FEDERAL COURT OF AUSTRALIA Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 490 ADMINISTRATIVE LAW – issue arising at first instance before AAT as to access to government documents – claims of privilege from production on grounds related to public interest sensitivity – recommendation for reference to Full Court for authoritative determination Administrative Appeals Tribunal Act 1975 (Cth) ss 36(1)(a) and 36A(1) and (2) WONG TAI SHING v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 274 OF 2006 CONTI J 5 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 274 OF 2006 BETWEEN: WONG TAI SHING APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT JUDGE: CONTI J DATE OF ORDER: 5 MAY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The interlocutory proceedings for determination of the viability of the respondents' claim to public interest immunity advanced pursuant to the Attorney General's certificate bearing date 10 April 2005 be referred to the Full Court for hearing and determination pursuant to s 25(6) of the Federal Court of Australia Act 1976. 2. Costs of the present proceedings to date be reserved. 3. The parties provide draft directions for consideration by the primary judge at least in the first instance as to the scope of the reference and as to the documentary material to be placed before the Full Court, and for the provision of submissions to the Full Court. 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 NSD 274 OF 2006 BETWEEN: WONG TAI SHING APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT JUDGE: CONTI J DATE: 5 MAY 2006 PLACE: SYDNEY REASONS FOR REFERRAL OF PROCEEDINGS TO FULL FEDERAL COURT 1 The applicant seeks review by way of statutory appeal, pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'), from the interlocutory decision of the Administrative Appeals Tribunal ('AAT') made on 24 January 2006, whereby it was determined that documents listed in the respondents' schedule of exempt documents were privileged from disclosure to the applicant, save as to those numbered 41 and 79. That decision was made by Deputy President G D Walker, and his comprehensive reasons for decision extended over 56 pages. Both parties were represented by counsel on the present application. 2 By the applicant's notice of appeal filed on 17 February 2006, there was raised the following asserted questions of law: (i) whether the answering of the several questions falling within the certificate issued by the Attorney-General dated 10 April 2005 under ss 36 and 36A of theAAT Act would be contrary to the public interest (ss 36A(2)(a) and 36D(2)(b) of the AAT Act); (ii) whether the AAT has failed to take into account relevant considerations; (iii) whether the proceedings before the AAT were in breach of the rules of procedural fairness; and (iv) whether the AAT has taken into account an irrelevant consideration. 3 The applicant is a national of the People's Republic of China, having been born there on 26 November 1957. His wife and children presently reside in Hong Kong. On 22 August 1999, he entered Australia pursuant to a visitor's visa. Shortly after his arrival, he applied for and was granted a subclass 560 student visa, valid until 5 January 2001. His proposed course of study in Australia was to commence in the year 2000, and was to comprise a three year business management course. On 15 December 2000, he applied for renewal of that visa for the purpose of continuing his course of study during 2001. Virtually from the outset he retained his present solicitor for the purpose of lodging and pursuing his visa renewal application. 4 A decision on the applicant's visa application was made by the Minister adversely to the applicant on 22 January 2002. The applicant has claimed that the first time he became aware of that refusal was on the occasion of his arrest on 7 February 2002 by an officer of the Department of Immigration at his place of residence. Since then he has been continuously held in detention, all applications made for his release having been unsuccessful. 5 The applicant's original visa refusal decision was made by the Minister for Immigration and Multicultural and Indigenous Affairs pursuant to s 501(3) of the Migration Act 1958 (Cth). Subsequently on 13 February 2002 and on 4 March 2002, representations were made on his behalf by his solicitor to the Minister pursuant to s 503C of that legislation. On 28 May 2002, the Minister decided not to revoke the earlier refusal decision. Documentary information from authorities of the People's Republic of China concerning the applicant were apparently placed before the Minister at the times of her relevant decision-making. None of those documents are said by the applicant to have been provided to him, whether by way of photostat copies or otherwise for some considerable time, until on 8 April 2002 there occurred the partial release of documents, purportedly pursuant to the Freedom of Information Act 1982 (Cth). Exemption from disclosure and production of the remainder has been the subject of litigious claim on the respondents' part. I observe that in the reasons for decision of the AAT, it is said (at [19]) that 'a large volume of documents' was released to the applicant on 29 November 2004. 6 During the hearing before the AAT on 6 December 2004, in the course of cross examination of a witness, being Mr Craig Riviere, counsel for the first respondent was granted an adjournment to enable representations to be made to the Attorney General. Upon further hearing on 19 April 2005, a document described by the applicant's solicitor as consisting of 'a number of pages' was admitted into evidence, whereof the first page alone was said to have been provided to the applicant. That document comprised a certificate dated 10 April 2005 issued purportedly pursuant to ss 36 and 36A of the AAT Act. Privilege was claimed by officers of either or both of the respondents in relation to the remainder. The certificate, which is currently in contention, was to the effect that the disclosure of information specified in a confidential schedule to the certificate would be contrary to the public interest, in that it would prejudice the international relations of Australia within s 36(1)(a) of the AAT Act. I was also referred in that regard to s 36A(1) and (2) of the AAT Act. Upon the resumption of cross-examination of Mr Riviere, the Attorney-General objected to a number of questions which counsel for the applicant addressed to that officer, upon the footing that the abovementioned certificate excused the Attorney-General's witness from answering those and similar questions. The Attorney-General's objection was further upheld by the AAT, upon the basis of the certificate in relation to a large number of questions put in cross-examination to another witness called on behalf of the Attorney-General, being Mr Peter Coyne. 7 The current proceedings first came before me on 27 March 2006 and in response to the orders made on that occasion, the respondents submitted the following question for resolution by a Full Court on 13 April 2006: 'Does the Court on an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 ("the Act") in relation to whether under section 36A of the Act the answering of a question would not be contrary to the public interest: (a) make a decision on the merits, by reaching its own opinion; (b) determine the issue by reference to whether there was an error of law in the forming by the Attorney-General of his opinion; or (c) determine the issue on some other basis?' The respondents have further submitted that there arises for consideration, for construction in particular not only of ss 36A(2) and 44(1) of the AAT Act, but also of s 36D(2) of the same legislation. 8 On 26 April 2006, the parties appeared again before the Court by their respective counsel, in the course of which debate occurred as to the desirability or otherwise of a Full Court addressing the issues arising as to privilege from production and consequential access, instead of a single judge. It became readily apparent, in the course of oral submissions in particular, that sensitive issues may well be involved in relation to the controversy as to access to the documents or categories of documents sought by the applicant, being issues concerning at least Australia's international relationship with the People's Republic of China. For that reason it became further readily apparent that the outcome of any first instance proceedings in favour of either party would inevitably be challenged on appeal, having regard to the implications to both parties of production of what the respondents contend to be sensitive governmental documentation involving Australia's relationships with China. Moreover I was informed by counsel for the Minister that the s 36A notion of 'public interest' raises or involves 'a novel question without judicial precedent'. 9 In the result, I adjourned the proceedings in order to determine whether the issues of statutory construction arising should be resolved in the first instance by a Full Court, if at all possible in the course of the next Full Court sittings in 2006. In light of the debate that took place, I am of the opinion that such a course would be both appropriate and expedient. If that course should be affirmed in principle, it would be necessary for the parties to submit to the court the precise text of the questions to be raised, and for any further procedural matters to be resolved by me, at least in the first place. 10 In the circumstances, I grant liberty to either party to reapply on 3 clear days notice. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 5 May 2006 Counsel for the Applicant: Mr R B Wilson Solicitor for the Applicant: Mr W H Leung Counsel for the Respondent: Ms M Allars Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 April 2006 Date of Judgment: 5 May 2006