opportunity to make written representations to the Minister regarding the possible revocation of the Minister's decision under Section 501C of the Act, provided you are in immigration detention. Please note a representation must be provided within seven (7) days of receipt of this letter. A copy of the relevant section of the Migration Regulations 1994 (reg 2.52) which sets out the procedures to be followed when making representations is attached for your information.

..." (Emphasis added)

The legislative background

5 Section 501 of the Act provides relevantly:

"(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)

6 Section 501C of the Act provides

"501C Refusal or cancellation of visa - revocation of decision under subsection 501(3) or 501A(3):
(1) This section applies if the Minster 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 Minster that the person passes the character test (as defined by section 501)

..."(Emphasis added)

7 By force of s 503A of the Act the Minister is not required to communicate to a visa applicant, or to the Court, information supplied to him by law enforcement agencies or intelligence agencies. It was for this reason that the documents Attachments C1-10 referred to in the Notice of Refusal were not released to Mr Wong. Obviously the inability to know what was in these documents makes it difficult to know what matters the Minister took into consideration in making the decision he did on 22 January 2002. That this was the case was recognised by those who advised the Minister who noted in a Minute to him that it limited Mr Wong's ability to seek revocation of the Minister's decision under s 501C, but it did not preclude it.

8 The "Decision Record", which was given to Mr Wong at the same time as the Notice of Refusal was in the usual form such documents take. It was in two parts. The first part was obviously prepared by an advisor, presumably an officer of the Department. It contained, among other things, a discussion of the matters which the author regarded as relevant to the decision. The second part was headed "DECISION". This part of the document gave the Minister a choice of alternatives open to him. The choice the Minister rejected was to be deleted. The document was then signed by the Minister and dated as a record of the decision. It is reasonable to infer, in the absence of any evidence to the contrary, that the Minister adopted the discussion contained in the document, so that, for example, if that discussion was erroneous and the error bore upon the decision it would be reasonable to assume that the Minister's decision would have been tainted by that error.

9 Paragraphs 6 and 7 of the document discussed s 501(6)(c)(ii). The paragraphs stated:

"In reaching a conclusion as to whether a non-citizen does not pass the character test, you must reasonably suspect that having regard to the person's past and present general conduct he is not of good character. The "reasonable suspicion" test is met if the evidence available to you arouses your suspicions; the suspicion is an honestly held suspicion and is reasonable in the circumstances.
There is reasonable suspicion based on protected information at Attachments C1 - 10 that Mr Wong does not pass the character test because of his past and present general conduct."

10 A substantial portion of the discussion concerned the meaning of "national interest" and in particular the decision of the High Court in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 ("Patterson"). Some part of that discussion was the subject of criticism by counsel for the appellant in the course of argument but it must be said that no submission was made to us that the present decision would have been affected by any error for this reason.

11 Paragraph 11, on which the appellant relied and which gives, perhaps, some hint as to what may have been in the protected materials stated:

"There is also a view that the `national Interest' [sic] may include Australia's `reputation' and `good name in the world'. It is certainly reasonable to conclude that Australia's international reputation and good standing would be damaged if it provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country and seek to evade that country's law enforcement action. Given Mr Wong's record in evading law enforcement activities, and that Australia's international reputation and good name is paramount, you may find that it is in the national interest that action be taken quickly to prevent him disappearing into the community before his case is dealt with. It is therefore, open for you to be satisfied, based on the protected information, that it is in the national interest to refuse Mr Wong's visa application under subsection 501(3)."
12 Paragraphs 16 and 17, which appeared among a number of paragraphs concerning the possibility of revocation of a decision to refuse a visa made under s 501(3) of the Act, stated as follows:

"The grounds under which you are considering refusing Mr Wong's visa is that you reasonably suspect he fails the character test having regard to his `past and present general conduct' (subsection 501(6)(c)(ii)). Unlike subsection 501(6)(a), subsection 501(6)(c)(ii) is not absolute in its direction that the person fails the character test.
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."

13 The final section of the first part of the document discussed the case by reference to the Directions which had been made by the Minister under s 499 of the Act and as a guide to decision making by delegates of the Minister. It was pointed out that the Minister was not, himself, bound by the Directions, although it was open to him to take matters referred to in those directions into account. Paragraphs 24 and 27, to which we were taken in argument and which were contained in this section of the document, provided as follows:

"Based on the protected information, it is open for you to find that the offences are such that the Australian community would expect that Mr Wong would not be granted a visa.
...

The Department has no evidence of rehabilitation and recent good conduct."

Events subsequent to Mr Wong's arrest

14 Mr Wong's solicitor, acting on instructions from his client made representations in accordance with s 501C(3) of the Act. He noted in those representations that he could not, on Mr Wong's behalf, address specific matters, or make specific representations because he had not been able to see the "protected information". He complained, in effect, that the Minister should have been advised that it would be virtually impossible to make representations when the material in the "protected information" had not been disclosed to him. The solicitor said that to the extent that the protected information alleged that he had committed serious crimes in another country and had acted so as to evade law enforcement activities this was denied. It was pointed out that there was nothing in paragraph 11, set out above, which asserted that Mr Wong had committed serious crimes in any country.

15 The submission set out details of what Mr Wong had done in Hong Kong, both while working with the Customs Service there and later working with his brother's company. He categorically denied any criminal activity, while admitting that he had received from time to time "gifts" of alcohol and cigarettes while working with Customs. The submission suggested that the "protected information" might have concerned a person named Lai Sing Chung who the Chinese authorities had alleged was involved in corrupt activities. The solicitor said that Mr Wong had never been required to provide any information in relation to Lai Sing Chung. Further the solicitor pointed out that Mr Wong had never committed any criminal act in Australia but had pursued the course for which he had originally obtained a visa and for the continuance of which the visa now rejected had been sought. He said that Mr Wong had at all times observed the requirements of his student visa. He requested that Mr Wong's lawful behaviour in Australia should be taken into account in determining whether the decision should be revoked.

16 The submission argued that the need to act quickly and to ensure that Mr Wong departed the country, which had been referred to in paragraph 11 of the Decision Record, was not a relevant matter to take into account by the Minister in refusing the visa application. Neither was it, so the submission argued, a relevant consideration that the Minister take the action he did so as to prevent Mr Wong from disappearing into the community. These were, the submission continued, matters which followed the Minister refusing the visa rather than grounds for his refusing the visa.

17 The submission was, it seems, rejected. The present appeal is not, however, concerned with that matter.

The decision appealed from

18 Before the learned primary Judge, and again before us, it was submitted on behalf of Mr Wong that:

(i) the power to refuse the visa application was exercised for an ulterior purpose. It was said that the extrinsic materials pertaining to the enactment of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), (the amending Act which introduced the relevant provisions here under consideration) led to the conclusion that the power to refuse a visa under s 501(3) could only be exercised in an emergency situation or where there were exceptional circumstances and that as the present case could not be so characterised, it was said that the power must have been used for an ulterior purpose.

(ii) there was no evidence upon which the Minister could find that Mr Wong was not of good character.

(iii) the Minister had failed to take into account a relevant matter, that being Mr Wong's good conduct since entering Australia.

(iv) that the Minister erred in making the findings he made concerning the national interest.

(v) The exercise of the Minister's residual discretion had miscarried because it assumed an ability on Mr Wong's part to make representations, yet by virtue of his not being apprised of the "protected information" he was unable to do so.

19 The learned primary Judge rejected these submissions. He found that there was no evidence of any ulterior purpose and that in any event the legislation had to be construed in accordance with its terms, not the extrinsic material. His Honour also found that no error had been shown in relation to the Minister's consideration of character. His Honour pointed out that it did not follow from the material before the Court that the Minister could not properly have formed the view that Mr Wong was not of good character by reason of general conduct. The Minister had access to the protected information and it was apparent that reliance had been placed on the protected information. His Honour said also that while it was true that there had been no determination that Mr Wong had been convicted of any criminal offence this was not a pre-requisite to the finding which the Minister was required to make.

20 Next, his Honour concluded that the Minister must have appreciated that there was no suggestion of any allegation of criminal conduct while Mr Wong was in Australia. However the fact that his general conduct in Australia had been good did not necessitate the view that that general good conduct had to outweigh any past misconduct. There was a necessity of balancing the two. It did not follow from the fact that the material before the Minister contained no evidence of recent good conduct that the Minister's conclusion had been based upon an erroneous assumption. Further, when the solicitor's representation claiming good conduct while in Australia came before the Minister the Minister took no action to revoke the decision initially made by him to refuse the application for a student visa.

21 The primary Judge also concluded that the material before the Minister was not misleading as to the right to make representations. Indeed it pointed out fully that there were limitations arising from the nature of the protected information. Accordingly the decision in Patterson where it had been held that the material before the Minister was misleading as to the existence of a right of review under s 501C of the Act was distinguishable.

22 Finally his Honour noted that there was nothing in the material before the Court to indicate that the Minister was not entitled to reach the decision he did. And, despite a submission to the contrary, it was open to the Minister to take into account the possibility that Mr Wong might disappear into the community in arriving at the decision on national interest, for a decision maker was entitled to take into account the consequences of the decision.

23 His Honour therefore found that there had been no jurisdictional error of the kind which would entitle Mr Wong to relief under s 39 of the Judiciary Act. It was thus unnecessary for him to decide whether the Court had jurisdiction to entertain the application having regard to s 474 of the Act.

24 It was from this decision that Mr Wong appealed.

25 We turn now to consider the submissions made on Mr Wong's behalf to us.

Improper Purpose

26 It is submitted that the Court should conclude that the power to refuse the visa application was exercised for the ulterior purpose of returning Mr Wong to Hong Kong and therefore to permit foreign law enforcement authorities to pursue their enquiries. It was said that the Court should reach that conclusion from the following: :

(i) That of the alternatives open to the Minister, the power which was selected for use by the Minister in refusing Mr Wong's application, namely s 501(3), was one whereby the decision to refuse the visa could be kept covert until Departmental officers were in a position to effect arrest and detention at the same time as the decision was notified. That is to say the motivation underlying the exercise of the power was the ability to take Mr Wong immediately into custody. No other power to refuse the grant of the visa was even considered.

(ii) That there was no suggestion in the evidence that Mr Wong had committed any serious crime or other act that necessitated that he be detained so as to protect the Australian public.

(iii) That there was nothing in the appellant's conduct whilst he was in Australia that suggested in any way that he was likely to abscond should the visa be refused. In particular Mr Wong was only ever here on a temporary visa. Had he wished to travel to any place other than Hong Kong it was open for him to do so.

27 The second and third of these inferences are easily drawn. The first is not a necessary inference. But even if all three inferences are drawn, there is no reason why it should then be inferred that the Minister exercised the power for the purpose of returning Mr Wong to Hong Kong, so as to permit the authorities to pursue their enquiries there. Without more, unless it can be shown in this particular case that it was not open to the Minister to exercise the power of refusal under s 501(3) of the Act, it cannot be shown that the Minister exercised the power for a purpose not permitted by the Act. In any event, there is nothing in the evidence before the Court which leads to the conclusion that the Minister was motivated by any purpose other than to exercise the power open to him under s 501(3), with the attendant consequences that the exercise of the power under that section had.

Good Character

28 The submission commences by making the point that the matter in s 501(6)(c)(i) (namely past and present criminal conduct) and the matter in s 501(6)(c)(ii) (namely past and present general conduct) are separate, or distinct matters. Further it is said, "criminal conduct" encompasses not only conduct for which there has been a conviction but conduct where there has been no conviction. It is then submitted that it can be inferred that there was no past or present criminal conduct of Mr Wong which the Minister took into account, none being referred to. It is said to follow that Mr Wong's conduct was not such as to be characterised as past or present criminal conduct. Accordingly, so the argument proceeds the decision record was in error and the Minister misdirected himself by taking into consideration irrelevant material being, presumably non-criminal conduct so serious as to justify refusal of the visa.

29 The submission is untenable even if it were correct to say that there is a dichotomy between past and present criminal conduct and past and present general conduct, so that each is exclusive of the other. In determining whether a person does not pass the character test the Minister may consider any of the three matters referred to in s 501(6). Here it would seem the Minister had regard to what subparagraph (6)(c) refers to as "past and present general conduct". That is to say the Minister was entitled to have regard to conduct of a general kind even if it was not criminal conduct such as to result in a substantial criminal record (para (a) or an association of the kind referred to in para (b)). There is no reason at all, whether as a matter of language or as a matter of policy, why general conduct may not lead to the conclusion that a person is not of good character, notwithstanding that it is not criminal conduct. Hence to take into account non-criminal conduct is not to take into account an irrelevant matter.

30 However, the suggested dichotomy does not exist.

31 We were referred to the decision in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194-6 in support of the existence of the dichotomy. That was a case on the provisions of s 501 prior to the amendment to the section in 1998. Prior to the amendments s 501(1)(a) directed the Minister to have regard either to "the person's past criminal conduct" or to "the person's general conduct". The Full Court noted that the two matters were alternative as indeed the section provided. Likewise in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 582, [243], again a case concerning s 501 prior to the 1998 amendments, Callinan J said:

"Each of the paragraphs in s 501(2)(a) and (b) is disjunctively stated. Accordingly, in considering whether a person is not of good character under s 501(2)(a)(i) the initial focus is upon the person's past criminal conduct just as, under s 501(2)(a)(ii) it would be upon the person's general conduct. And under s 501(2)(b) that focus would be upon the person's association with another or others, or upon the person's involvement in criminal conduct. In each case express reference has been made to one particular matter or matters only. The express reference therefore, particularly in the absence of reference to other matters, evinces a clear legislative intent that the particular matter stated is a matter of primary importance, and may be the dominant or most important matter to which the Minister should have regard in satisfying himself that the person is not of good character. Otherwise the legislation would simply have referred to character and not to any particular indicia of it. Neither par (a) nor (b) uses expressions such as `in all the circumstances of the case.'"
32 We were referred by the Minister to dicta in the decision of the full Court of this Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 379 to the opposite effect, namely that the categories of criminal conduct and general conduct were not "of course, mutually exclusive". In a joint judgment Black CJ, Burchett and Tamberlin JJ said in the passage cited:

"The general conduct of a person may involve criminal conduct and criminal conduct may involve aspects of general conduct."

That case was likewise decided on s 501 in its form prior to amendment in 1998.

33 However, s 501 was amended in 1998 so that the two matters "past or present criminal conduct" and "past or present general conduct" are no longer alternatives. As a matter of construction it seems to us that conduct can now be both general and criminal at the same time so that the Minister may take into account both conduct which is criminal conduct and conduct which is general conduct. While that may mean that the Minister may take into account conduct which is criminal and also other conduct which is not, there is no reason why it does not permit the Minister under the heading "general conduct" to take into account conduct which might also be criminal conduct as was suggested to be the case under the previous section in the decision in Morales referred to above. Once this is appreciated it is clear that the statement that the Minister has taken into account past and present general conduct cannot lead to the conclusion that the conduct the Minister has taken into account is conduct that is not past or present criminal conduct. The concepts of criminal conduct and general conduct referred to cannot, now, be considered to be mutually exclusive. In other words, the fundamental premise upon which the submission depends is itself flawed.

34 It is obvious from a perusal of the submission before the Minister that there are a number of references to criminal conduct. This is particularly so in the discussion of the Directive made by the Minister (Direction 21). It is obvious enough that the Directive (made by the Minister for use by delegates in their decision making), even if it suggested a dichotomy between criminal and general (and therefore non-criminal conduct), could not substitute for the clear language of the statute. But even if it were the case that there was a dichotomy between general and criminal conduct it could not be the case that the taking into account of non-criminal matters would be the taking into account of an irrelevant matter as submitted.

35 Finally it cannot be said, as it is submitted, that references to "conduct" in the submission before the Minister, if those references include criminal conduct, showed a fundamental misconception as to the nature of the opinion to be formed so that the Minister would have been misled. Once it is appreciated that there is no true dichotomy between criminal and general conduct it is obvious both that references to criminal conduct can be included in general conduct and that there has been no fundamental misconception as to the nature of the opinion to be formed so as to lead to a jurisdictional error on the part of the Minister.

Failure to take into account good conduct since entering Australia

36 The submission is that it can be inferred that since entering Australia Mr Wong's conduct had been good and that this had not been taken into account by the Minister.

37 The learned primary Judge, in dealing with the submission pointed out that the decision record contained no allegation of any criminal conduct while Mr Wong was in Australia and that the absence of such an allegation must have been appreciated by the Minister. Further, his Honour noted that the fact that Mr Wong may have complied with the law while he was in Australia did not require the conclusion that the general conduct now was good or that it must outweigh any past bad conduct. The task of the Minister was one of balancing the two. Further that there was no necessity that it be pointed out to the Minister that Mr Wong had complied with Australia's migration laws as a separate factor because there was no suggestion to the contrary in the material.

38 We agree.

The invitation to make representations was a futility

39 There is more substance in this argument.

40 It is submitted that the present case is not distinguishable from Patterson and that the learned primary Judge, in finding that it was, erred in law.

41 Patterson was a case where the applicant had been convicted of crimes of such a kind that any representation that might be made after the visa was cancelled could not succeed. It was held that the material before the Minister was misleading because it did not make clear to the Minister that this was the case. All that the material before the Minister did was to say that if the Minister acted under s 501C(3) then the applicant would have a right to make representations. Gummow and Hayne JJ say at 455, [194]:

"What was not explained to Senator Patterson was that, in the circumstances of the present case, her power to revoke the decision would only arise if the prosecutor could satisfy her that he passed the character test, which, given his criminal record, he could not do."
42 Accordingly their Honours held that the Minister had acted on an erroneous basis, namely that the appellant did have a real opportunity to make representations. Accordingly their Honours were of the view that there had been a jurisdictional error.

43 In the present case the writer of the note to the Minister (and it can be assumed that the Minister acted upon that note in the absence of evidence to the contrary) did point out that Mr Wong's ability to obtain revocation under subsection 501C was limited. This was so, it was said, because Mr Wong did not have access to the "protected information" which the Minister had taken into account. The note continues, however, to say, that the fact that Mr Wong is told that it is "general conduct" that has been considered, that he has been provided with a copy of the Direction which the Minister had made under s 499 and the grounds relating to the national interest might enable Mr Wong to convince the Minister to exercise his power of revocation.

44 Counsel for the appellant specifically conceded that it was not argued that the power to act under s 501(3)(a) was conditioned upon it being open to the person in respect of whom the decision is made to be able to convince the Minister that he should exercise the power of revocation. The submission is, based upon Patterson, that the Minister in making the decision he did, was misled in being advised that it would be possible, even if difficult, for Mr Wong to make representations which could convince the Minister, when it would in fact be virtually impossible to do so. According to what was said in Patterson this would be then a jurisdictional error and would lead to the decision being set aside.

45 There is little doubt that having regard to the paucity of information which Mr Wong was given it would indeed have been difficult for him to make an appropriate representation. On the other hand the situation is not such as in Patterson where the nature of the conviction made effective representations impossible. Here, it was not impossible on the material before the Court that Mr Wong could make a representation. Presumably Mr Wong would have had some idea of what he was accused of in the "protected material". But even assuming that he had no idea, that does not mean that he could not make representations to the Minister, as indeed he did through his solicitor.

46 The submission also was said to turn upon the proposition that Mr Wong, having been advised that the decision was made by reference to past and present general conduct would have been led to the conclusion that, because of the dichotomy alleged to exist between past and present criminal conduct and past and present general conduct, what was alleged against him did not relate to criminal conduct. Reference was made to various parts of the submission which had been put to the Minister which made reference to criminal conduct as indicating that the real decision had been based on criminal conduct, yet Mr Wong had been advised that it had been based on general conduct and accordingly that it would have been impossible for him to meet the case against him. The question of the alleged dichotomy between past and present general conduct and past and present criminal conduct has been discussed above and rejected. Accordingly the submission fails.

National Interest

47 It is submitted that the learned primary Judge erred in holding that there was nothing in the material before the Court to show that the Minister was not entitled to reach the decision complained of. Reference is made particularly to para 11 of that material set out earlier in these reasons. It is said that the appellant could not fall within the national interest test because he was not a person who had committed serious crimes in another country. The submission is that on no view could the matters relied upon in para 11 satisfy the national interest test as formulated in that paragraph.

48 This submission likewise may be said, at least in part, to depend upon there being a dichotomy between general conduct and criminal conduct - a dichotomy which does not exist.

49 But even if there were such a dichotomy it is not so clear that para 11 actually alleges against him that he has committed a serious crime. The paragraph has two parts. In the first part the paragraph refers to the national interest requiring that Australia not be seen to provide a safe haven for people who have committed serious crimes elsewhere and seek to evade law enforcement activity. However it is far from clear that it is suggested that Mr Wong actually committed serious crimes, although he may have. All that is said of him is that he has a record of evading law enforcement activities. Just what the context of the evasion is, is not stated. The evasion could, for example, relate to action against others or it could relate to action against him.

50 Alternatively it is submitted that, as suggested by Kirby J in Patterson, national interest requires an emergency or some exceptional circumstances, before it may be invoked. What was said by Kirby J in Patterson was based upon what had been said by the Minister in his Second Reading Speech to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 (Cth), which Bill introduced the present legislative scheme. In reference to s 501 and related sections the Minister said:

"From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community. These people may be threatening violence or some other act of destruction, or have a prior history of serious crime. In these emergency circumstances, the minister, again acting personally, should have the power to act without notice and have them taken into detention.
Once the visa is cancelled, the non-citizen will have a right to make a submission to the minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the minister that they pass the character test, they should be removed immediately..."

51 Kirby J in Patterson at 504, [336] made the following comment which it may be assumed picked up the reference to emergency circumstances in the Minister's speech:

"The expression `the national interest' is different from `the public interest'. In the Migration Act, it takes colour from the emergency circumstances in which it applies and the peremptory procedures which then, exceptionally, govern the case."
52 First it may be noted that no other judgment of the members of the Court in Patterson suggested any limitation of national interest to cases of emergency or for that matter exceptional circumstances. Second, a Full Court of this Court (French, O'Loughlin and Whitlam JJ) in Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220 were of the view that Kirby J had, in confining the power to emergency of exceptional circumstances, raised the bar of national interest too high when the language of the statute was considered. Their Honours said, referring to what had been said by Gummow and Hayne JJ, with whom Gleeson CJ had agreed, at [89]:

"The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained `reasonably'..."
53 Further it is not really clear that Kirby J in the passage cited is suggesting that there is to be implied in the legislation as a requirement, some emergency or certainly some exceptional circumstance. But whether or not that it is the case, it is clear when one reads the Second Reading Speech relied upon that all the Minister is doing is giving an example of the circumstances in which action may be taken under s 501. There is nothing in the legislation itself, or for that matter in the Minister's speech, to suggest that action under the section is limited to a case where there is an emergency situation or for that matter where there are exceptional circumstances, although it is clear that the action must be in the national interest. The present is not a case for the Court to attempt to define the circumstances where the Minister's action will be in the national interest, even if that were possible. However, there is nothing in the material before the Court which would suggest that the Minister in any way erred in law in the conclusion he reached.

54 It follows that it has not been shown that any jurisdictional error of a kind entitling Mr Wong to relief under s 39B of the Judiciary Act has been made out and that the appeal must accordingly be dismissed. It is unnecessary therefore, for the Court to consider whether the provisions of s 474 of the Act precludes the Court from entertaining Mr Wong's claim for relief. We would say, however, that even if jurisdictional error had been established the claim would fail having regard to the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. Counsel did not seek to develop a written submission that that case or the related cases decided at the same time required the conclusion that the present case was such that it fell within the exceptions to what is often referred to as the principle in R v Hickman; Ex parte Fox and Clinton (1945) 79 CLR 498 or, otherwise that the decision was one that contravened an inviolable limitation or restraint upon the powers, duties or functions of the decision maker so as to fall outside the provisions of s 474 of the Act.

55 The appeal should therefore be dismissed, with costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Hill & Hely.


Associate:

Dated: 20 December 2002

Counsel for the Appellant: J McCarthy QC with R Wilson





Solicitor for the Appellant: Peter W H Leung





Counsel for the Respondent: J Basten QC with T Reilly





Solicitor for the Respondent: Blake Dawson Waldron





Date of Hearing: 12 December 2002





Date of Judgment: 20 December 2002

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