FEDERAL COURT OF AUSTRALIA Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 973 MIGRATION – urgent application for interlocutory order for release from detention – relevance of pending amendments to the Migration Act 1958 (Cth) – balance of convenience – serious question to be tried – non-disclosable material and protected information under the Migration Act 1958 (Cth) Freedom of Information Act 1982 (Cth) Judiciary Act 1903 (Cth) – s 39B Migration Act 1958 (Cth) – s 501(3), s 501C, s 503A Migration Amendment (Duration of Detention) Bill 2003 Attorney-General (Cth) v Foster (1999) 84 FCR 582 Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 758 Jupp v Computer Power Group Ltd (1994) 122 ALR 711 Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 (2002) 196 ALR 111 Preston v Minster for Immigration & Multicultural and Indigenous Affairs [2003] FCA 420 Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 19 Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 Warramunda Village Inc v Pryde (2002) 116 FCR 58 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 440 WONG TAI SHING v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 297 OF 2003 BENNETT J 16 SEPTEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N297 OF 2003 BETWEEN: WONG TAI SHING APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BENNETT J DATE OF ORDER: 16 SEPTEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The notice of motion is dismissed. 2. The applicant is to pay the respondent's costs of the motion. 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 N297 OF 2003 BETWEEN: WONG TAI SHING APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BENNETT J DATE: 16 SEPTEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant has brought an urgent application by way of notice of motion seeking an order that he be released from immigration detention forthwith upon conditions. Those conditions are: '1. That the Applicant reside at premises situate at 110 Caroline Street, Kingsgrove in the State of New South Wales. 2. That a surety give surety, and lodge acceptable security therefore, in the sum of $100,000, such surety and security being acceptable to the Registrar, which shall be forfeited should the Applicant fail to depart Australia upon completion of his legal proceedings relating to the subject decisions of the Respondent at the request of the Respondent. 3. That the Applicant report to an officer or place, nominated by the Respondent, between the hours of 10.00 am and 4.00 pm each Monday, Wednesday and Friday of each week.' or such other conditions as the Court considers appropriate. 2 It was not in dispute, for the purposes of this motion, that the Court has the power to make the orders sought (Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 (2002) 196 ALR 111 ('VFAD'); Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 758 ('Johnson'). This itself may be the subject of argument in due course but, for the purposes of this application, I am prepared to accept that the principles of VFAD apply to Mr Wong. As was held in VFAD, s 196 does not prevent the Court from ordering that release of a person who establishes that there is a serious question to be tried regarding the lawfulness on an interlocutory basis of that person's detention. Background 3 The applicant, Mr Wong, is presently held in detention at Villawood, New South Wales. He has been in detention since his application for a visa was refused and was taken into custody on 7 February 2002. He has been in Australia on a student visa, originally granted on 12 November 1999 and valid until 5 January 2001. On 15 December 2000, Mr Wong applied for a further annual student visa, to permit him to complete the 3 year course that he was studying. Pending the grant of that visa, he was lawfully in Australia as the holder of a bridging visa. No decision on his renewal application was taken until 22 January 2002, when the respondent ('the Minister') refused the visa application pursuant to s 501 of the Migration Act 1958 (Cth) ('the Act'). 4 The Minister's decision to refuse to grant a visa to Mr Wong was made under s 501(3) on 22 January 2002 ('the first decision'), on the basis that the Minister reasonably suspected that Mr Wong did not pass the character test defined in s 501(6) of the Act and that the Minister was satisfied that the refusal or cancellation was in the national interest. 5 Natural justice does not apply to a decision made under s 501(3) by reason of s 501(5). 6 Section 501C provides for circumstances in which the Minister may, personally, revoke the first decision. That section also provides that particulars of the 'relevant information' (being information within the description of s 501C(2)), other than non-disclosable information, must be provided to the person who may then make representations to the Minister in accordance with the regulations. On 28 May 2002 the Minister made a decision under s 501C refusing to revoke the first decision ('the second decision'). 7 Mr Wong has been in detention since February 2002 and has commenced legal proceedings with respect to the first decision and the second decision. Litigation history 8 According to the chronology handed up by counsel for the applicant, an application was filed by Mr Wong in the Federal Court on 15 February 2002 with respect to the first decision. An application was filed in the High Court on 11 March 2002 and the matter remitted to the Federal Court. Tamberlin J dismissed the application on 6 August 2002. The appeal from the decision of Tamberlin J was dismissed on 20 December 2002. An application for special leave, filed in the High Court, is expected to be heard in March 2004. 9 An application was filed in the Federal Court on 5 July 2002 with respect to the second decision. An application was filed in the High Court on 10 July 2002 and the matter remitted to the Federal Court. Wilcox J dismissed the application on 6 November 2002. An appeal from the decision of Wilcox J has been filed but not yet heard. 10 There has also, apparently, been an application under the Freedom of Information Act 1982 (Cth) and an application for review of decisions under the Freedom of Information Act in the Administrative Appeal Tribunal which is to be heard on 14 and 15 October 2003. 11 The applicant sought leave, in the matter before Wilcox J, to administer interrogatories to the Minister. Leave was granted on 10 October 2002. An appeal against that decision was upheld by the Full Court on 31 October 2002. An application for special leave was filed in the High Court on 27 November 2002 and that application is to be heard on 2 December 2003. 12 An application was filed in the Federal Court by Mr Wong on 12 August 2003 pursuant to s 39B of the Judiciary Act 1903 (Cth) with respect to the first decision and the removal of Mr Wong from Australia. That application, I am told, repeats the grounds in the application heard by Tamberlin J but adds two new grounds. I was not invited to consider the previous decisions in detail or to delve into the assertion that the new hearing was in respect of fresh evidence and, considering the urgency of the application, I have not done so. This application is presently listed for hearing before Lindgren J and is to be heard on 30 and 31 October 2003. The notice of motion is filed in those proceedings. It may be that there are other proceedings also listed before Lindgren J on that date. The fact is that his Honour will have the opportunity on that occasion fully to consider Mr Wong's submissions and circumstances. It was conceded that his Honour would be in a better position than I to assess whether Mr Wong should be released from detention pending the final resolution of his various legal proceedings but the application was brought before me as duty judge on two bases, said to give rise to urgency, to which I shall refer. 13 A consideration in the 12 August 2003 application is the content of documents referred to as Attachments C1-C10 ('the C1-C10 documents'). These documents were before the Minister when he made the first decision and second decision and originated in China. The applicant claims that they were forwarded by the Beijing office of the Department of Immigration and Multicultural Affairs, having been provided to the Minister by authorities of the People's Republic of China. Mr Wong and his legal representatives do not know the contents of those documents and have not seen them. They say that they are entitled to see them. The respondent says that they are protected by reason of s 503A of the Act. 14 Mr Wong has offered to participate in any interview, in Australia, with the Chinese authorities and has written to the Consulate-General for the People's Republic of China making that offer. He has received no reply. Alleged urgency 15 The two reasons advanced for a need for an order for Mr Wong's immediate release were based on his state of health and the fact that, on 9 September 2003, the Senate passed the Migration Amendment (Duration of Detention) Bill 2003 ('the amendments'), amending s 196 of the Act. 16 Section 196 of the Act presently provides: '(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under Section 200; or (c) granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.' 17 The amendments provide: '1 At the end of section 196 Add: (4) Subject to paragraphs (1)(a), (b) and (c), the detention is to continue unless a court finally determines that: (a) the detention is unlawful; or (b) the person detained is not an unlawful non-citizen. (5) To avoid doubt, subsection (4) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (6) This section has effect despite any other law. (7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa). Note: The heading to section 196 is altered by omitting "Period" and substituting "Duration". 2 Existing orders unaffected Subsections 196(4), (5), (6) and (7) of the Migration Act 1958 as added by item 1 do not affect the validity of any order made by a court before the commencement of this Schedule.' 18 The amendments come into effect once they receive Royal Assent, which has not yet occurred. The urgency raised by Mr Wong is that he will lose the opportunity to be released from detention pending the final determination of his status once the amendments receive Royal Assent. An application for release had been made or was in the process of being made but it was expected that the application will not be determined prior to the amendments coming into effect. If I make an order prior to the Royal Assent, that order will not be affected by the amendments. I was asked by Mr Wilson of Counsel for Mr Wong to assume that, once assent is given, this applicant would not be able to make an application to this Court for interlocutory release and would have to remain in immigration detention pending final resolution of his proceedings. 19 For the purpose of this argument, it was agreed that, if Mr Wong is successful before Lindgren J in setting aside the first decision, his bridging visa will automatically be reinstated and his detention will no longer be lawful. The matter proceeded before me on the basis that, if Mr Wong can establish an arguable case in setting aside the first decision, it will then also be necessary to consider his state of health and risk of flight to determine the balance of convenience and whether an interlocutory order should be made. 20 The only grounds presented to raise an arguable case were based on the C1-C10 documents. That is understandable if it be the case, as seems to be conceded, that many of the issues were determined in the proceedings that were dismissed by Tamberlin J, which dismissal was affirmed by the Full Court. 21 The C1-C10 documents were before the Minister as 'protected information' for the making of the first decision. Mr Wong's solicitor made detailed representations to the Minister for the purposes of the second decision which included comment on the fact that he was not provided with the C1-C10 documents or details of what those documents contained. The solicitor gave details of Mr Wong's history and pointed out that he had not committed any offences in Australia. It was asserted that Mr Wong did not know why his visa application had been unsuccessful. 22 Despite the somewhat complex litigation history and issues that have been raised by Mr Wong, in particular concerning the C1-C10 documents, Mr Wilson submitted that the questions to be considered for the purposes of this application are whether there are arguable grounds that the first decision was wrong and whether the imminent taking effect of the amendments results in the balance of convenience favouring the making of an order for release from detention. Mr Basten QC for the Minister agreed that it was only the first decision that was relevant but submitted that the amendments were neutral and of no relevance. The strength of the applicant's case 23 Mr Wilson put his case on the first decision this way: the application to be heard by Lindgren J raises fresh grounds not previously considered. Those grounds go to the question of whether, as a matter of construction, the C1-C10 documents contain information which is information protected from disclosure by reason of s 503A, is non-disclosable information for the purposes of s 502C(2) of the Act. That argument was not in any way developed before me. Mr Wilson then submitted that, if it is not non-disclosable information, the fact that the Minister, in making the first decision, was told that it was meant that the Minister acted on an error in law. 24 The materiality of that error was said to be that, in the exercise of a residual discretion in s 501(3), the Minister failed to consider whether or not he had to disclose the documents for the purposes of s 501C. If the Minister had appreciated that the documents would need to be disclosed, he would have had to consider whether he wished to disclose the documents and, if he did not wish to disclose them, he may have decided not to refuse the visa application. Mr Wilson submitted that the first decision and the second decision are 'one decision' linked by the statutory scheme but, subject to that, said that for the purposes of this motion it is the first decision that is relevant. 25 With respect to the second decision, to which natural justice applies, it is said that if the documents were disclosable and they have not been disclosed, there has been a denial of natural justice and the second decision is liable to be set aside. 26 Mr Basten QC submitted that the first decision cannot be so invalidated. Even if there were a mistake, that mistake refers to matters after the decision is made and cannot affect the validity of the decision itself, which is based on the determination of the matters in s 501(3)(c) and (d), not on whether information is disclosable or not. Further, it is speculative as to whether the fact of disclosability was relevant to the first decision at all. Further, Mr Basten points to s 503A(6) in connection with the construction of s 503A and to the definition of 'non-disclosable information' in s 5 of the Act, which again raises the issue of speculation as to the subjective opinion of the Minister and the difficulties of review of that opinion. Mr Basten submits that it is not correct to say that documents protected by s 503A can be disclosed under s 501C and that the contrary is not even reasonably arguable. Even if it were, he submits that it cannot invalidate the first decision which is separate from the second decision. To the extent that Mr Wilson submitted that there is only one decision, made up of two stages, Mr Basten pointed to the structure of the Act which delineates two decisions and different criteria applied to them, in particular natural justice. 27 In my view, it is difficult to conclude that, even if the documents were not protected from disclosure for the purposes of s 501C, the question of whether or not they were non-disclosable was a relevant factor in the first decision. The first decision is separate from the second decision. While the documents were before the Minister, they form no part of the statutory criteria in s 501(3). The rules of natural justice do not apply to that decision and it is a matter of mere speculation as to what the Minister might have done in exercising the power in that subsection if he had been informed that the documents were disclosable. 28 I was informed that this argument has not previously been raised by Mr Wong. There was no evidence before me as to why he should be permitted to relitigate a matter that has already been heard and determined as set out above. The application to be heard by Lindgren J repeats grounds (a) to (g) that were determined by Tamberlin J and adds fresh grounds (h) and (i). I note that, in the reasons of Tamberlin J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959 at [11], reference is made to protected information within s 503A and it seems from those reasons, particularly at [14] and [15], that it was not only accepted that such protected information was non-disclosable information for the purposes of s 501C but reliance was also placed on that fact by the applicant. See also the reasons of the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 440 at [7], [9] and [43]-[44]. 29 In my opinion, even disregarding the fact that there may be questions about the right to relitigate the first decision, it cannot be said that the application to set aside the first decision on the ground relied upon before me is strongly arguable. In my opinion, if it can be said that there is a serious question to be tried, the prospects of success are not strong. Balance of convenience 30 Counsel for Mr Wong relied on the approach taken in Johnson to the assessment of the balance of convenience. In that case, however, there was no dispute that there was a serious question to be tried, as the same constitutional issues were raised as in Shaw v Minister for Immigration & Multicultural & Indigenous Affairs,in which judgment in the High Court was reserved. Accordingly, the motion was decided on the balance of convenience. French J (at [11]) recognised that the criteria for the grant of interlocutory relief, namely the strength of the applicant's case and the balance of convenience, are interdependent. His Honour took the same approach to assessing the balance of convenience as in Preston v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCA 420 at [27]. His Honour also observed at [22]: 'The question whether an applicant for judicial review of a visa cancellation decision should be released from immigration detention pending the hearing and determination of the substantive application, is not to be answered by reference to criteria applicable to the grant of bail in criminal or extradition proceedings. The applicant in such a case asserts that he or she is entitled to remain in Australia and resists removal from this country. The release of such an applicant does not, in the ordinary course, involve a risk of flight from the jurisdiction which would be at odds with the very result which the applicant seeks to achieve. What it does risk is the possibility that an applicant might fail to comply with the conditions of interlocutory release and 'disappear' into the community in order to evade removal from Australia.' 31 The first application to set aside the first decision was filed on 15 February 2002 and no application has been made in that time to seek Mr Wong's release from detention. 32 It was submitted that Mr Wong's mental health has deteriorated and has been affected by the length of litigation, uncertainty and a number of adjournments of the proceedings in the Administrative Appeals Tribunal and those currently before Lindgren J. It was, on the evidence, properly conceded by Mr Wilson that there is no acute health change likely in the next six weeks and that, had it not been for the amendments passing in the Senate last Wednesday, there would have been no application for release from detention prior to the hearing at the end of October, when the matter will be heard by Lindgren J and where an application for release from detention is to be made. On this basis, there is no real urgency. 33 The next question is the relevance of the amendments. In the present case, the applicant will, when the amendments come into effect, lose the prospect of release on an interlocutory basis. The fact of those amendments, without further argument or authority, formed the basis of Mr Wilson's submissions on the balance of convenience. Mr Basten asserted that they were of no account but provided no further argument or authority to support that proposition. I say this without criticism of either counsel in the circumstances of an urgent application brought on with minimal notice. It seems, however, that the question of relevance of the amendments is not without difficulty. 34 In Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, the New South Wales Court of Appeal, in dealing with a consent adjournment by reason of proposed legislative change, held that the Court has the power and the duty to ensure that proceedings before it are disposed of in due course and that the prospect of legislative change is not of itself a sufficient or proper ground for allowing an adjournment. McHugh JA said, at 258: '… as a general rule, it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future'. 35 In Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 ('Grdovic'), the New South Wales Court of Appeal held that, in the exercise of the discretion to grant a contested application for an adjournment, it is not proper for the Court to take into account as a controlling factor the prospect of a substantive legislative amendment which would accrue to the benefit of one party. Mason P, with whom Sheller and Beazley JJA agreed, said (at 531) that an announcement of proposed legislative change does not in any way qualify the judicial branch's obligation to uphold the existing law or enliven a power to grant a contested adjournment of proceedings so as to enable one party to gain the benefit of proposed legislation to the detriment of another party and cited a line of cases to the same effect. His Honour did distinguish situations where the Court is dealing with a discretionary remedy where relief may be denied on the ground of futility and where an adjournment is sought to enable a proposition established in a decided case to be tested in an appeal (at 534-535). Grdovic was followed by the Full Court in Attorney-General (Cth) v Foster (1999) 84 FCR 582 ('Foster'). 36 In the Full Court decision of Warramunda Village Inc v Pryde (2002) 116 FCR 58 ('Warramunda'), Finkelstein J (at 73 and following) considered the question of relevance of a proposal to amend legislation. His Honour, who was not considering amending legislation but an anticipated change to an industrial award, looked to the authorities where adjournments had been granted and refused and said that decided cases are only relevant by analogy. Finkelstein J considered the reasoning of Gray J in Jupp v Computer Power Group Ltd (1994) 122 ALR 711 where his Honour had said (at 716): 'The matter should be decided, in my view, by the application of the general principle that courts apply the law as it is. The application of that principle dictates that no special step be taken to avoid the proposed amendments. The Court should not bring a case forward to assist an applicant any more than it would delay it to assist a respondent.' 37 Finkelstein J disagreed with Gray J's formulation of the principles and preferred the formulation of Burt CJ in Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190 at 194 which his Honour summarised (at 75) in terms that 'a party is entitled to "justice according to the law as it is" refers to the law which is invoked when the writ is issued, and not to the law as it may be at the date of the hearing'. Finkelstein J concluded (at 75) that 'a court will not fall into error for bringing a case on for hearing earlier than the appointed day, provided it can be heard without injustice to any party to the proceeding, or to parties in other litigation that may also have a just claim on the judge's time'. In Warramunda,Lee J did not discuss the question in detail, agreed with Finkelstein J that the appellant had not demonstrated that the primary Judge had erred in exercising the discretion to alter the date for hearing but observed that the question, whether it was not appropriate to adjourn a case to await prospective legislation that would alter rights, was incidental to and not the basis for that exercise of discretion. Gyles J did not discuss the issue or make clear whether or not he agreed with Finkelstein J in that regard. 38 It seems to be accepted that a Court is not justified in adjourning a matter on account of the possibility that the law could be the subject of amendment by Parliament (Foster at 585). 39 The amendments, already passed by both Houses of Parliament, specifically do not affect existing orders of the Court but specifically do purport to apply to existing proceedings, such as those commenced by Mr Wong. This is not a case of some hoped-for legislation of uncertain content; the amendments are of imminent effect. 40 There may well be a difference between adjourning a matter that is otherwise before the Court for hearing and permitting an interlocutory application to be brought to take advantage of the law as it is and as it was at the time of filing the originating proceedings. The question arises whether pending changes in the law should affect the ordinary conduct of proceedings. Is there a relevant difference between an adjournment and the advancement of a hearing? There is, in my opinion, a degree of analogy between the Foster situation and a situation where the Court is asked, in effect, to advance a hearing because the law is about to be the subject of amendment. 41 The difficulty is that, given the nature of this application, I have not had the advantage of proper submissions on this aspect, nor have I been able to give the parties the opportunity to make those submissions as I have been urged to give my decision without delay. In the circumstances including my conclusion on the strength of the applicant's case, I do not finally decide the question but I am inclined to the view that, as the sole consideration in relation to the balance of convenience, it does not weigh in the applicant's favour. 42 Mr Wilson also submitted that there was no fear of flight and pointed to the fact that Mr Wong had not made any such attempt previously, despite the opportunity to do so, as well as the conditions proffered, including the giving of $100,000 surety. Mr Basten pointed out that Mr Wong's previous conduct was before he became aware of the fact that his application was refused and the existence of the C1-C10 documents and submitted that there was a real risk of flight. On the basis of the evidence before me, I am not prepared to find that Mr Wong, if released, will fail to comply with the proposed conditions which include conditions of residence in Kingsgrove and reporting to an officer or place as nominated by the respondent three times each week. 43 In his application filed on 12August 2003, Mr Wong sought release from detention. It does not seem to be in dispute that, if his application to set aside the first decision is successful, there is no reason why he would not be entitled to a bridging visa pending the making of a fresh decision on his application for a further annual student visa. This means that, if he is correct in his argument that the first decision is liable to be set aside, he would be released from detention conclusion 44 The applicant has not made out a strongly arguable case or a strong case of a serious question to be tried. With respect to the balance of convenience, the applicant's health does not support urgent intervention and is a neutral factor. The risk of flight is neutral. Even if I were to conclude that the amendments are a strong factor in the applicant's favour on the balance of convenience, the weakness of his case, the short time until the hearing before Lindgren J and the fact that, if that application is successful he will be able to apply for release from detention, lead me to decide that I will not make the order sought. 45 The notice of motion is dismissed. The applicant is to pay the respondent's costs of the motion. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 16 September 2003 Counsel for the Applicant: Mr R B Wilson Solicitor for the Applicant: Mr P W H Leung Counsel for the Respondent: Mr J Basten Solicitors for the Respondent: Blake Dawson & Waldron Date of Hearing: 12 September 2003 Date of Judgment: 16 September 2003