Jariv v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1561

FEDERAL COURT OF AUSTRALIA

Jariv v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1561 JAMES JARIV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR N 2163 of 2003 ALLSOP J 16 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2163 of 2003

BETWEEN: JAMES JARIV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

THE SECRETARY, DEPARTMENT OF IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT JUDGE: ALLSOP J

DATE OF ORDER: 16 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1 The application for interlocutory relief be dismissed. 2 Costs reserved. 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 2163 of 2003

BETWEEN: JAMES JARIV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

THE SECRETARY, DEPARTMENT OF IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE: 16 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 3 In this matter the applicant seeks interlocutory relief in the nature of an injunction restraining the respondent Minister from taking a decision to refuse the applicant's application for a sub-class 845 visa until further order of the Court. 4 The applicant is present within the country. He is a citizen of Israel and the United States of America and was granted a sub-class 457 visa which was valid until August 2003. He currently has a bridging visa and he has applied for a sub-class 845 visa. 5 The precise nature of these visas need not be dealt with. On or about 18 September 2003 the applicant through his solicitor received a notice of intention to consider refusing a visa, that is the application for the 845 visa, on what can be described as character grounds under s 501 of the Migration Act 1958 (Cth) (the Act). Thereafter ensued correspondence which is contained within Mrs O'Donoghue's affidavit of 28 November 2003 which is before me. 6 I will not, because of the time, set out that correspondence in full. It is conveniently located at annexures (a) through (g) of Mrs O'Donoghue's affidavit. I have read that affidavit with the assistance of Mr Karp during the hearing. The Minister indicated in that correspondence that the matters to be taken into account included the applicant's association with someone else whom the Minister reasonably suspects has been or is involved in criminal conduct, and the applicant was also informed that information which is protected under 503A of the Act was before the Minister and could not be released. 7 In her correspondence, Mrs O'Donoghue asked for, amongst other things, the following information, as set out in paragraphs (a) through (g) in the letter of 31 October 2003, which is part of annexure C to her affidavit: (a) The name of the agency which supplied the information which is said to be the subject of the protection pursuant to section 503A of the Migration Act. (b) Whether that agency is an agency of the Australian Government, the New Zealand Government, or the government of another country. (c) The specific terms of the request for confidentiality that is said to attend the information which is said to be the subject of protection pursuant to section 503A of the Migration Act. (d) The name of the person or persons whom the Minister "reasonably suspects" to be or have been involved in criminal conduct, and with whom the applicant is said to have been associated. (e) Whether the person or person mentioned in sub paragraph (d) above is or was a resident of Australia, and whether he is or is not the holder of a visa to re-enter Australia. (f) The year or years in which the association is referred to in sub paragraph (d) above is said to have occurred. (g) The name of the country or countries in which the association referred to in sub paragraph (d) above is said to have occurred. 8 The Minister thereafter has refused to give any information on the basis of the application of s 503A and s 503D of the Act. 9 The interlocutory application is sought, in effect, on three grounds. First, it is said that the gazettal in schedule 2 of the instrument made on 14 August 2003 under s 503A(9) of the Act was invalid. It is said that only foreign countries or parts of foreign countries have been gazetted and not foreign law enforcement bodies for the purposes of the definition of "gazetted agency" in s 503A(9) made relevant by the balance of s 503A. I do not think this argument at this level of debate raises a serious issue. In my view, what s 503A(9) contemplates is, in the case of foreign law enforcement bodies, that there would be a gazettal of the foreign country of the part of the foreign country. That appears to me to be made clear by not only the words of the subsection but also if there be any doubt, the words of [31] and [32] of the revised explanatory memorandum to the Migration Legislation Amendment (Protected Information) Bill 2003. Mr Karp, who appeared for the applicant, also relied on s 46(2) of the Acts Interpretation Act 1901 (Cth). I do not think that provision assists in any way. 10 The second ground was that even if it be the case that s 503A and s 503D prevented the disclosure of certain information, there was other information that could be disclosed without infringing 503A or 503D and that information was that requested in Mrs O'Donoghue's letters. The difficulty is that it is almost impossible to understand what would and what would not be a divulging in contravention of s 503A and s 503D without understanding the base premise, that is, the information that cannot be divulged or known. Whilst this may have an effect on the next argument, I think it leads to the conclusion that there is no evidence or material before which persuades me that there is a serious issue to be tried about there being information, not covered by the sections which could be provided conformably with an obligation to afford reasonable procedural fairness, which has not been provided. 11 Thirdly, there is an argument that the relevant provisions, s 503A and s 503D, are constitutionally invalid. I think there is a serious question at least for the purpose of debate about these matters. The precise strength of it is difficult to gauge without appropriate argument. That is not to say that it is a strong case; it is not to say that it is weak case; it is only to say that there is an issue for debate. The difficulty that I have in ascertaining whether or not there might or might not be an arguable breach of rules of procedural fairness throws into some relief the nature of that debate. It is one thing to say that a Court cannot have a particular body of information, it might be another thing to say that the applicant is not entitled to any skerrick of natural justice in relation to the decision. The latter has not been done by the section. That is, the section does not say that the applicant is not entitled to natural justice or procedural fairness. It makes certain information confidential. That information cannot be given to the Court. It then becomes very difficult to ascertain whether or not an officer of the Commonwealth is conforming with the statutory authority given to him or her in the exercise of the power to consider the visa application. 12 Thus, I think there is a question for debate about the reach of the provisions and how they impact upon the exercise of the judicial power of the Commonwealth and one for consideration on the later occasion after notices under s 78B of the Judiciary Act 1903 (Cth) are issued. However, I am not persuaded that I should be compelled to the view of their unconstitutionality or compelled to the view that I should grant an order on the basis of their being unconstitutional or likely to be unconstitutional. 13 In this respect I refer in particular to the statement of Mason CJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 discussed and applied in other cases in the High Court and in this Court. A consequence of my view as to how I must treat the constitutional validity of the provisions, being s 503A and s 503D, is a view that I do not think that there is a substantial issue for trial in relation to the first two points. 14 As to the gazettal issue, not only is the meaning of s 503A(9) clear in my view but, also, even if the converse were the case, that is, that schedule 2 was in fact invalid, it does not take Mr Karp any further, logically, down the path to interlocutory relief. I do not know where the information comes from. If I were of the view that the gazettal was invalid, it may be that the Minister would then have to consider the information before her and whether she could validly take the view that the information was protected by s 503A and s 503D, but it would not take today's application a step closer to relief, because neither Mr Karp, nor Mr Markus, nor I, knows or know what the information is, and whether it came from a foreign law enforcement body, or a local one. 15 Further, as I have said in relation to the peripheral natural justice argument, if I may use that expression, the difficulty is that I do not think I have any material before me that demonstrates that the Minister or the Department is not providing relevant information in the procedural fairness sense, not otherwise protected by the secrecy provisions in s 503A and s 503D. 16 The liberty of the subject is in question indirectly in that if a decision is made, and if a decision is made to reject the application for the visa, the applicant will become an unlawful non-citizen and be liable to immediate apprehension and detention. However, on the material before me, I am not able to conclude that I should exercise a power to restrain a Minister of the Crown from making a decision. I cannot, on the lack of information before me, be clear that a decision will be made contrary to the interests of the applicant, though it is clear on the papers that there is a legitimate threat that such a decision may be made. 17 On the material before me, as I have said, I do not think I have a basis to restrain the Minister from making a decision, or purporting to make a decision in the circumstances. If I am wrong about this, an application for leave from this decision can be sought. Alternatively, if I am wrong about this, the matter would crystallise at the point of making a decision as to whether natural justice has in fact been afforded and my refusal of the orders today would not in any way impinge or affect the applicant's rights to challenge the decision as one made without statutory authority on the principles well set out now in cases such as Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. 18 In the above circumstances: 1. I dismiss the application. 2. I propose to reserve the costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.