Wong v MIMIA [2005] HCATrans 27 (4 February 2005)

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Wong v MIMIA [2005] HCATrans 27 (4 February 2005)

Last Updated: 21 February 2005

[2005] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S37 of 2003

No S362 of 2004

No S363 of 2004

No S364 of 2004

No S365 of 2004

B e t w e e n -

TAI SHING WONG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Applications for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 FEBRUARY 2005, AT 12.34 PM

Copyright in the High Court of Australia

MR G.K. BURTON, SC: May it please the Court, I appear with my learned friend MR R.B. WILSON in each of those matters for the applicants. (instructed by Peter W H Leung)

MR J. BASTEN, QC: I appear with MS M.N. ALLARS for the respondent in each matter, your Honours. (instructed by Blake Dawson Waldron)

McHUGH J: Now, you have a summons for an adjournment. Is that pressed?

MR BURTON: Yes it is, your Honour. The summons was filed on 31 January, was supported by an affidavit sworn on that date by my instructing solicitor, Mr Leung. Your Honour, the ground for the adjournment is set out in the final paragraph of that affidavit on page 2 paragraph 7, starting at line 20. I formally read the affidavit, but that is the relevant part.

McHUGH J: Yes.

MR BURTON: I ought to say to your Honour also that I am instructed that on Wednesday of this week there were further proceedings filed in the Federal Court and notices of motion in the existing Federal Court proceedings filed seeking leave to reopen on the basis of fresh evidence or seeking a new trial on the basis of fresh evidence, and that would be a further ground for adjournment.

In essence, dealing with the first ground, the one set out in the affidavit, I am instructed that on the basis of the material that was previously not disclosed at the time of the original decisions, but was disclosed in what we understand to be a complete form in November 2004, further representations have been made to the Minister under section 501C of the Migration Act 1958, and that if the Minister considers that she now has power, under 501C, to receive further representations, and in the light of those further representations revoked the original decision, that would render any progress on this appeal unnecessary.

The second ground, which relates to the fresh proceedings, and in particular, the notices of motion in the existing Federal Court proceedings to reopen on the grounds of fresh evidence, would raise the question of fresh evidence in a new context. If the Federal Court was minded to reopen the existing proceedings or grant a new trial of the new proceedings then the matters raised in this application for special leave would be unnecessary.

McHUGH J: Well, that may be, but this Court’s business cannot be suspended merely because you want to make other applications. An application for special leave to appeal has no effect on a refusal of an application, would have no effect on whatever other rights she may have, or processes. Why should this Court grant you an adjournment?

MR BURTON: Simply, your Honour, that there would be no need for the matter to be heard by your Honours now, so there would be some short saving of time now and there would be a significant, in terms of cost of preparation of the appeal for a gentleman who was in detention, and your Honour can infer, has had some substantial assistance on a pro bono basis to be where he is, that cost would not be incurred in terms of time and effort. I am told that the period of adjournment would be quite short in terms of the process of representations. There are also some further hearings before the Administrative Appeals Tribunal which are set down in April in which further material may be ordered to be disclosed beyond that voluntarily disclosed, and that may raise similar issues to what I am raising with your Honour now.

McHUGH J: Yes, Mr Burton. We need not hear you, Mr Basten. The applicant, in five applications for special leave to appeal against orders made in two judgments of the Full Court of the Federal Court of Australia, seeks the adjournment of the special leave applications on three grounds. The first is to enable proceedings before the AAT to be heard and a decision given in relation to the release of further documents to the applicant under the Freedom of Information Act. The second ground is to enable the Minister to consider and determine further representations made by the applicant under section 501C of the Migration Act 1958, based upon the release of certain documents to the applicant, and the third ground is that there is an application to reopen Federal Court proceedings on the ground of fresh evidence. In our view, these grounds are insufficient to adjourn the hearing of these special leave applications. Yes, Mr Burton.

MR BURTON: May it please the Court. Your Honour, may I hand up a chart which attempts to set out on one page the interaction between these proceedings and how we come to be where we are. I trust that would be of some use. There are a multiplicity of bases which we respectfully submit are of public importance to justify the ground of special leave, if I might deal with them in turn. I will try not to repeat what is set out comprehensively in the summaries of arguments.

If I could deal firstly with the question of res judicata, cause of action, estoppel, and Anshun principles and their place in relation to administrative law review. The applicant respectfully submits that the question is a live one and is a matter of public importance to the process, not only of migration review decisions, but in administrative law generally.

Going to the chart, if your Honour looks at the right-hand side, you will see a decision of Justice Lindgren on 6 February and that also is on the left-hand side below that Full Court of the Federal Court decision. Both those effectively were decided in large measure on the grounds of the applicant not being able to proceed by reason of one of those forms of preclusion. What is put in short compass, and is set out much more comprehensively in the summary of argument, I think it is in 364 of 2004, is that administrative law processes are substantially different to the private law vested rights, where these principles, and particularly the principles of Anshun have emerged and been developed, and the exceptions to them, in terms of special circumstances. The two points are linked.

In administrative law, in effect, the process is the important matter, rather than the merits as the decision affects a particular individual. The process being correct is a matter of public policy. If errors are later identified in that process which were not the subject of earlier agitation before the court, it is in the public interest that those matters be brought to the attention of the court and the court make a determination on them so that the decision-maker has guidance for the future and for other cases. Justice Lindgren felt that he was bound, at least in relation to issue - - -

McHUGH J: Is your proposition that the Anshun principle is inapplicable in all circumstances in administrative law proceedings?

MR BURTON: Yes, that is the broad proposition, and that that is a matter of public importance.

McHUGH J: Yes.

MR BURTON: And, given the time, I might move on from that, if that is convenient.

McHUGH J: Yes.

MR BURTON: Secondly, and this matter is not raised in any of the appeals, but my friend has notice of it and we would have to amend our notices of appeal if our application was successful, and the reason that it is not in the notice of appeal is that effectively they were filed before the provision of the documents in November 2004 to the Administrative Appeals Tribunal.

The applicant does not seek to reopen Mickleberg or Eastman. However, as your Honours will be aware - and if Justice Gummow was sitting would probably be even more aware, but I think your Honour Justice McHugh made comments in Eastman in this regard as well - in the Mickleberg decision, Justices Toohey and Gaudron left open the applicability of what was said about receipt of fresh evidence by the High Court on an appeal when questions of original jurisdiction of the High Court under section 75 of the Constitution were in issue.

Two of the proceedings here invoked the original jurisdiction of the High Court. That issue was not determined also in Eastman, and the applicant respectfully submits that that is a matter of public importance on which, in addition, there are, with respect, inconsistent comments by current members of this Court on whether section 73 appeals should be treated any differently when they arise under the original jurisdiction of the High Court from when the appeal comes from a State Supreme Court, as in Mickleberg, or from a Territory court exercising federal, but not section 75 jurisdiction, as in Eastman.

Given the policy issues which have clearly led some members of this Court to lament, and Justice Deane originally, vigorously to dissent in Mickleberg, that is a matter which, it would be in the public’s interest, we respectfully submit, to have determined by this Court, whether there is a uniform test which precludes any fresh evidence, or whether the original jurisdiction exception does apply.

I can take your Honour to the passages in, and hand up a copy of Eastman, and give your Honour the page references in Mickleberg, if that is of use, but I have attempted to summarise the comments of Toohey and Gaudron in that regard.

McHUGH J: Yes.

MR BURTON: I turn now to the actual process, which contains the balance of the grounds that we would respectfully submit all raise matters of public importance. We do so because this case involves not just this individual, but a process under an important and peremptory provision of the Migration Act. I stand to be corrected on this, but I think it is the only provision where the Minister, in exercise of a personal discretion, has the ability to make the decision and to then have the person brought into detention without a prior notice to that person, so it has the potential for a significant effect and a drastic effect on the life and liberty of individuals to whom it is applied.

It is very important, in our respectful submission, that that process should be clearly defined and enunciated. In that regard, we respectfully submit that there were several areas in which the original decision record, which your Honours would have seen, and the process that the Minister exercised which is simply to make a decision based on that record, were deficient, and they are matters which need to be determined by this Court. The first of those is there is no reference in the record to whether or not there has been an extradition process or whether, indeed, there is an available extradition treaty under which a process could have been made.

HEYDON J: Was that point raised in the Federal Court?

MR BURTON: It was raised in the form of saying there was an ulterior purpose for backdoor extradition, but the reference to a treaty, I do not - - -

HEYDON J: It is contradictory, really, is it not? Your point in the Federal Court was there was an ulterior purpose of getting Mr Wong out without going through extradition proceedings. Now, you are saying there should have been some reference - - -

MR BURTON: With respect, your Honour, I would submit it is complementary, because I do maintain that the court needs to investigate the issue of whether the test used to say there was insufficient to found an inference of ulterior purpose was the correct test in the Full Federal Court, the test that there must be no other open basis for the Minister to make the decision but, in my respectful submission, it is complementary because that question of purpose would still be a live issue whether or not extradition had been mentioned in the decision record. If the Minister had been told that there was no treaty, which is the case, as I understand it, with the People’s Republic of China, or that there was a treaty, which, as I understand it, is the case with the Hong Kong Special Administrative Region, and that no extradition process had been attempted prior to the Minister making his decision, we respectfully submit that that is a relevant consideration given the effect of this decision to revoke a visa on the person’s departure from Australia who is the subject of that visa.

Whether or not the Minister had the purpose, not disclosed, we would respectfully submit in the decision record, of achieving the object of a backdoor extradition, that was the effect, and that effect is a relevant consideration which does not appear in the decision record. The decision record focused on there being a national interest in the effect of revoking the visa. The wording in paragraph 9 of the decision record, which is the first document in the thin application book, which your Honours have probably seen, 37 of 2003, that application, page 11 is unclear, but indeed I might just read those words with your Honours so that your Honour can see the ambiguity.

HEYDON J: Page 6.

MR BURTON: I am sorry, it is page 6, not page 9, my apologies. It is the last sentence on page 6 at line 57:

The ‘national interest’ has been treated as going beyond core national government functions and interests, for example, depending upon the circumstances, it may include Australia’s ‘reputation’ and ‘good name in the world’.

Then if your Honour goes over to paragraph 11 on page 8, which then goes over to page 9:

There is also a view that the ‘national interest’ may include Australia’s ‘reputation’ and ‘good name in the world’. It is certainly reasonable to conclude that Australia’s international reputation and good standing would be damaged if it provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country and seek to evade that country’s law enforcement action. Given Mr Wong’s record in evading law enforcement activities, and that Australia’s international reputation and good name is paramount, you may find that it is in the national interest that action be taken quickly to prevent him disappearing into the community before -

and this is the unclear reference:

his case is dealt with.

Now, in the courts below, the focus has been on that taking into an account a consequence of the decision impermissibly, and we maintain that as a ground of public importance also that ought to be looked at, but it could also be read as supporting the view that it is in the national interest for Australia’s reputation that Australia assist and return or, in short, that they do not abscond further, people who are under suspicion, not conviction, but suspicion, investigation, and perhaps a request for return from a country.

Now, extradition treaties provide a process for judicial investigation in that situation if an international arrest warrant, for instance, is issued. If the extradition treaty is available that would be the usual process. There is no disclosure to the Minister when the effect of his decision would be to achieve the same as an extradition, whether or not there is a treaty, whether or not that has been invoked, the processes, and what is the outcome of that invocation in Australia.

To test that proposition, if extradition was sought and refused under a treaty procedure by Australian courts, would the Minister be entitled nevertheless to revoke the visa? Would the fact that extradition is refused be a relevant consideration that ought to be brought to his attention or not? If the answer is that he would not be entitled in that situation, it would be an error to do so whether or not it was disclosed, then why allow the Minister to do so when there is no proper basis for assessing the allegation or the nature of the alleged offence. Is the offence known to Australian law, for instance - does not appear on the face of the record - or assurance of due process. Extradition treaties are normally entered into with countries where those assurances have been investigated.

If the Minister is allowed to revoke the visa even if extradition has been refused, the Executive decision that the Minister makes would not be accountable in the same way that an extradition decision is and is that a proper width of power to be allowed to the Executive when a treaty is not in place, and may not be in place for good reason. We would respectfully submit that the whole interaction of what the Minister ought to be told about extradition when the effect of the visa has the same - the revocation has the same effect as an extradition - ought to be disclosed to the Minister, and it is also a question of public importance, we would respectfully submit, whether the Minister is even entitled in that situation, if extradition has been refused, or if there is no treaty to exercise this power.

The next matter, we would say, which was an error in the process is that it was submitted that there was clear material available, which is set out in some detail in the summary of argument, that one could infer, even from the material on the record, an ulterior purpose, a collateral or extraneous purpose, one not permitted under Schlieske, the Schlieske decision for Migration Act decisions to have a backdoor extradition. The Full Federal Court rejected that view on appeal from Justice Tamberlin and said even if the inferences were made out for which the applicant submitted, that is the inferences from the facts, there was an ulterior purpose, it was necessary for the applicant to show, to establish that that was the purpose in making the decision, that there was no other purpose open to the decision-maker. In other words, there was no other ground on which the decision might have been made. We respectfully submit that that test is too high. It is a matter that should be reviewed by this Court, and it is a matter of public importance in the process.

The Full Federal Court, when looking at the character test under section 501(6)(c)(ii) in the Migration Act held that it was permissible for the Minister to take into account when assessing past conduct investigations and allegations of criminal offences as opposed to convictions, and we respectfully submit that that is a question of public importance, whether the Minister is entitled to take those processes, those matters into account.

I notice the time is running out and if I could just deal briefly with the other matters.

McHUGH J: Yes.

MR BURTON: We would respectfully submit it is also a process matter and a matter of public importance that the Court determine what degree of particularity or specificity needs to be provided in the decision record. For instance, there has been criticism in every level of every court by my client and his advisors of three matters in this decision record: the comments on conduct while the applicant is in Australia and, whether there was enough disclosure of whether there was good conduct or bad conduct, and the absence of any reference to his compliance with the criminal law in Australia and with the migration law; the absence of assessment of the degree of risk. There is simply a statement that he is at risk of committing similar acts in Australia without any assessment of the degree of risk there; and the absence of any reference to the seriousness for him of the consequences of non-disclosure of the protected information when he was making his original set of 501C representations to have the decision reviewed and revoked by the Minister.

It is simply a reference to there is a risk in the decision record. There is no reference to the degree of seriousness of that risk, which is a different point, we would respectfully submit, to the one that this Court decided in Patterson on the misleading nature of the statement. There is also, as subsidiary matters, which again, are matters of process, whether the two decisions are one decision or two, that is the original decision and the decision on the representation and, finally, there is a discrete point in relation to the refusal to impose a condition on the stay granted to the Minister pending appeal and this raises, although it is an interlocutory matter, with respect, it raises important questions because Justice Lindgren who decided the matter held that the Minister had clear power to allow this gentleman to go back into the community. The Minister could grant a bridging visa while the matter was thrashed out, and that was a power under the Act, but that there was a regulation, Regulation 2.25, which precluded that. So in a sense it is the tail wagging the dog, if I can put it very bluntly and colloquially, and the interaction between that regulation and the section in an Act which gives the power to make the regulation is a matter of public importance, and indeed, the liberty of this gentleman.

McHUGH J: Thank you, Mr Burton. We need not hear you, Mr Basten.

These five applications for special leave to appeal are brought to challenge orders made in two judgments of the Full Court of the Federal Court of Australia. Those judgments relate to two decisions of the Minister. The first decision was a refusal to grant a student visa under section 501(3) and section 501(6)(c)(ii) of the Migration Act 1958 (Cth), on the grounds that the Minister reasonably suspected that the applicant’s past general conduct made him not of good character and that refusal of the visa was in the national interest. The second decision was a refusal by the Minister to revoke the first decision.

The applicant has raised several points repeatedly in proceedings before several Federal Court judges and in the two Federal Court appeals, for example, that the Minister had failed to take into account the applicant’s good character since his arrival in Australia, that the Minister was activated by an ulterior purpose, and that the Minister could not rely on the national interest in the absence of emergency or exceptional circumstances. The repetition of these points in turn raise questions of construction of the Act and of abuse of process.

The applicant also claims that the Federal Court erred in holding and applying the Anshun principle in an administrative law proceeding, to his detriment. He also raises the question whether the admissibility of fresh evidence in an appeal in this Court, having regard to the principles in Mickelberg and Eastman, apply in appeals in this Court from proceedings in its original jurisdiction and whether the decision record in this case stated with sufficient precision the facts relied on by the Minister.

Despite the assistance we have had from the careful arguments of Mr Burton, we are of the opinion that there are insufficient prospects of the applicant demonstrating error in the judgments containing the orders complained of to justify the grants of special leave to appeal. Accordingly, the applications must be refused with costs.

The Court will now adjourn to reconstitute.

AT 1.06 PM THE MATTERS WERE CONCLUDED