CATCHWORDS
PRACTICE AND PROCEDURE - immigration - judicial review of decision to refuse permanent entry visa - application to strike out - abuse of process - tendency to cause prejudice, embarrassment or delay - vexatious application - no reasonable basis for application - res judicata - issue estoppel
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Regulations 1989 reg4(1)
Chu v Minister for Immigration, Local Government, and Ethnic
Affairs (1993) 45 FCR 540
Blair v Curran (1939) 62 CLR 464 at 531
Ramsay v Pigram (1968) 118 CLR 271 at 276
Henderson v Henderson (1834) 3 Hare 100 at 115
Port of Melbourne Authority v Anshun Proprietary Limited
(1981) 147 CLR 589 at 598
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs apptd - in liq) (1993) 115 ALR 377 at 401
No. WAG 115 of 1994
CHU SING WUN v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Branson J.
Perth
11 April 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 115 of 1994
)
GENERAL DIVISION )
B E T W E E N:
CHU SING WUN
Applicant
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
MINUTES OF ORDER
CORAM: Branson J
PLACE: Perth
DATE: 11 April 1995
THE COURT ORDERS THAT:
1. The Notice of Motion dated 13 January 1995 is dismissed.
2. The respondent (applicant on the Notice of Motion) is to pay the applicant's costs of the Notice of Motion to be taxed if not agreed.
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 ) No. WAG 115 of 1994
)
GENERAL DIVISION )
B E T W E E N:
CHU SING WUN
Applicant
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
REASONS FOR JUDGMENT
CORAM: Branson J
PLACE: Perth
DATE: 11 April 1995
The applicant has sought judicial review of a decision of the Minister for Immigration and Ethnic affairs ("the Minister") by his delegate made on 20 September 1994 that the applicant's application for a permanent entry visa (Class 122) be refused. The respondent has filed a notice of motion seeking to strike out the present application for judicial review on the ground that it is an abuse of the process of the Court, has a tendency to cause prejudice, embarrassment or delay in the proceedings, is vexatious, discloses no reasonable basis for the application, and on the grounds of res judicata and issue estoppel.
I accept that the Court has the power to order that parts of an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 for an order of review be struck out (Whim Creek Consolidated NL v Colgan (1989) 88 ALR 83 at 85-86. No argument to the contrary was put to me.
The applicant has previously sought judicial review of a decision of 30 October 1994 of the Minister to refuse an application by him for a permanent entry visa (Class 122). The decision of Beaumont J of this Court on that application for judicial review is reported as Chu v Minister for Immigration, Local Government, and Ethnic Affairs (1993) 45 FCR 540. His Honour set aside the decision of 30 October 1994 and remitted the matter to the respondent for determination according to law. It is by reason of the determinations of fact and law made by Beaumont J on that application that the present motion is brought. To express the case of the respondent in summary form, the respondent asserts that the present application is an abuse of the process of the Court in that the application is seeking to relitigate matters decided adversely to him by Beaumont J.
The history of the earlier proceedings is set out in the report of the decision of Beaumont J. Following His Honour's remittal of the matter to the Minister for a fresh determination the matter was referred to a different delegate of the Minister with a draft recommendation by an Officer of the Migration Office, Australian Consulate General, Hong Kong. A copy of the draft recommendation was given to the applicant on 30 May 1994 and he was invited to provide a written response to the draft recommendation within 14 days. A long letter of response dated 14 June 1994 was provided on the applicant's behalf by Business Migration Services Pty Ltd of Perth.
A letter dated 20 September 1994 from the delegate of the Minister to the applicant advised him of the decision of the delegate. The letter states as follows:-
"Following consideration by the Federal Court of Australia, the file was remitted back to this Office for reconsideration of the decision to refuse your application for migration.
The application has been given careful re-consideration. I have to inform you that I have taken the decision to refuse your application to migrate to Australia on the grounds that the good character requirement has not been satisfied."
At the time of each of the decisions of 30 October 1992 and 30 September 1994 the "good character requirement" for an Australian visa was contained in regulation 4(1) of the Migration Regulations 1989.
At the relevant times reg4(1) provided as follows:-
"For the purposes of these Regulations, a person is to be taken not to be of good character if:
(a) in the case of an applicant for a visa or an entry permit of any class:
(i) the applicant has been assessed by the competent Australian authorities to be a risk to Australian national security; or
(ii) the applicant:
(A) has at any time been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year; or
(B) has at any time been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling not less than one year; or
(C) has at any time been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while the person was of unsound mind; or
(D) has been deported from another country; or
(E) has been excluded from another country in the circumstances prescribed for the purposes of subparagraph 20(1)(d)(vi) of the Act; or
(iii) the applicant has, in the reasonable belief of the Minister, been involved in activities indicating contempt, or disregard, for the law or for human rights; and
(b) in the case of an applicant for an entry visa having effect as a permanent entry permit, or for a permanent entry permit - the applicant has at any time been convicted of an offence (other than an offence referred to in paragraph (a)) in circumstances indicating, in the reasonable belief of the Minister, habitual contempt, or disregard, for the law or for human rights."
Both on the application considered by Beaumont J and in these proceedings the applicant has asserted that he was denied natural justice in the determination of his application for a visa. Ground 1 of the application for review considered by Beaumont J ("the previous application") was as follows:-
"1. Denial of natural justice - Section 5(1)(a) of the Administrative Decisions (Judicial Review) Act ("the Act")
A. In making the decision the Respondent by his delegate took into account and placed reliance upon:-
(a) General information concerning the nature of triad activity and organised crime in Hong Kong;
(b) Information supplied by unidentified informants to the effect that:-
(i) the Applicant is recorded by relevant authorities as an associate of known criminals, known triads and convicted drug traffickers;
(ii) the Applicant was strongly implicated as being directly involved in criminal activity;
(iii) in the view of some unidentified person alleged to be "confidential and expert", on the balance of probabilities the applicant was involved in organised criminal activity;
(iv) a business in which the Applicant has an interest - the Silver Spring Sauna in Kowloon has triad involvement;
(v) another business in which the Applicant has an interest, the Chequers Health Centre in Sydney, is run by Chinese persons suspected of being involved in drugs and is frequented by a wide cross-section of the organised crime community in Sydney.
(c) A policy to the effect that in the case of
doubt as to the character of a visa applicant, the Applicant would be assumed
to be not of good
character;
none of which were made known to the Applicant prior to the decision and in respect of which the Applicant had no or no reasonable opportunity to place evidence or submissions before the Respondent prior to the decision being made.
B. The Respondent by his delegate was biased against ethnic Chinese with business interests in saunas and health centres in that he was ready to assume that such persons are likely to be involved with other persons of Chinese ethnic origin in organised crime and triad activities."
It was argued on behalf of the applicant before Beaumont J that in making the decision then under review the decision maker took into account adversely to the applicant matters specified in paragraph 6 of a certain Departmental report without affording the applicant an opportunity to deal with them. The matters specified in paragraph 6 of that report were as follows:-
"Confidential information has been received from confidential sources on a number of occasions since 1985 which, on the basis of intelligence, indicates that:
· Mr Chu is well recorded by relevant authorities as a associate of known criminals, known triads and convicted drug traffickers;
· Mr Chu is strongly implicated as being directly involved in criminal activity;
· in the view of the confidential and expert source it is likely that on the 'balance of probabilities' Mr Chu is involved in organised criminal activity;
· unconfirmed intelligence indicates that the Silver Spring sauna has Triad involvement;
· the Chequers Health Centre in Sydney, of which Mr Chu is part owner, is run by Chinese who are suspected of being involved in drugs and is frequented by a wide cross section of the organised crime community in Sydney."
[45 FCR pp 544-5)
As Beaumont J noted the applicant had in the earlier proceedings unsuccessfully sought access to the "confidential information" referred to in paragraph 6. The determination that such information was the subject of public interest immunity has not been the subject of an appeal by the applicant.
As to ground 1 of the previous application Beaumont J, after considering the material which was provided on behalf of the Minister to the applicant or which was otherwise known by him said:-
"In my opinion, the foregoing material, taken as a whole, afforded the applicant an adequate opportunity to deal with the matters mentioned in par 6 of the Departmental report. In my view, this material fairly put the applicant on notice that the respondent was giving consideration to the question whether he should form a belief as to the character of the applicant, by virtue of the information received by the respondent, to the effect that the applicant was involved in criminal activity and associated with organised crime, as stated in par 6 of the report. Not only was the applicant put on notice of these matters, but he was also invited to respond to the adverse suggestion put to him. In these circumstances, the whole process was, I think, procedurably fair ..... I reject this suggested ground of judicial review." (at pp 546 and 548)
As mentioned above, in the course of the fresh determination of the applicant's application for a permanent entry visa (Class 122) the applicant was provided with a copy of a draft recommendation to the Minister's delegate. The following material is taken from the draft recommendations:-
"4. In respect of the character requirement, I note that Mr Chu has presented a Hong Kong police certificate which shows that he has the following convictions:
. 13.10.64 Possession of Chi Fa fine $100
Lottery ticket
. 17.10.64 Possession of Chi Fa fine $100
Lottery ticket
. 7.12.64 Possession of Chi Fa fine $100
Lottery ticket
. 15.12.64 Possession of Chi Fa fine $500
Lottery ticket with a
view to sale
. 26.4.65 Possession of Tse Fa fine $1000
lottery ticket
. 21.10.68 Keeping a common gaming fine $250
house
. 31.1.75 Writing Tse Fa fine $500
. 26.7.76 Keeping a common gaming fine $3000
house
5. On a number of occasions officers at this post have received confidential briefings from experts in triad-related activities and crime prevention which have included the following general contextual information about the nature of triad and organised crime in Hong Kong:
. the presence of triads in Hong Kong pervades all levels of society and all walks of life;
. the entertainment industry, including film making, karaoke and other leisure clubs, saunas and massage parlours, mahjong schools and other gambling outlets, and a number of a large international hotels, are commonly under the control or protection of Triad societies, especially those enterprises in Kowloon;
. it is not uncommon for triad members or associates when they were young to have had one minor or series of minor convictions for illicit activities such as gambling and standover tactics.
6. Confidential information has been received from confidential sources on a number of occasions since 1985 which, on the basis of intelligence, indicates that:
. Mr Chu is well recorded by relevant authorities as a associate of known criminals, known Triads and convicted drug traffickers;
. Mr Chu is strongly implicated as being directly involved in criminal activity;
. in the view of the confidential and expert source it is likely that on the "balance of probabilities" Mr Chu is involved in organised criminal activity;
. unconfirmed intelligence indicates that the Silver Spring sauna has Triad involvement;
. the Chequers Health Centre in Sydney, of which Mr Chu is part owner, is run by Chinese who are suspected of being involved in drugs and is frequented by a wide cross section of the organised crime community in Sydney.
7. The confidential information acknowledges that Mr Chu's activities have not resulted in any further convictions beyond those listed in paragraph four above.
8. Representations were made to the Regional Migration Director on behalf of Mr Chu by Mr Robert Ho, of Sydney, on 23 July 1991. Representations were also made on a number of occasions by Mr Ho to the Australian Federal Police representatives in Hong Kong including on the occasion of 21 August 1991 when Mr Chu and his wife were present. These representations essentially involved the offer by Mr Chu to supply information on triad-related activities of which he was aware in return for consideration of the grant of migrant visas to him and his family."
As Mr Owen-Conway QC, senior counsel for the respondent pointed out the draft recommendation provided to the applicant no new information of significance.
The applicant was given a period of 14 days within which to provide a written response to the draft recommendation. A long letter of response was provided on the applicant's behalf by Business Migration Services Pty Ltd of Perth. In the course of that response a request was made on behalf of the applicant for particulars of the allegations against him. The author of the letter of response stated:-
"... despite repeated requests to your Department, Mr Chu remains no better equipped to respond to the allegations of illegal activity made against him than when he made this application in October 1991. The comments of Justice Beaumont in his findings of October 1993 (pages 10-12) are acknowledged, but with respect, it is not claimed that Mr Chu has little or no understanding of the broad nature of the allegations. It is one thing for him to know broadly what is alleged, but his understanding falls far short of having sufficient particulars of the allegations to be able to demonstrate that they are untrue.
This is the situation in which Mr Chu finds himself. He has told the Department that none of the allegations is true but he is powerless to demonstrate this because of (a) the impact of that confidential information upon the mind of Departmental officers and (b) he does not know the specifics of claims made against him, who the Triad members and criminals are with whom he is said to associate, the basis of the claim that Triad members and/or 'drug' criminals are participants in his businesses, and the illegal activities in which he is said to be directly implicated. In the absence of sufficient indication of the allegations and objections raised against him such as to enable him to answer them, they remain simply incontestable and unchallengeable."
Further information was not provided to the applicant, or his agent, as requested in the above letter.
Ground 1 of the present amended application for an order of review ("the current application") has much in common with ground 1 of the previous application. However, whereas in the previous application it was asserted that the matters listed in subparagraphs (a) (b) and (c) of ground 1 were not made known to the applicant and that he had no or no reasonable opportunity to place evidence or submissions in respect of them before the respondent prior to the decision being made, in the present application I take the gravamen of the complaint as to denial of natural justice to be found in the present paragraph C. Paragraph C is in the following terms:-
"C. The applicant had a legitimate expectation that, to the extent full disclosure of the information held by the Respondent may have revealed sources properly to be kept confidential, the Respondent would have afforded him a reasonable alternative means of addressing the accuracy, reliability and weight of the relevant material, and responding to it, which legitimate expectation was denied by the Respondent's failure to afford any such alternative."
That is, on the previous application the grounds upon which it was asserted that the applicant had been denied natural justice were first the alleged failure to make known to the applicant matters taken into account by the decision maker and secondly the alleged bias of the decision maker against ethnic Chinese with business interests in saunas and health centres. On the present application the complaints with respect to procedural fairness relate to an alleged failure to provide sufficient particulars of matters taken into account by the decision maker. In particular a legitimate expectation that such particulars would be provided is asserted. The evidence upon which the applicant will seek to support his allegation of a legitimate expectation is not yet before the Court. It may be that such allegation will be based on conduct of one or other or both of the parties later than the date of the decision of Beaumont J.
The respondent rightly abandoned at hearing any reliance on the principle of res judicata. Reliance was principally placed on the principle of issue estoppel. Issue estoppel has been held to have application in relation to applications under the Administrative Decisions (Judicial Review) Act 1977 (Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342).
In Blair v Curran (1939) 62 CLR 464 at 531-532 Dixon J stated:-
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
Barwick CJ put the matter this way in Ramsay v Pigram (1968) 118 CLR 271 at 276:-
"Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. Of its nature such an estoppel must be available to and operative in respect of each party; or, as it is said, estoppels must be mutual."
In my view it cannot be said in this case that there is an issue estoppel which precludes the applicant from seeking a determination of ground 1 of the current application. The judicial determination of Beaumont J with respect to the allegation of denial of natural justice in the previous application did not directly involve the same issues of fact and of law as are raised by the allegation of denial of natural justice in the current application. Put another way, the issue determined by Beaumont J with respect to the allegation of a denial of natural justice made in the previous application is not identical with the issue with respect to the allegation of a denial of natural justice raised in the current proceedings.
For the above reasons it follows, in my view, that the principle in Henderson v Henderson (1834) 3 Hare 100 at 115 has no application with respect to the current application. The principle of Henderson v Henderson was expressed by Sir James Wigram VC in the following terms (as cited by Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 598):-
"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
The current application is not the same matter as that which was the subject of the litigation before Beaumont J. It is based on a different cause of action. There is no risk of conflicting judgments resulting. The precise issues decided by Beaumont J on the previous application are not as a matter of law the issue raised by the current application (Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs apptd - in liq) (1993) 115 ALR 377 per Burchett J at 401-405).
Is ground 1 of the current application nonetheless an abuse of the process of the Court as having a tendency to cause prejudice, embarrassment or delay or as being vexatious and/or disclosing no reasonable basis for the application? In my view it is premature to seek to answer this question. The applicant has not yet placed before the Court the evidence upon which he proposes to rely with respect to his grounds of application. There was a period of time between the decision of Beaumont J in October 1993 and the making of the decision of the respondent here sought to be reviewed in September 1994. It is accepted that there was some communication between the applicant and the respondent's delegate during that period. Although it might fairly be expected that the submissions which will ultimately be put to the Court in respect of ground 1 of the application will be at least in part repetitive of arguments put before Beaumont J, I am not satisfied that ground 1 of the present application is an abuse of the process of the Court or doomed to failure.
I decline to strike out ground 1 of the current application.
I turn to consider ground 2 of the current application. It alleges that in making the decision of 20 September 1994 the respondent by his delegate took into account and placed reliance upon certain matters which are irrelevant to the proper consideration of the application. The matters identified in the ground were all referred to in ground 2 of the previous application where it was similarly alleged that they (along with one other matter) were taken into account and relied upon by the respondent by his delegate when they were irrelevant to the proper consideration of the application.
Beaumont J found that ground 2 of the previous application was not made out. He did this by reading as a whole the Departmental report with respect to the previous decision to understand the process of reasoning contained therein. In this case there was a fresh Departmental report before a different delegate of the respondent. For the same reasons as are set out above with respect to ground 1 I conclude that there is no issue estoppel which precludes the applicant from seeking a determination of ground 2 of the current application. I have already concluded that the principle in Henderson v Henderson (above) has no application to the present application.
With some hesitation I have also formed the view that as the applicant has not yet put forward the evidence upon which he relies in support of his application that it is premature to determine whether the ground is otherwise an abuse of process or doomed to failure as disclosing no reasonable cause of action.
I decline to strike out ground 2 of the current application.
Ground 3 of the present application has no equivalent in the previous application. It alleges a failure in the respondent by his delegate to take into account relevant considerations. It is submitted on behalf of the respondent that the matters raised by the ground were nonetheless canvassed before Beaumont J or alternatively they ought to have been so canvassed having regard to the principle in Henderson v Henderson. For the reasons set out above I do not consider that the principle in Henderson v Henderson has any application in this case. The reasons for decision of Beaumont J with respect to the previous application do not deal expressly with the matters raised in ground 3 of the current application. In my view there is no issue estoppel as to ground 3 of the current application. I do not consider that ground 3 is otherwise an abuse of process or doomed to failure as disclosing no reasonable cause of action.
I decline to strike out ground 3 of the current application.
Ground 4 of the current application alleges that in making the decision of 20 September 1994 the respondent by his delegate made certain errors of law. Two of the alleged errors of law were included as part of ground 3 of the previous application. Four of them were not. In dealing with ground 3 of the previous application Beaumont J paid attention to one only of the alleged errors of law in concluding that the ground of judicial review was made out. It is open to be implied that he did not consider that the others had substance. However he did not expressly so find and it was not open to him expressly to deal with the matters included in ground 4 of the current application which were not included in the previous application.
In my view there is no issue estoppel as to ground 4 of the current application. I do not consider that it is otherwise an abuse of process or doomed to failure as disclosing no reasonable cause of action.
Grounds 5 and 6 of the current application are in identical terms to grounds 4 and 5 of the previous application except for the fact that ground 6 of the current application is particularised. Grounds 4 and 5 of the previous application were abandoned before Beaumont J. This was apparently because of the applicant's inability to gain access to the "confidential information" which had been held to be the subject of "public interest immunity". Beaumont J did not rule on the grounds. I am not prepared to assume that the course of the hearing of the present application will necessarily be the same as that before Beaumont J. I cannot guess what applications may be made to the trial judge. I do not consider that counsel for the applicant on the hearing will be bound by the tactical steps taken by counsel for the applicant on the previous hearing. In my view it is premature to rule on whether grounds 5 and 6 should be struck out.
I decline to strike out grounds 5 and 6 of the current application.
Ground 7 of the current application is new. No similar ground appeared in the previous application. It is suggested to be an abuse of process by reason of the principle in Henderson v Henderson. For the reasons given above I do not consider such principle to have any application in this case.
I decline to strike out ground 7 of the current application.
The Notice of Motion dated 13 January 1995 will be dismissed with costs.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice Branson.
Associate:
Dated:
Counsel for the Applicant Mr L W Roberts-Smith QC
(the Respondent on the with him
Notice of Motion): Mr A J Goldfinch
Solicitors for the Applicant: Finlay Phillips
Counsel for the Respondent Mr S Owen Conway QC
(the Applicant on the with him
Notice of Motion): Mr S Bhojani
Solicitors for the Respondent: Australian Government Solicitor
Hearing Date: 29 March 1995
