FEDERAL COURT OF AUSTRALIA Wu v Minister for Immigration and Multicultural Affairs [2001] FCA 89 MIGRATION – Minister's refusal of Business Visa on ground that Minister suspects applicant does not pass the "character test" defined in subs 501(6) of Migration Act 1958 (Cth) and that Minister satisfied refusal is in national interest – power to refuse to grant visa on that ground conferred on Minister by subs 501(3) of Act – Minister relying on "protected information" identified in subs 503A of Act – applicant applies under s 476 of Act for review of Minister's refusal decision – applicant not having access to the protected information on which Minister relied – applicant failing to discharge burden of establishing ground of review Migration Act 1958 (Cth) ss 501(3), 503A YONG CHAO WU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1289 OF 2000 LINDGREN, NORTH, MANSFIELD JJ 16 FEBRUARY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1289 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: YONG CHAO WU APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN, NORTH, MANSFIELD JJ DATE OF ORDER: 16 FEBRUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal 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 1289 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: YONG CHAO WU APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN, NORTH, MANSFIELD JJ DATE: 16 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: Facts and legislation 1 The appellant ("Mr Wu") applied for a Business Visa subclass 457. According to the application, he was born in the People's Republic of China and is a citizen of that country. On 1 August 2000 the respondent ("the Minister") decided to refuse to grant the visa. The following day, 2 August 2000, Nelly Siegmund, Assistant Secretary of the Border Protection Branch of the Department of Immigration and Multicultural Affairs, wrote to Mr Wu advising him of the refusal. 2 In refusing to grant the visa, the Minister exercised a power conferred on him by subs 501(3) of the Migration Act 1958 (Cth) ("the Act"). That subsection is as follows: "The Minister may: (a) refuse to grant a visa to a person; or (b) Ľ 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." The "character test" referred to in par (c) above is defined in subs 501(6). 3 Because the Minister's decision was a decision made under the Act relating to a visa, it was a "judicially-reviewable" decision: s 475(1)(c) of the Act. Section 476 of the Act provides that application may be made to the Court for review of a judicially reviewable decision on any one or more of certain specified grounds. On 31 August 2000 Mr Wu filed an application in this Court for review of the Minister's refusal to grant the visa. He relied on the grounds provided in pars (e) and (g) of subs 476(1). Those grounds are as follows: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;" "(g) that there was no evidence or other material to justify the making of the decision." Subsection 476(4) is related to par 476(1)(g), and is as follows: "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 4 The evidence before the primary Judge showed that when the Minister decided to refuse to grant the visa, there was before him a five-page document headed "Decision Record – Refusal to Grant a Visa under section 501(3) of the Migration Act 1958" ("the Decision Record"). Indeed, on 1 August 2000 the Minister recorded, by signing in a space provided for his signature on the last page of the Decision Record, his decision to refuse to grant the visa. 5 The Decision Record referred in several places to "Attachments 1-9" ("Attachments 1-9"). Those Attachments have never been seen by Mr Wu, his legal advisers, the primary Judge or the members of this bench, because the Minister contends that they contain "protected information" within s 503A of the Act. Subsections (1), (2) and (3) of s 503A are as follows: "(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, Ľ: (a) the officer must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, Ľ; and (b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, Ľ. (2) If: (a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, Ľ; or (b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b); then: (c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and (d) if the information was communicated to an authorised migration officer – the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person. (3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated." 6 It is not established that the Minister made a relevant declaration of the kind referred to in subs 503A(3). The expressions "authorised migration officer" and "gazetted agency" are defined in subs 503A(9) of the Act as follows: "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." "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." Decision of the primary Judge 7 Before the primary Judge, as before us, Mr Wu relied upon the proposition that where a statute requires that there be "reasonable grounds" for a state of mind, including "suspicion", it requires the existence of facts sufficient to induce that state of mind in a reasonable person: see the dissenting speech of Lord Atkin in Liversidge v Anderson [1942] AC 206 and George v Rockett (1990) 170 CLR 104 at 112. The learned primary Judge observed that the difficulty confronting Mr Wu was that the material on which the Minister had based his decision was, by the operation of s 503A, unavailable to Mr Wu, and "at least prima facie, unavailable to the Court". His Honour said the fact remained that Mr Wu had not discharged the burden of making good the grounds on which he relied to attack the Minister's refusal. Accordingly, his Honour dismissed Mr Wu's application. Grounds of appeal 8 Mr Wu relies on the following grounds of appeal: "1. His Honour erred in allowing into evidence the affidavit of Nelly Siegmund sworn 21st November 2000 in its entirety over objection or those portions which were allowed over objection. 2. On the evidence available, His Honour erred in finding 'The evidence in these proceedings indicates the Minister formed the reasonable suspicion by reference to information that was protected information by operation of s 503A of the Act'. 3. His Honour erred in his interpretation of the relationship between section 476(1)(g) and section 503A of the Migration Act 1958 as amended. 4. His Honour erred in the principles of administrative law to be applied as reflected in the observations of the High Court in George v Rockett (1990) 170 CLR 104. 5. His Honour erred in failing to find that the Minister's finding that the Appellant did not pass the character test amounted to an error of law within the meaning of section 476(1)(e)." We will address the first and second grounds of appeal together and the third, fourth and fifth grounds together. The first and second grounds of appeal 9 Before his Honour, counsel for the Minister read an affidavit of Ms Siegmund sworn 21 November 2000 to which were attached what purported to be copies of the Decision Record and a notice under s 503A of the Act published in the Commonwealth of Australia Gazette No GN23 on 9 June 1999. The notice purported to be made by the Minister acting under subs 503A(9) of the Act. By the operative provision of the notice, the Minister did: "SPECIFY each body, agency or organisation that is responsible, in a Country or Territory listed in Schedule 1 of this Instrument, for law enforcement, criminal intelligence, criminal investigation or security intelligence in that Country or Territory listed in Schedule 1." The Schedule contained a list of countries including the People's Republic of China. 10 Before his Honour, Ms Siegmund's affidavit, referred to in the first ground of appeal, was objected to in its entirety, and particular objections were taken to various parts of it. His Honour disallowed the objection to the whole and many of the particular objections. The purpose of the affidavit was to establish that the information contained in Attachments 1-9 was "protected" under s 503A of the Act. In order to do so, the affidavit would have had to prove by testimony in admissible form: · that the information in Attachments 1-9 had been communicated by a gazetted agency; · that it had been communicated by that agency to a person who was an authorised migration officer; · that the information was so communicated on condition that it be treated as confidential; · that the information was relevant to the exercise of the Minister's power under, relevantly, s 501. 11 We do not find it necessary to determine the first and second grounds of appeal. If it be assumed that the content of Ms Siegmund's affidavit and its annexures were wrongly admitted into evidence, the result would have been no different because the Decision Record was otherwise in evidence before his Honour. The references in the Decision Record to Attachments 1-9 make it clear that the information on which the Minister was invited to rely for the purpose of forming a reasonable suspicion that Mr Wu did not pass the character test, and being satisfied that a refusal of the visa was in the national interest, was contained in those Attachments. We infer that Attachments 1-9 were in fact attached to the Decision Record and that the Minister relied on whatever information was contained in them in forming a suspicion that Mr Wu did not pass the character test and in satisfying himself that a refusal of the visa was in the national interest. 12 The Minister was not called upon to establish that the information was protected information: Mr Wu had not resorted to such coercive measures as the issue of a subpoena, the giving of a notice to produce or the process of discovery, which the Minister would have borne the onus of resisting. The Minister was called upon to respond to such a measure in Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1995) 39 ALD 328 and Choi v Minister for Immigration and Multicultural Affairs (unreported, 25 August 1998, Lindgren J), which illustrate the position which existed before the present régime, including s 503A, was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998. In those cases, the Minister was required to establish (and did successfully establish) claims of public interest immunity in response to motions to compel him to produce documents for inspection. Section 503A was introduced to strengthen the Minister's ability to keep information confidential. In the Parliamentary Debates on the Bill for the amending Act just mentioned, the following passage appeared in the second reading speech in the Senate and the House of Representatives (Parl Debs, Senate, 11 November 1998 at 60; HR, 2 December 1998 at 1231): "Protection of criminal intelligence Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders. At present, it is difficult for the department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it. This bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia. This was highlighted in my most recent discussions with officials of international law enforcement agencies." 13 Absent Ms Siegmund's affidavit, it may be, as the second ground of appeal asserts, that his Honour's description of the information in Attachments 1-9 as information that was protected by the operation of s 503A of the Act could not have been sustained. But this description of the information was not essential to his Honour's reasoning. The third, fourth and fifth grounds of appeal 14 We turn now to the third, fourth and fifth grounds of appeal. Having regard to the fact that Attachments 1-9 were before the Minister, Mr Wu did not, and could not, establish that the Minister erred in law or that there was no evidence or other material to justify the making of the decision to refuse to grant the visa. 15 Ms Winfield of counsel, who said all that could be said to support the grounds of appeal in the difficult situation in which her client is placed, submitted that the Minister cannot have a reasonable suspicion that a person does not pass the character test unless the Minister makes the grounds of his suspicion available to be tested. We do not agree. The Minister has or does not have reasonable grounds for his suspicion as a matter of objective fact at the time when the Minister decides to refuse to grant the visa, and any question of scrutiny and proof of those grounds is a distinct question which arises later. 16 In the course of the hearing, in response to a question raised by a member of the Court, there was some debate about the effect of the existence of the Minister's power under subs 503A(3) (set out earlier). It would have been possible for the Minister, after consulting with the gazetted agency from which the information originated, to declare that subss (1) and (2) of s 503A did not prevent the disclosure of the information contained in Attachments 1-9 to the Court, or to both the Court and Mr Wu's legal representatives, subject to protective conditions. The question raised was whether, since Mr Wu had placed before the Minister evidence of his good character and the power given by subs 503A(3) would have allowed the Minister to ensure that the Court had before it the information in Attachments 1-9, an evidentiary burden passed to the Minister to overcome the effect of Mr Wu's evidence of good character, so that in the absence of either the information or any explanation as to why the Minister had not followed the course described, it would be open to the Court to conclude that the "no evidence" ground provided by subs 476(1)(g) of the Act was made out. Counsel for the Minister referred to difficulties with this course of reasoning, and since it did not form part of Mr Wu's submissions, we refrain from expressing any view in relation to it. Conclusion 17 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren, North, Mansfield. Associate: Dated: 16 February 2001 Counsel for the Appellant: Ms R N Winfield Solicitor for the Appellant: W Chan & Co Counsel for the Respondent: Messrs N J Williams and J H Momsen Solicitor for the Respondent: The Australian Government Solicitor Date of Hearing: 12 February 2001 Date of Judgment: 16 February 2001