FEDERAL COURT OF AUSTRALIA WAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 93 MIGRATION – deportation – whether respondent's decision to deport in error of law – whether respondent's decision beyond jurisdiction as a privative clause – whether service of non-disclosable document and subsequent retrieval from applicant gave rise to issues of procedural irregularity or natural justice constituting jurisdictional error Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c) Migration Act 1958 (Cth) ss 5, 359A, 424A, 424(3), 474(2), 475A, 476, 499(1), 500(6F)(c) and (d), 501, 501(2), 501(6), 501(7)(c), 501(7)(d), 501(G) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Federal Court Rules O 80, O 15 r 14, O 33 r 11 R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 followed Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 followed Alister v R (1984) 154 CLR 404 referred to National Bank v Saunders (1988) 12 NSWLR 623 referred to Young v Quin (1985) 4 FCR 483 referred to Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 referred to Special Minister of State v Quin (1984) 3 FCR 293 followed Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 followed Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 followed McMullen v Commissioner for Superannuation (1985) 61 ALR 189 followed Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 approved Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427 followed Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 followed Kabwand Pty Ltd v National Australia Bank Ltd (1987) 81 ALR 721 followed Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485 referred to Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 followed British Coal Corporation v Dennis Rye Pty Ltd [1988] 1 WLR 1113 followed WAFG OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W70 of 2002 RD NICHOLSON J 20 FEBRUARY 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W70 of 2002 BETWEEN: WAFG OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 20 FEBRUARY 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application for review 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 WESTERN AUSTRALIA DISTRICT REGISTRY W70 of 2002 BETWEEN: WAFG OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 20 FEBRUARY 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant has brought what is accepted by the respondent as being an application for an order for review in respect of a decision made by the respondent on 13 February 2002. The decision was to cancel the applicant's visa, relying upon s 501 of the Migration Act 1958 (Cth) ("the Act"). 2 The application contained no details of claim or grounds other than the endorsement "unjust deportation". Programming directions were made on 18 April 2002 to the effect that the applicant file and serve any amended application and a statement of particulars. These have not resulted in the filing of any further application. Directions made to refer the applicant for legal assistance pursuant to O 80 of the Federal Court Rules also failed to yield any response from counsel on the pro bono list. 3 In support of the application the applicant filed an affidavit in which he stated that his proposed deportation was unjust due to concerns which he had concerning his safety on his return to Vietnam in circumstances where he claimed he had previously deserted from the Communist Army. Respondent's decision 4 The respondent's decision read as follows: "I reasonably suspect that [the applicant] does not pass the character test and [the applicant] has not satisfied me that he passes the character test and I have decided to exercise my discretion under subsection 501(2) of the Act to cancel the visa, so I hereby cancel the visa." 5 This decision was prefaced by a statement to the following effect: "I have considered all relevant matters including (1) an assessment of the Character Test as defined by section 501(6) of the Migration Act 1958, (2) my Direction under section 499 of that Act and [the applicant's] comments …" Statutory provisions 6 Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. This subsection appears under a heading indicating that such a decision of the Minister is one to which "natural justice applies". 7 Section 501(6) providing for the character test reads as follows: "(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; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test." 8 For the purposes of the character test the person has a substantial criminal record where the person has been sentenced to a term of imprisonment of twelve months or more or where the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more: s 501(7)(c) and (d). Background circumstances 9 The "relevant matters" referred to in the decision of the respondent were matters which were put before him in a document for his consideration and to which his decision is annexed. They disclose the following circumstances concerning the applicant. 10 The applicant was born in Vietnam on 15 June 1958. He entered Australia on 18 May 1991 on a BF transitional (permanent) visa. 11 With reference to the provisions in s 501(7)(c) it was brought to the respondent's attention that the applicant had been sentenced in respect of the following offences: (1) On 8 May 1996 by the Perth District Court for five charges of unlawful wounding, with a sentence of imprisonment for fifteen months concurrent on each charge. (2) On 5 March 1999 by the Perth District Court for one charge of burglary and an aggravated offence leading to imprisonment for eighteen months. (3) On 13 February 2001 a sentence by the Perth District Court for one charge of burglary and commission of an aggravated offence with a sentence of imprisonment for twelve months. 12 The document before the Minister also recited that the applicant had been notified on 17 October 2000 of the intention to consider cancellation of his visa pursuant to s 501 of the Act. He was invited to submit any comment. He responded by letter received on 1 November 2000. He was renotified on 12 October 2001 and again on 22 October 2001 but made no further responses. His response was in the relevant materials before the respondent at the time he made his decision. 13 The respondent provided the applicant with a copy of a document known as Direction 21 which was made under s 499(1) of the Act on 23 August 2001. The document prepared for the respondent referred to par 2.6 of the Direction and noted that the applicant's above offences were very serious offences for the purposes of the paragraph. Reference was made to par 2.7 which directed attention to his wider criminal record (that is, offences which may not themselves qualify in terms of s 501(7)(c) of the Act). The complete record of the applicant showed he had convictions for the following offences: Court Date Charge Counts Sentence 01/11/1995 Excess 0.05% 1 $150 07/02/1996 Excess 0.08% 1 MDL disq 4 mths $400 DC 08/05/1996 Unlawful Wounding 5 1. 15 mths imp 2-5. 15 mths imp conc ea chg PS 10/02/1998 Disorderly Conduct 1 $300 08/07/1998 No MDL – under fines suspension 1 MDL disq 9 mths cum $400 08/07/1998 Unlicensed Vehicle 1 $75 DC 05/03/1999 Burglary & Commit offence Agg (Habitat) 1 18 mths imp 16/07/1999 Dangerous Driving – 1st Offence 1 $500 16/07/1999 No MDL 1 Class $100 13/12/1999 No MDL 1 4 mths imp susp sent 15 mths MDL disq 9 mths cum DC 13/02/2001 Burglary & Commit offence Agg (Habitat) 1 12 mths imp 14 The document also referred to particulars in the sentencing remarks of the sentencing judges in relation to these offences. The submission of the document was that it was open to the respondent to conclude from the applicant's criminal history that his conduct against the community was serious. 15 The document next turned to the issue of whether there was a likelihood that the conduct may be repeated. Reference was made to information that the applicant was alleged to be using illicit drugs. It was recited that the substance of these allegations were put to him on 8 November 1999. He denied using or having the means to procure such drugs. Reference was made to information received from the Ministry of Justice that the applicant tested positive for opiates, codeine, morphine and benzodiazepines on 8 November 1999. This information was said to be non-disclosable under s 501(g) of the Act and to be contained in annexure A to the report. It was submitted to the respondent in the document that he should find the applicant at a high risk of recidivism. 16 In relation to general deterrence it was submitted to the respondent that as the applicant had committed the offences of aggravated burglary and unlawful wounding it was open to the respondent to find that cancellation of his visa would serve as a deterrent factor against others committing similar offences. 17 In relation to the expectations of the Australian community, it was stated in the document that the Australian community expects non-citizens to obey Australian laws while in Australia. Consequently, it was said to be open to the respondent to find that the character concerns or offences were such that the Australian community could expect the applicant should be removed from Australia. 18 Other considerations taken into account by the document were that the applicant had made no claims regarding the extent of disruption to his family, business and other ties to the Australian community in his submission to the Department. However, at interview he had stated his girlfriend would suffer if he were deported. He claimed to be in a long-standing de facto relationship dating back to February 1995. There was no evidence that he had any outstanding legal matters or ongoing liabilities. 19 It was noted the applicant claimed to have fled Vietnam after deserting the army and had made his way to Thailand. He arrived in Australia from a refugee camp in Thailand. 20 Following his conviction for the offences committed on 1 May 1996 the applicant had been warned on 26 August 1996. 21 In relation to the refoulement obligations arising pursuant to the Refugees Convention, the applicant had stated in his submission that the fact he had deserted the Communist army (and taken weapons) would most likely result in his execution and he asked to be given the chance to continue his life in Australia as deportation "would be a death sentence". When given the opportunity to comment on the refoulement obligations he made no response. In his submission he stated he had lost his family to the war in Vietnam. 22 Attached to the document placed before the respondent for his decision was a list of "evidence or other material on which facts/background information is based". They include matters referred to above and specifically "annex J – non-disclosable information of relevance". Service of respondent's affidavit 23 On behalf of the respondent M/s Ling swore an affidavit on 28 March 2002. This was served on the applicant in his place of detention at the Perth Immigration Reception and Processing Centre. 24 On 11 April 2002 M/s Ling on behalf of the respondent wrote a letter to the applicant advising there was an error in that affidavit and that the Minister did not intend to rely upon it. She enclosed a fresh affidavit sworn on 11 April 2002 which annexed all the papers relevant to the application for review. She requested that the applicant return the previous affidavit to her office. To that end she advised that an immigration officer would collect the prior affidavit from him that day and return it to the office. She issued a letter of instruction to that end to the immigration officer at the Centre at which the applicant was detained. He complied with her request as did the applicant. 25 On the same date M/s Ling forwarded a facsimile communication on behalf of the respondent to the applicant acknowledging that he wished to identify the difference between the affidavit which he had returned and the affidavit sworn on 11 April 2002, and served on him that day. He was advised: "The only difference is that a non-disclosable document (annexure J – document numbered 2.10) was included in the old affidavit by mistake. This document has now been excluded from the fresh affidavit." He was advised that if he had any other concerns he could raise these with the judge at a directions hearing then set for 18 April 2002. 26 At the hearing of this matter the applicant tabled written submissions. In those he recounted the service of the affidavits as set out above. Relevantly, he stated: "11. The applicant does not understand the reasons why he was required to return a document previously filed and served. 12. … 13. The applicant requests a copy of the document, which is in the power of the Court. 14. Alternatively, the applicant would ask that the Court interpreter explain to him what happened with the documents, and why they were given to him and then taken back. 15. The applicant submits that in any event the contents of the document are no longer 'confidential' or 'non-disclosable', because they were given to the applicant and have lost their 'non-disclosable' quality, as documents over which claims of privilege may be made are inadvertently discovered cannot subsequently be the subject of a claim in privilege." 27 Paragraphs 11 and 14 were addressed by counsel for the respondent at the hearing. His response in respect of pars 11 was that there was no element of coercion in respect of the return of the first affidavit. The applicant had been requested to return it and did so. The reason why the request was made to him was that the document had been served on him in error. In response to par 14 the same response was give and reference made to the facsimile transmission of 11 April 2002 in which the explanation was set out. That was then interpreted to the applicant in Court. 28 In relation to pars 13 and 15 the respondent requested and was granted opportunity to prepare submissions in writing. Provision was made for the applicant to respond to those submissions. He has not done so. The effect of the submissions for the respondent is reflected in the reasoning below relating to the non-disclosure document. Whether Court has jurisdiction to review respondent's decision 29 Following the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the MLA(JR) Act") the decision by the respondent here in question is a "privative clause decision" as defined in s 474(2) introduced by that amending act. The present application was lodged after the commencement of Sch 1 to that amending act so that it is subject to the amendment. 30 The effect of the combination of ss 475A and 476 of the Act is to limit the jurisdiction of this Court to that conferred by s 39B of the Judiciary Act 1903 (Cth). That provision includes jurisdiction in relation to any matter arising under any laws made by the Parliament: s 39B(1A)(c). The validity of a decision made by the Minister under s 501 involves such a matter. 31 The effect of a privative clause was addressed by Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616 where he there said: "…where the legislature confers authority subject to limitations, and at the same time enacts [a privative clause] it becomes a question of interpretation of the whole legislative instrument whether transgression of its limits, so long as done bona fide and bearing on its face every appearance of an attempt to act in the course of its authority, shall not be regarded as invalid." 32 In this judgment Dixon J succinctly stated the three pre-conditions to the valid exercise of decision-making powers to which such a clause applies: (a) the decision-maker is required to have made "a bona fide attempt to exercise its power"; (b) the decision "relates to the subject matter of the legislation"; and (c) the decision "is reasonably capable of reference to the power given to" the decision-maker. 33 The operation of these principles in relation to s 474 of the Act have been clarified by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. It was there held that while s 474 is constitutionally valid, it does not protect from review decisions where jurisdictional error is relied upon as these will not be within the terms of its jurisdictional limitations. The Court therefore may exercise its jurisdiction to review such decision for jurisdictional error. Application of this law to the circumstances Absence of any error of law 34 The applicant's grounds are confined to an assertion of "unjust deportation". It became clear during the hearing that by this he sought to have this Court reconsider the merits of his case. As a non-lawyer and unrepresented person he was unable to identify any area of error of law in respect of the decision of the respondent under review. 35 He was particularly concerned that consideration be given to what might happen to him if he were returned to Vietnam. That is not a matter which this Court can consider in relation to the merits of the respondent's decision. However, it can be observed that it is apparent from the text of the relevant matters taken into account before the respondent when he made the decision that his attention was directed to precisely that matter. 36 There is, therefore, nothing in the circumstances before the Court, save arguably the circumstances of the service of the affidavit (to be considered below), which would reach the threshold of potentially activating its jurisdiction to which s 474 would be applicable. The first Hickman exception: bona fide attempt 37 There is no evidence upon which to provide any foundation for any argument that the respondent did not make a bona fide attempt to exercise his power. Furthermore, there is nothing in an examination of the record of his decision to give rise to any such consideration. The second and third Hickman exceptions 38 These are both objective tests. There is simply nothing upon which it could be claimed that the respondent's decision was unrelated to the subject matter of the Act or that it was not reasonably capable of being referred to the power under which it was made. In its terms it expressly is related to the subject matter of the Act and referrable to the power. Substantive requirements 39 There could be a question whether the effect of s 474 of the Act is in any sense different in relation to substantive criteria prescribed by the Act for grant or refusal of a visa. I agree with the submission for the respondent that in principle there is no basis for applying a different approach to the highly detailed provisions of the Act and Migration Regulations. In any event there is nothing before this Court to provide a foundation for any argument that substantive criteria have not been observed and applied even if the effect of s 474 were different. Procedural requirements 40 Procedural requirements may be derivative from the specific statutory requirements in the Act or may derive from the common law. It is necessary to consider in principle whether there has been failure to comply with a specific procedural requirement identified in the Act which may spell invalidity for the decision. The most commonly relied upon procedural provisions of the Act are those which in part codify, and in part extend, the likely content of any implied obligation of natural justice: see ss 359A and 424A of the Act. 41 Aside from the issue arising in relation to the substitution of the respondent's affidavit in service upon the applicant and the applicant's request for access to the non-disclosed document, there is no foundation for any alleged breach of a procedural requirement in the present instance. Non-disclosable document 42 In the course of the hearing it was submitted by the respondent that the Court should view the non-disclosable document (annexure J) and form its own opinion as to whether any issues concerning procedural or irregularity or lack of natural justice arise from the service of that document upon the applicant as part of the affidavit sworn on 28 March 2002 and the subsequent substitution of the affidavit of 11 April 2002. The Court decided not to inspect the document (if at all) before receiving and considering the submissions of the parties in relation to the applicant's questions arising in relation to pars 13 and 15 of his written submissions. 43 In relation to the question in par 13 of the applicant's submissions, it does not lie in the power of this Court to order production of annexure J to the applicant. The annexure is said to be a document falling within the character of "non-disclosable information" referred to in s 5 of the Act. That section reads: "5 non-disclosable information means information or matter: (a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would: (i) prejudice the security, defence or international relations of Australia; or (ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or (b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or (c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence; and includes any document containing, or any record of, such information or matter" 44 For the respondent agreement was expressed for the Court to examine annexure J pursuant to O 15 r 14 and O 33 r 11 of the Federal Court Rules to satisfy itself of its character: Alister v R (1984) 154 CLR 404 at 414 – 416; National Bank v Saunders (1988) 12 NSWLR 623 at 628 – 629; Young v Quin (1985) 4 FCR 483 at 485 – 486; Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at 328 – 329; and Special Minister of State v Quin (1984) 3 FCR 293 at 297 – 298. Having done so, the Court is of the opinion that annexure J is of the character of non-disclosable information as defined in s 5 of the Act. 45 There is the further aspect namely, whether there have been and will continue to be a breach of the requirements of natural justice unless annexure J is provided, with the consequence that jurisdictional error arose or arises from non-provision of it to the applicant. The relevant content of procedural fairness (and hence the rules of natural justice) is derivative from the applicable statutory framework, the nature of the decision to be made, the subject matter being dealt with and the facts and circumstances of the case: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per McHugh J at [129]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [60]; McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at 209. In this case it is the statutory framework which is particularly determinative of the application of the rules of natural justice in the circumstances. 46 The statutory provision governing the notification of decision on refusal or cancellation of a visa is s 501, which provides: "501G (1) IF a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and (f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal: (i) states that the decision can be review by the Tribunal; and (ii) states the time in which the application for review may be made; and (iii) states who can apply to have the decision reviewed; and (iv) states where the application for review can be made; and (v) in a case where the decision relates to a person in the migration zone – sets out the effect of subsections 500(6A) to (6L) (inclusive); and (vi) sets out such additional information (if any) as is prescribed. (2) ………………………………………………… (3) … (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision." (Emphasis added) Similar provisions apply in relation to review by the Administrative Appeals Tribunal; the Migration Review Tribunal and the Refugee Review Tribunal (see s 500(6F)(c) and (d); s 359A(4) and s 424(3) of the Act). In common with those provisions, s 501G provides that non-disclosable information is not required to be provided to an applicant. The consequence is, in accordance with the well established law previously referred to, it was not a breach of the rules of natural justice for the respondent to refuse to disclose annexure J. 47 Paragraph 15 raises the issue of privilege. The respondent claims public interest privilege over annexure J. The question requiring consideration for the applicant is whether such privilege has been waived. However, public interest privilege cannot be waived: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 436 and 446; Special Minister for State v Quin; Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427 at 432 – 433. In any event, the circumstances needed to support waiver are not present. There is no evidence from or claim by the applicant that he read annexure J. Its provision was unintentional so that there was no intended waiver: Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 at 541; Kabwand Pty Ltd v National Australia Bank Ltd (1987) 81 ALR 721 at 723; cf Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485 at 491. There is no foundation in considerations of fairness to support a finding of waiver if it were otherwise open: Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 481 and 488; and British Coal Corporation v Dennis Rye Pty Ltd [1988] 1 WLR 1113 at 1121. It follows the submission in par 15 must be rejected. Conclusion. 48 For these reasons the application for review should be dismissed. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson . Associate: Dated: 20 February 2003 The Applicant represented himself Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 July 2002 Date of last submissions: 7 August 2002 Date of Judgment: 20 February 2003