Wong v Minister for Immigration & Multicultural &Indigenous Affairs [2002] FCA 1436

FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration & Multicultural &Indigenous Affairs [2002] FCA 1436 IMMIGRATION – Decision by Minister not to revoke his earlier cancellation of the applicant's student visa on the ground that he was not of good character – Whether there is material sufficient to ground an inference that the Minister was actuated by the extraneous purpose of making the applicant available to interrogation by law enforcement officers in China – Discussion about significance of various statements in official memoranda and emails – Significance of delay in making a decision – Whether Minister took into account the applicant's good conduct in Australia

Migration Act 1958 (Cth) ss 501, 501C TAI SHING WONG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 654 of 2002 WILCOX J SYDNEY 6 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N654 of 2002

BETWEEN: TAI SHING WONG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 6 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent. 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 N654 of 2002

BETWEEN: TAI SHING WONG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 6 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 This matter is one of some importance to the applicant. However, I have had the benefit of knowing the facts of the case for some time, subject only to some additional material included in an affidavit read for the first time today. I have also had the benefit of reading outlines of submissions prepared by counsel for each of the parties. Against this background, I have reached a clear view that the application must fail. As the applicant is in detention, I think it preferable to give judgment immediately; rather than to reserve, in order to polish my expression of reasons. 2 The background to the matter was set out in a judgment I delivered on 18 October 2002, of the same name, in relation to an application concerning interrogatories proposed to be administered to the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"): see [2002] FCA 1271. 3 In that judgment I expressed the view that there was sufficient material to require me to reject a submission that the application for interrogatories offended the principle that the Court would not allow "fishing". I noted certain recent authorities in relation to "fishing" and thought the case was covered by the decision of the Full Court in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corporation [1997] FCA 578. I also thought the case satisfied the older test enunciated by Brennan J (with whom Bowen CJ agreed) in W. A. Pines Pty Limited v Bannerman (1980) 41 FLR 169 at 181. At para 29 of my reasons, I referred to the documentary evidence which was then before me. In para 30, I noted that: "The evidence does not indicate the nature of the conduct referred to in the s 503A information." But I made the comment that: "… the information presumably did not refer to proven criminal conduct by Mr Wong. Yet it must have suggested serious delinquency by Mr Wong." I gave reasons for that view. 4 In para 31 I expressed the opinion that the "available snippets of information", and this reasoning, provided some support for the theory that: "… one of more Chinese, or Hong Kong, agencies provided to the Department information suggesting that Mr Wong may have been involved in conduct in their jurisdiction that is of interest to it, or them, in relation to law enforcement, criminal intelligence or investigation or security intelligence." 5 I said that: "If so, it would be rational to assume that this authority, or these authorities, would wish to interrogate him if he were returned to their jurisdiction; and that this would be apparent to the Minister." 6 I also said: "It is another question whether making Mr Wong available for interrogation was a purpose of the Minister, as distinct from an understood consequence of any decision to refuse revocation. It may be difficult for Mr Wong to make out that element at trial." 7 I commented however that: "… the present question is only whether there is a ground for suspicion." I thought there was at least a suspicion. 8 The Minister sought leave to appeal against my decision. Leave was granted by a Full Court, consisting of Hill, Moore and Branson JJ, and the appeal was allowed: see Minister for Immigration and Multicultural and Indigenous Affairs v Wong (2002) FCAFC 327. The Full Court took the view that the case did not meet the test either in Canwest or in W.A. Pines. At para 36 the Full Court said: "His Honour appears to have been of the opinion that there was, at least something more than mere assertion in the present case. Unfortunately, and this is not a criticism of his Honour who was required to deliver judgment urgently having regard to the tight time frames applicable, his Honour did not indicate what the available 'snippets of information' were that he relied upon." 9 This comment surprised me. I thought I clearly set out the "snippets of information" in para 29 of my reasons. However, that is immaterial. What is material is that the Full Court thought the "snippets" did not take the case beyond one of bare assertion. Indeed, at para 42 the Full Court attributed to Mr Wilson, counsel for Mr Wong, a concession that: "… the application to administer interrogatories rested entirely upon the allegation of ulterior purpose which the applicant made and had otherwise, no foundation." Of course, if that was true, and, indeed, the case rested on nothing more than assertion, then I would respectfully agree with the Full Court. 10 I mention these matters because the evidence upon which the applicant relies for his primary ground of attack upon the subject decision of the Minister is substantially the same material as was considered by myself on the previous occasion and, thereafter, by the Full Court. The qualification on this statement is that an additional affidavit has been read. It is dated 5 October 2002 but was in fact made on 5 November 2002. 11 Like the earlier affidavits, this affidavit was made by Peter Leung, the solicitor for Mr Wong. It annexes various documents that were obtained from official sources pursuant to the Freedom of Information Act 1982. As Mr Wilson pointed out, the documents indicate there was some interest in Mr Wong, by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"), as early as July 2000. 12 The documents contain an email dated 13 July 2000 from Peter Coyne, who was apparently an officer of the Department or, at least, an officer of the Australian Public Service located in the Australian Embassy in Beijing. Mr Coyne sought information of "possible details of grant of 560 at your office on 12/11/99 to Mr WONG Tai shing (sic)". This was apparently a reference to the grant of the relevant student visa. 13 There was a response the following day from a person named Malia Betts, who was apparently an officer of the Department in Australia. She set out details of the visa that had been granted including the study course that Mr Wong was to undertake in Australia. 14 The next annexed document is dated 29 August 2000. It consists of a memorandum from an officer of the "international branch" of the Attorney-General's Department, apparently in Canberra, to an officer of the Department. The document seeks information about Mr Wong's present status, whereabouts, and the Department's intentions. 15 There is a handwritten note on this document addressed to a person called "Natalie", whose position is not revealed, requesting her to check with a person named "Andrew Richards" as to whether Mr Wong is "on his list of PRC crims". The word "yes" has been written underneath this. However, I cannot place any weight on this note. I do not know who Mr Richards might be, and whether or not the information is correct or, indeed, what specifically the answer means. 16 No response to the memorandum is contained in the annexed documents. 17 There are later emails extending over a lengthy period of time. They include an email, on which Mr Wilson places some emphasis, from a person named Roger Neilson, who is apparently an officer of the Department of Foreign Affairs and Trade; I assume in Beijing. This was directed to an officer of the Department who was apparently located in Canberra. Mr Neilson's email is dated 8 February 2002, and is in response to an email from the Department, informing him that Mr Wong had been detained. 18 Mr Neilson's email reads: "Good news and very timely (see following). In fact, MPS [apparently the Chinese 'Ministry of Public Security'] are coming in an hour or so to see me with AFP rep. -- a new and 'urgent' case. I was speaking to them at a function last night and we had confirmed 19 Feb for our next meeting so it will be interesting to see what has prompted the urgency." 19 Once again, it is not clear what this is all about, except it is clear that Mr Neilson welcomed the fact that Mr Wong had been detained, and apparently intended to pass on this information to MPS. 20 The above information provides further support for the conclusion I expressed in my earlier judgment that there was reason to believe the Chinese government, or some agency of it, is interested in Mr Wong's whereabouts and would wish to interrogate him if he were returned to China. Whether or not he would be charged with a criminal offence can only be a matter of speculation. 21 The difficulty faced by Mr Wong, as it seems to me, is in making the additional step, namely, it should be inferred that the Minister was actuated, in whole or in part, by the extraneous purpose of making Mr Wong available to the Chinese authorities. It is one thing for the Minister to be aware that, if he takes a particular decision under the Migration Act 1958, the relevant person will be required to leave the country and, in all probability, returned to his country of nationality, and, there, be subject to interrogation. It is another thing to say that, in exercising a power under the Act, the Minister had a purpose of ensuring this would happen. 22 Whatever grounds there might be for believing the return of Mr Wong to China would be welcome to the Chinese authorities, and that officers of the Department knew this, there is no evidence which goes to the Minister's purpose. 23 Mr Wilson pointed to some particular circumstances, but they seem to me insufficient to make his case. 24 Mr Wilson noted the considerable delay that occurred whilst Mr Wong's application for a renewal of his student visa was under consideration. It is not clear to me why there was such a long delay. It appears that, as long ago as February 2001, the Minister was supplied by the Department with a minute referring to Mr Wong. He was also supplied with information that was said to be protected under s 503A of the Act. He was asked to issue a direction as to whether he wished to receive a formal submission under either s 501(2) or s 501(3) of the Act. 25 The notes on the copy of the minute that are contained in the evidence are somewhat ambiguous. I do not know whether the Minister said he did not wish to receive a submission, but subsequently changed his mind, or whether, as I rather suspect, the note should be interpreted as requesting a submission. Nor is it apparent to me why there was a delay of, apparently, some 11 months between that memorandum and the time when the Minister's decision was made. Whatever the reason, it does not seem to support an inference that the Minister was actuated by the purpose of assisting the Chinese authorities in a form of disguised extradition. Indeed, one might think the delay tends to suggest the Minister was not rushing to assist the Chinese authorities. 26 I do not wish to go so far as to say the delay is antagonistic to the applicant's case, but I think it is not helpful. 27 The second matter was the fact that the Minister chose to use an alternative, namely s 501(3) of the Act, which would enable him to make a decision and have the applicant arrested, before the applicant was aware of the possibility of a decision being made. The argument is that taking him into detention supports an inference that the Minister was actuated by a desire to assist the Chinese authorities. 28 I cannot accept that submission. It is a feature of the administration of Australia's immigration laws that many people, who have the status of being an "unlawful non-citizen", are detained, sometimes for considerable periods. Some of those people arrive in Australia without a visa and are immediately put into detention. Others arrive in Australia lawfully, but become unlawful non-citizens because of the expiration or cancellation of their visa. Sometimes they are detained. The rationale of detention, as I understand it, is that this ensures the person will not disappear into the community and thereby become unavailable for deportation. 29 Mr Wilson referred me to an email from an officer of the Department, Craig Riviere, dated 16 July 2001. This memorandum was sent to two other officers, with copies to three other officers. It was headed "Request for advice on sections 501((2) and 192". It raised the possibility of the Minister taking action under s 501(2) of the Act, this being done in conjunction with Mr Wong being taken into detention and detained for four hours pursuant to s 192 of the Act. Apparently the idea was that, in this way, the obligation of providing natural justice could be discharged whilst Mr Wong remained in detention. The theory was that the whole operation could be completed in four hours. I pass by the question whether such a procedure could possibly have complied with the requirement to give natural justice. What is significant, in Mr Wilson's submission, is the following paragraph: "It was our preference to take action in this way so that we may afford the applicant natural justice. BUT avoid the likelihood that he will go underground while the Minister is reaching a decision. This applicant is a high flight risk who we expect to abscond if presented with a Notice of Intention to Cancel." 30 I do not see how this paragraph advances the applicant's case. Indeed, it seems to point in the opposite direction. It indicates a reason for taking the applicant into detention which has nothing to do with ensuring he is delivered to the Chinese authorities for interrogation, but has everything to do with ensuring that he will not "go underground" and thus become unavailable for deportation. 31 When I made this comment to Mr Wilson, he suggested the stated reason was not the true reason. If this was so, Mr Riviere would have been in the position of misleading five of his colleagues. I see no reason to attribute that conduct to him. 32 The next matter that was put was that there was no reference to Mr Wong's character in the submission made to the Minister in relation to the revocation decision. This same submission bears on another point, which I will come to in a moment. 33 The statement is true, in the sense that the minute dated 9 May 2002 (which dealt with the decision the Minister was required to make in regard to revocation) made no specific reference to the Minister having to be satisfied about Mr Wong's lack of good character. However, the minute contains references to s 501C(4) of the Act, both in the heading and in its statement of purpose. The statement of purpose was in this form: "To seek your decision on the possible revocation pursuant to section 501C(4) of the Migration Act 1958 (the Act), of your earlier decision to refuse to grant a subclass 560 student visa under section 501(3) of the Act." 34 The minute did not set out the terms of either of the subsections referred to in the purpose paragraph. However, the Minister must be assumed to be conversant with the legislation he has to administer, or at least to be willing to look at a copy of the Act whenever he is not. 35 Section 501C(4) provides: "(4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the person satisfies the Minister that the person passes the character test (as defined by section 501)." It will be seen this subsection clearly indicates that the matter for consideration by the Minister is whether or not he is satisfied that the person passes the character test. The subsection refers to the character test described in s 501(6). 36 If the Minister was conversant with s 501C(4), he must have understood that the purpose of the minute was to invite him to decide whether he was satisfied Mr Wong passed the character test. 37 Section 501(3), which was also referred to in the purpose paragraph, deals specifically with the issue of the whether the person passes the character test. 38 I do not think the absence of the words "character test" in the minute can be taken as supporting the inference that the Minister had an ulterior purpose. 39 In summary, whatever inference may be available about knowledge of Departmental officers, which may have been passed on to the Minister, about the interest of the Chinese authorities, I do not think there is material that would ground the inference that this was a purpose of the Minister in making the revocation decision. 40 The second ground upon which it is said that the Minister's decision is invalid is that he failed to take into account a relevant circumstance, namely the applicant's character. This submission had two aspects. First, it was suggested the Minister failed to consider that the applicant was not shown to have misbehaved, in any way, whilst in Australia. Second, it was said that there was no reference to character at all. 41 I think the second aspect is met by what I have said concerning the form of the minute, with its reference to s 501C(4) and s 501(3). 42 As to the absence of any bad conduct in Australia, this matter can be said to have been taken into account. There was no allegation made against Mr Wong in regard to anything he had done in Australia. So there was nothing in his Australian conduct to lead to a finding that he was not of good character. The point was made in one of Mr Leung's submissions to the Minister. Mr Leung said the inference from the previous decision must be that the alleged bad behaviour was in another country, not in Australia. The Minister was furnished with a summary which referred to that point. He was also supplied with the submissions themselves. 43 Mr Wilson noted that part of the material, namely the minute of 9 May 2002, was marked. He suggested the markings might have been made by the Minister. The annexures were not marked. Mr Wilson submitted I should therefore infer that the Minister did not read the annexures. This would be speculation rather than inference. I know nothing about the circumstances of the marking or the identity of the person by whom the markings were made. The minute might have been marked by somebody else, before or after the Minister saw the document. 44 A third matter was put rather tentatively. Indeed at one stage it was withdrawn, but then re-put. The submission is that officers of the Department should have advised the Minister that the concept of "national interest", which is referred to in s 501(3) of the Act, is limited to situations of urgency or other emergency. This matter was referred to by some members of the High Court of Australia in Re Patterson; Ex parte Taylor [2001] HCA 51. 45 The evidentiary material shows some officers of the Department gave consideration to the meaning of "national interest" in s 501(3). So far as the record reveals, they gave no advice to the Minister in regard to that matter. This might have been because the officers felt there was no problem, from their point of view, in the approach taken by members of the High Court. There may be some other reason why advice was not given. Perhaps advice was given but does not appear in the record. 46 It seems to me this is all irrelevant to the present application. If the Minister misunderstood the meaning of the words "the national interest" in s 501(3), that may go the validity of his decision, in January 2002, to refuse the application for a new student visa. The validity of that decision is under appeal to a Full Court of this Court. I say nothing about the January decision. 47 I do not think the issue arises in the present proceeding. I have already set out the terms of s 501C(4), the subsection with which I am concerned. It will be noted it poses only one issue for the Minister, namely whether he is satisfied that the person passes the character test. The Minister was not bound to reconsider the issue of national interest, in considering the representations made by the applicant's solicitor and forming an opinion as to whether or not he was satisfied Mr Wong passed the character test. 48 No doubt it is correct, as Mr Wilson submits, that it would be open to the Minister, if persuaded he had erred in law in making his initial decision, to rescind that decision. This is a course that can be taken by any statutory decision maker, if persuaded his or her original decision is bad in law. It is not necessary for such a person to wait until a court has so held. It is consistent with that view of the matter to say that, if legal advice had been tendered to the Minister along the lines that his original decision was bad in law because he had misunderstood the notion of national interest, he could have made a decision to rescind. But that would not have been a decision under s 501C(4). The Minister's failure to make such a decision is not a matter that can arise in a challenge to the manner of exercise of the statutory power provided by s 501C(4). 49 If there is anything in this point, and I express no view one way or the other about that, it may be open to the applicant to raise it in the Full Court. If he did so successfully, the Minister's original refusal decision would be set aside and the validity of the revocation decision would become moot. 50 It is important for me to emphasise that I have only one issue before me, namely the validity of the decision under s 501C(4). I do not see any legal error in relation to that decision. This means I have no alternative other than to dismiss the proceeding. The order that I make is that the application be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.