FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Migration - Application for permanent visa under Business Migration Program refused by delegate - Application for review successful on one ground only - Matter remitted to delegate for reconsideration - Application again refused - Application for review on grounds rejected on earlier review - Whether abuse of process - Refusal preceded by report recommending refusal - Delegate accepted recommendation - Whether to be inferred that delegate’s reasons those contained in report - Natural justice - Decision based on information about applicant’s criminal connections contained in confidential reports - Reports privileged from disclosure - Whether summary of information sufficient to draw applicant’s attention to case against him - Inspection of reports by court - Bias - Reasonable apprehension - Application to administrative decisions.

Migration Regulations 1989 reg 4(1)(a)(iii) and (b)

Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540

Chu Sing Wun v Minister for Immigration and Ethnic Affairs (Branson J, 11 April 1995, unreported)

Chu Sing Wun v Minister for Immigration (1995) 39 ALD 328

Mann v Mann (1957) 97 CLR 433

Irving v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 529

Citibank Ltd v Commissioner of Taxation (1988) 88 ATC 4,714

Surinakova v Minister for Immigration and Ethnic Affairs (1991) 33 FCR 87

Plattara v Minister for Immigration and Ethnic Affairs (1991) 29 ALD 469

Ju Shang Zia v Minister for Immigration and Ethnic Affairs (1991) 27 ALD 668

Walton v Gardiner (1993) 177 CLR 378

Rogers v The Queen (1994) 181 CLR 251

Roser v Immigration Review Tribunal [No 2] (1992) 29 ALD 182

Lessur - Millar (1990) 47 A Crim R 111

Hunter v Chief Constable of the West Midlands Police [1982] AC 529

Air Canada v Secretary of State for Trade [1983] 2 AC 394

Alister v The Queen (1984) 154 CLR 404

Burmah Oil Co Ltd v Bank of England [1980] AC 1090

Sankey v Whitlam (1978) 142 CLR 1

Church of Scientology of California v Department of Health & Social Security [1979] 1 WLR 723

Reg v Gaming Board; Ex parte Benaim [1970] 2 QB 417

Minister for Immigration v Kurtovic (1990) 21 FCR 193

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24

Li Shi Ping v Minister for Immigration (1994) 35 ALD 225

Livesey v New South Wales Bar Association (1983) 151 CLR 288

 

 

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179

Century Metals and Mining NL v Yeomans (1989) 100 ALR 383

Webb v The Queen (1994) 181 CLR 41

Minister for Immigration v Mok (1994) 55 FCR 375

Reg v Watson; Ex parte Armstrong (1976) 136 CLR 248

Huluba v Minister for Immigration (1995) 59 FCR 518

Gascor v Ellicott [1997] 1 VR 332

Re JRL; Ex parte CJL (1986) 161 CLR 342

Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 565

Williams v Spautz (1992) 174 CLR 509

Lloyd v Costigan (1983) 62 ALR 284

Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78

Kioa v West (1985) 159 CLR 550

CHU SING WUN v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

WAG 32 of 1997

CARR, KIEFEL & SUNDBERG JJ

PERTH

19 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 32  of   1997
GENERAL DIVISION

 

 

BETWEEN:	CHU SING WUN Appellant
AND:	THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

 

 

JUDGES:	CARR, KIEFEL & SUNDBERG JJ
PLACE:	PERTH
DATED:	19 SEPTEMBER 1997

 

MINUTE OF ORDERS

THE COURT ORDERS THAT:

 

1.         The appeal be dismissed.

            2.         The cross‑appeal be allowed.

3.         The orders made on 24 February 1997 be set aside and, in lieu thereof, the application for an order of review be dismissed with costs.

4.         The appellant pay the respondent’s costs of the appeal and the cross-appeal.

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	)           WAG 32 of 1997
GENERAL DIVISION	)

 

 

BETWEEN:	CHU SING WUN Appellant
AND:	THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

 

JUDGES:	CARR, KIEFEL & SUNDBERG JJ
PLACE:	PERTH
DATED:	19 SEPTEMBER 1997

 

REASONS FOR JUDGMENT

CARR and SUNDBERG JJ:

INTRODUCTION

This is an appeal and a cross-appeal from orders made by a judge of this Court, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), setting aside a decision of the respondent made on 12 September 1994 and remitting the matter to him for determination according to law.

BACKGROUND

The applicant is a resident of Hong Kong who seeks a permanent visa (Class 122) to enter Australia under the Business Migration Program.  He has made three applications to this Court for review of the respondent’s decisions, and each application has been successful.  The first application, filed in March 1992, was resolved by consent on the basis that the respondent would review the decision to refuse the visa sought by the applicant.  Upon such reconsideration, the visa application was again refused (“the 1992 decision”).  The applicant lodged an application to review the 1992 decision (“the second application”).  After hearing the second application, Beaumont J held that the respondent’s delegate had erred in law when giving effect to reg 4(1)(a)(iii) of the Migration Regulations 1989 (Cth).  That sub-regulation deems an applicant not to be of good character if he or she has, in the reasonable belief of the Minister, been involved in activities indicating contempt or disregard for the law or for human rights.  The error identified by Beaumont J was the application of the sub-regulation upon the basis that there was a policy that, where there were doubts about the application of the sub-regulation, “greater weight should be given to the interests of the Australian community”.  His Honour found that that error was also capable of having influenced the delegate’s decision under reg 4(1)(b).  That sub-regulation is concerned with convictions for offences in circumstances indicating, in the reasonable belief of the Minister, habitual contempt or disregard for the law or for human rights.  Beaumont J set aside the 1992 decision and remitted the matter to the respondent for determination according to law: Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540.  On 12 September 1994 the respondent’s delegate made a decision to refuse the application (“the 1994 decision”).  On 17 October 1994 the applicant applied to this Court for an order of review of that decision (“the third application”).  On 11 April 1995 Branson J dismissed a motion by the respondent to strike out the application on the ground that it was an abuse of process and on other like grounds: Chu Sing Wun v Minister for Immigration and Ethnic Affairs (11 April 1995 unreported).  Subsequently Carr J granted the applicant leave to re-amend his application, but dismissed his motion for an order that the respondent disclose to him particulars contained in certain confidential material in respect of which the respondent had claimed public interest immunity: Chu Sing Wun v Minister for Immigration (1995) 39 ALD 328.  The respondent had maintained such a claim successfully before French J at an interlocutory stage of the proceedings in the second application.  At that stage French J inspected the confidential material and said in the course of his reasons:

“The question whether non-disclosure of the relevant detail to the applicant constituted a denial of natural justice is necessarily related to considerations of the kind underlying the claim for public interest immunity.  If the confidential material is not disclosed then the question whether there has been a denial of natural justice may well fall to be determined without reference to the content of that material except so far as it is apparent from evidence on the public record.  That, however will be a matter for the trial judge.”

 

PROCEEDINGS AT FIRST INSTANCE

On the hearing of the third application the applicant challenged the 1994 decision on the following bases:

 

1.             There had been a denial of natural justice.

2.             The decision-maker took into account irrelevant considerations.

3.             The decision-maker failed to take into account relevant considerations.

4.             There was error of law in the making of the decision.

5.             There was no evidence to support the decision.

6.             The decision was unreasonable in the administrative law sense.

7.             The manner in which the decision was made constituted an abuse of power.

 

The learned primary judge first dealt with a submission from the respondent that so much of the application as relied upon denial of natural justice, taking into account irrelevant considerations, no evidence and unreasonableness be struck out.  The respondent contended that these matters were or should have been dealt with in the proceedings before Beaumont J.  The respondent also contended that issue estoppel arose out of those proceedings in relation to the grounds of no evidence and unreasonableness, which had been abandoned before Beaumont J.  The learned primary judge expressed the view that if raising those grounds was not an abuse of process then no issue estoppel arose.  Rather than deal with the respondent’s strike-out application as a preliminary matter, his Honour chose to examine the substance of the case, to consider what additional evidence was relevant to the 1994 decision, and then return “to the submissions on abuse only if necessary”.  His Honour then referred to evidence of matters which occurred after Beaumont J’s decision on 19 October 1993.  We set out below his Honour’s summary of those matters:

“(1)     On 26 October 1993 Business Migration Services wrote on behalf of the applicant to the respondent requesting further details of the allegations “summarised at par6 of Mr [Callanan’s] memorandum of 30 October 1992 to the First Assistant Secretary, Entry, Compliance and Systems Division” (referred to in Beaumont J’s reasons as “the Departmental report” and referred to here as “the 1992 Departmental report”).  No information was provided.

(2)       A file note (“the file note”) dated 3 November 1993 by an unidentified person recorded a note of a conversation to a person on 29 October.  It is not disputed this is a reference to 29 October 1993.  The relevant portion of the file note states:

 

“She had seen press report of court decision and reached the view that decision was proved to [be] wrong “on a technicality”, ie not “morally wrong”.  She anticipated that we would again refuse case.

I told her that we were of the same view...”

(3)       By letter dated 30 May 1994 Mr T Maguire, the Senior Migration Officer from the Australian Consulate General, Hong Kong Migration Office (“the Departmental officer”), sent the applicant a letter enclosing a draft of a submission (“the draft 1994 Departmental report”) which he stated would form the basis for the decision on the reconsideration of the applicant’s application.  The draft 1994 Departmental report was in substantially the same form as the 1992 Departmental report.

 

(4)       On 14 June 1994 Business Migration Services forwarded a response (“the agent’s submission”).  Included in the response was the assertion that the draft completely disregarded the evidence of Mr Ho in an affidavit sworn on 28 January 1993 and filed in the proceedings before Beaumont J (“the Ho affidavit”).  The agent’s submission stressed it was crucial that the Ho affidavit be examined in some detail.

 

(5)       On 3 August 1994 the Departmental officer settled the 1994 Departmental report to the Regional Migration Director and signed it.  Apart from minor amendments, the submission added reference to advice that Ho and the applicant had known each other since April 1990 and referred to the submission of the applicant’s agent dated 14 June 1994, directing attention to it.  In one respect the document remain unamended - namely, no adjustment was made to the period of time which had elapsed between the commission of the applicant’s last criminal offence and the date on which his application was being reconsidered.  Under the heading “reasons for the decision” consideration was given to the application of Migration Regulation 4(1)(b) and then reg4(1)(a)(iii).  In it he recommended the Director:

·                determine the applicant was not a person of good character by virtue of regs4(1)(a)(iii) and (b);

 

·                determine therefore he did not meet the “good character” requirement of the Public Interest Criteria at reg2;

·                did not exercise his discretion to waive the “good character” requirement under reg143;

 

·                refuse the applicant’s application for a Class 122 visa.

Then followed the following endorsement:

Recommendations accepted/rejected

Application approved/refused

Arja Keski-nummi

                                    Regional Migration Director

                        August 1994

            12 September 1994

(6)       On 20 September 1994 the delegate wrote to the applicant advising that after careful reconsideration “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”.

 

His Honour drew the inference that the reasons for the delegate’s decision were those set out in the 1994 Departmental report.  His Honour gave detailed reasons for drawing that inference and for rejecting submissions from the respondent that he should not do so.  The respondent brings a cross-appeal in respect of that part of his Honour’s decision.  The primary judge found that all of the issues raised on behalf of the applicant in relation to the application of reg 4(1)(a)(iii) of the Migration Regulations had been the subject of prior determination by Beaumont J, save for anything which might arise as a new matter from the agent’s submission.  In that regard his Honour said:

 

“The fresh aspect raised by that submission was the need for the delegate in the making of the 1994 decision to take into account the affidavit of Ho sworn on 28 January 1993.  That affidavit was not before the delegate who made the 1992 decision.”

 

The case before the primary judge was conducted on the basis that Mr Ho’s affidavit was not before the delegate who made the 1994 decision.  That delegate had before her the agent’s submission which contained a summary of Mr Ho’s affidavit together with other material.  His Honour held that the respondent’s delegate had failed properly to take into account Mr Ho’s affidavit.  His Honour’s conclusions were expressed in these terms:

 

“In the present case the agent’s submission directed specific attention to the Ho affidavit.  This was therefore a case where the decision-maker as a delegate of the respondent had readily available to her the affidavit said by the agent’s submission to be of critical importance in relation to the central issue for determination: Luu v Renevier (1989) 91 ALR 39 at 50. 

It is not the function of this Court to consider the effect of the Ho affidavit on the determination of the merits of the application.  It is sufficient to note the affidavit, as distinguished from the agent’s summary of it, was not before the delegate making the 1994 decision although the agent’s submission had stressed the importance of it to the applicant’s case.  In those circumstances I consider there was a failure properly to take the Ho affidavit (a relevant consideration) into account.” 

That decision forms the subject matter of the second ground of the respondent’s cross-appeal.

 

The primary judge then turned to the question of the application of reg 4(1)(b).  That regulation provides that a person is to be taken not to be of good character if:

 

“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.”

 

It was common ground that the exclusion of offences referred to in par (a) has no relevance to the present matter. 

 

His Honour noted that the paragraphs of the 1994 Departmental report which dealt with the application of reg 4(1)(b) were identical (save for one paragraph which was substantially the same) to the relevant paragraphs in the 1992 Departmental report which had been considered by Beaumont J.  Beaumont J had held at 549:

 

“Reading the report as a whole, and, specifically pars 22-29, it appears that there was material before the decision-maker, including the confidential information, on which it was open to him to form the reasonable belief that the ingredients specified in Reg 4(1)(b) existed.”

 

The primary judge stated that it would be an abuse of process to re-adjudicate the issues determined by Beaumont J, but that the additional evidence in the Ho affidavit “was capable of influencing the reconsideration of this aspect”.

 

His Honour then turned to the matter of natural justice and in particular the applicant’s complaint that the respondent’s delegate had taken into account matters adverse to the applicant without affording him an opportunity of dealing with those matters.  Those matters were set out in both the 1992 Departmental report and the 1994 Departmental report, and were as follows:

 

“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 an 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.”

 

His Honour held that as there was no additional evidence relevant to the issues upon which Beaumont J had already adjudicated, it would be an abuse of process to re-open those matters.  The appellant challenges that decision.

 

Finally, his Honour considered the applicant’s complaint that there was actual or apprehended bias when the delegate made the 1994 decision in that the decision was pre-determined.  His Honour held that there was no evidence of actual bias, but found that there was a reasonable apprehension of bias arising out of the following matters:

 

·      the high coincidence of the language in the 1994 Departmental report and the 1992 Departmental report (including a reference in both reports to sixteen years of lapsed time from the applicant’s last conviction, which by 1994 had become eighteen years);

·      the annexure of the agent’s submission to the Departmental report, devoid of comment or analysis;

·      the fact that Mr Ho’s affidavit was not itself brought before the delegate in making the 1994 decision; and

·      the existence of a file note which evidenced a view within the Department that the case should be decided as previously.  

 

His Honour concluded that error of law (a reasonable apprehension of bias) had thus been shown.  That conclusion comprises the third matter challenged by the respondent in his cross-appeal.

 

THE APPEAL AND CROSS-APPEAL

In summary, the appellant appeals against the primary judge’s refusal to re-open the matters which were decided by Beaumont J.  The respondent in his cross-appeal challenges his Honour’s decision to treat the 1994 Departmental report as evidence of the basis upon which the delegate’s decision was made, his Honour’s holdings that Mr Ho’s affidavit itself was a relevant consideration which was not properly taken into account, that the principles of reasonable apprehension of bias applied to the delegate, and that there was a reasonable apprehension of bias.  The appellant also appeals against the trial judge’s failure to deal with some of the issues raised by his application.

 

REASONS FOR 1994 DECISION

Before the primary judge the respondent submitted that there was no evidence before the Court of the delegate’s reasons for decision.  The consequence, it was said, was that the application must fail in relation to all contentions other than unreasonableness and bias.  His Honour accepted the appellant’s submission that it was proper to infer that the 1994 decision was made for the reasons set out in the 1994 Departmental report.  He said:

“the letter of advice from the delegate to the applicant advised only that the decision had been taken to refuse the application ‘on the grounds that the good character requirement has not been satisfied’.  There is nothing in the letter upon which to found any argument of adoption of the reasons in the Departmental report.  However, the Departmental Officer when forwarding the 1994 Departmental report to the applicant advised it would form the basis of the reconsideration.

Furthermore, the delegate accepted recommendations based on the reasons in the 1994 Departmental report.  It is relevant that the acceptance of the recommendation is endorsed upon the last page of the 1994 Departmental report.  It is not possible to provide to the applicant a copy of the delegate’s decision without providing to him the document upon which it is endorsed.      

In those circumstances, and in the absence of any evidence of dissent by the delegate from the reasons in the 1994 Departmental report ... I ... draw the inference that the reasons for decision of the delegate were those set out in the 1994 Departmental report.”

 

All of the material that was before the primary judge is before us, and we are in as good a position as he was to draw inferences from that material.  See, for example, Mann v Mann (1957) 97 CLR 433 at 440.

 

The delegate who on 12 September 1994 accepted the Departmental Officer’s recommendation in the 1994 Departmental report did nothing to the report other than delete the word “rejected” in the expression “Recommendations accepted/rejected” and the word “approved” in the expression “Application approved/refused”, and there is no evidence that the delegate disagreed with the reasons in the report.  This is in the context, as his Honour observed, of the respondent’s officer having sent to the applicant a letter advising him that the draft 1994 Departmental report would form the basis of the reconsideration.  In those circumstances, we consider that it was reasonably open on the evidence for his Honour to draw the inference that the delegate’s reasons for the 12 September 1994 decision were those found in the 1994 Departmental report.

 

We were invited by the respondent to follow Irving v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 529 in preference to a line of authorities which include Citibank Ltd v Commissioner of Taxation (1988) 88 ATC 4,714; Surinakova v Minister for Immigration and Ethnic Affairs (1991) 33 FCR 87; Plattara v Minister for Immigration and Ethnic Affairs (1991) 29 ALD 469 and Ju Shang Zia v Minister for Immigration and Ethnic Affairs (1991) 27 ALD 668.  We do not think it is appropriate to embark upon an analysis of those decisions.  While the question whether a particular inference is open on the evidence is one of law, the answer to that question depends inevitably upon the particular circumstances of the case.  We do not consider that his Honour erred in the manner contended by the respondent. 

 

ABUSE OF PROCESS

The appellant submitted that when Beaumont J set aside the 1992 decision and remitted the matter to the respondent for determination, the respondent was obliged to consider the matter de novo, having regard to all material facts existing at the time of the second decision and applying an independent mind to the application.  Beaumont J, so it was put, had not directed that the fresh decision would be confined to reconsideration of the only matter identified by his Honour as an error of law, although that course would have been open to him under s 16(1) of the ADJR Act.  The appellant submitted that the 1994 decision was “a completely different decision” which gave rise to a different “cause of action”.  There was, so it was contended, no risk of conflicting judgments had the primary judge proceeded to consider the grounds advanced before Beaumont J. 

 

Proceedings before a court may be an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious or oppressive for the reason that it is sought to litigate an issue which has already been disposed of by earlier proceedings: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 256, 287.  And see Roser v Immigration Review Tribunal [No 2] (1992) 29 ALD 182 at 186 and Lessur - Millar (1990) 47 A Crim R 111.  The court’s power to prevent abuse of process is not limited to cases involving improper purpose or where there is no possibility of a fair hearing: Walton v Gardiner at 395; Rogers at 255.

 

In order to assess whether it would have been an abuse of process to consider the issues which the appellant sought to raise before the primary judge, it is necessary to give detailed consideration to the issues decided by Beaumont J.  They were as follows.

 

(a)        natural justice

Paragraph 6 of the 1992 Departmental report (which is in the same form in the 1994 Departmental report and which we have set out under the heading Background) summarises the substance of the confidential information received by the Department.  In his 1992 application for review the appellant listed the information in par 6 of the 1992 Departmental report and contended that none of it had been made known to him prior to the decision, and he had had no opportunity or no reasonable opportunity to place evidence before the respondent prior to the decision being made.  Beaumont J rejected the contention.  His Honour said at 545-546:

 

“In my opinion, the history of the matter, to which reference has already been made, discloses the following:

(1)          In the letter dated 16 March 1987, the applicant was informed that his application for migration was rejected ‘because he failed to meet the character requirements for migrant entry’.

(2)          In the letter of 11 November 1991 ... seven pages of submissions were devoted to the question of ‘character assessment’.  It is not practicable to attempt now to summarise that material, which should be read as a whole.  However, it is significant, for present purposes, to note the following statements (at pp5-6) of the letter:

‘Mr Chu believes that it may have been suggested that he is either a Triad society member or that he is associated with Triad society activities and, allegedly, that it was this perception of him that contributed to the rejection of his 1986 BMP case.

There is nothing on the file documents released under the Freedom of Information Act to directly support those propositions.  Indeed a file note suggests that whatever information was held about Mr Chu it did not appear to a senior officer to constitute grounds for refusal (please see folio 110 of 86/2470).  As I understand the situation in Hong Kong, however, it is a commonly held view that Triad societies were behind certain enterprises - for example the Chi Fa (Tse Fa) lotteries.  So, by extension, anybody running a lottery must have been a member of a Triad society or associated with Triad society members.  I understand a similar view prevails towards bath houses and those who run them.

When I suggested to Mr Chu that there might be such a perception of him he was adamant that he is not, and never has been, a member of a Triad society or other criminal organisation.  Furthermore, he is adamant that he has never knowingly participated in a Triad society sponsored activity.  He tells me that he does not knowingly associate with Triad society members.’

 

(3)          On 20 December 1991, the applicant was interviewed by an officer of the Department, assisted by an interpreter.  ...  In the course of the interview, the applicant was questioned about his business interests, in particular, his sauna and massage business.  He was asked, (at pp5‑6) on several occasions, whether he had been associated with members of an ‘organised criminal organisation’.  He said that he ‘has a lot of friends and business associates who he thinks might have Triad connections’.

(4)          In the letter dated 19 February 1992, the text of which appears above, reference was made, inter alia, to ‘material linking Mr Chu with organised crime’.

(5)          In the internal memorandum dated 30 January 1992, which was provided to the applicant on 30 June 1992, it was indicated that confidential intelligence reports stated that the applicant was ‘involved in organised criminal activities’ (see par27; also pars20 and 21).

(6)          The annexed record of the interview held on 27 August 1993 indicates (eg p6) that the applicant was asked whether he had any knowledge of Triad activities in Hong Kong or Australia.  As has been noted, before the interview, the applicant had been provided with a list of 21 written questions seeking information with respect to knowledge of Triad activities.

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 suggestions put to him.  In these circumstances, the whole process was, I think, procedurally fair.”

 

His Honour thus dealt with and rejected the ground appearing in the present application as ground 1A(b).  The appellant has put forward no new material supporting his claim that he was unable to deal with the case made against him.  He has however amplified his grounds of review under the natural justice head.  After setting out the items of confidential information that had been taken into account by the delegate, the appellant asserts that the delegate also took into account

 

(c)           The allegations that the circumstances of eight offences the Applicant had been convicted of between 1964 and 1976 were suggestive of a pattern of organised behaviour that was indicative of contempt or disregard for the law.

It is then alleged  that the respondent failed to provide sufficient particulars of that confidential information and those allegations to enable the appellant to demonstrate that they are untrue or to otherwise properly respond to them.  Two further variations of this complaint are that in the absence of such particulars the delegate’s decision is “effectively incontestable and unchallengeable”, and that the appellant’s legitimate expectation that, since he could not examine the confidential information, he would be afforded a reasonable alternative means of dealing with the material, was not fulfilled.

 

The complaint about insufficient particulars is a re-statement of the substance of the complaint made in the 1992 proceeding.  The “incontestable” claim is the same complaint with a “consequence” attached to it.  The legitimate expectation claim was described by Carr J in the amendment application to which we have referred as a re‑statement of the complaint made before Beaumont J: Chu v Minister for Immigration (1995) 39 ALD 328 at 334.  That is an apt description.  Accordingly, the present application for review does not raise anything that was not raised before Beaumont J.  In our view, in the absence of any new material supporting the complaint that was fully canvassed in the 1992 proceeding, it is an abuse of process for the appellant now to seek to reopen the matter.  To permit that reopening would be unjustifiably vexatious and oppressive of the respondent.  It would also, in our view, “bring the administration of justice into disrepute among right-thinking people” - see part of the passage from Lord Diplock’s speech in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 cited with approval in Walton v Gardiner at 393.

 

The appellant submitted that there could be no abuse in the present case since no issue estoppel arose out of the earlier proceeding.  As appears from Walton v Gardiner at 295, a second proceeding can be unjustifiably vexatious and oppressive notwithstanding that the earlier proceeding does not give rise to an estoppel.

 

THE CONFIDENTIAL MATERIAL

At the hearing of the appeal, the appellant was granted leave further to amend his notice of appeal by adding the following ground:

 

2.8         “The learned trial judge erred in failing to examine the confidential material.  That was because it was not possible for him to determine whether there had been a failure to afford the appellant a fair and adequate opportunity to respond to the matters raised by the confidential material (and if those circumstances fell within one or more of the grounds contained in Section 5 [of the] Administrative Decisions (Judicial Review) Act) without knowing what was in that material.”

 

The appellant asked the primary judge to examine the confidential material.  His Honour dealt with the matter in the following passages of his reasons (at 514-515):

 

“There is no additional evidence relevant to the issues upon which Beaumont J has already adjudicated.  It would be an abuse of process to reopen those matters.

In these circumstances there is no reason for the Court to now take the opportunity of examining the confidential material.  This Court cannot second guess the judgment of Beaumont J that the particulars were adequate.  It is patent from his reasons that the contents of the confidential material were such that for the delegate to rely on it would not be unreasonable unless it was adequately answered (it being the purpose of the Ho affidavit to provide answers).”

Counsel for the respondent (in the course of addressing a different point) told us that the confidential material had been before the delegate and that she had read it.  Although it is not entirely clear from the above passage that the primary judge was under the impression that Beaumont J had read the confidential material, we think that it is appropriate and fair to draw the inference that his Honour was under that impression.  It is common ground that Beaumont J did not in fact read the confidential material.  If we are correct in drawing that inference, then the primary judge was labouring under a misunderstanding when he decided not to examine the confidential material.  The question is whether the primary judge should have examined that material.  It would seem that Beaumont J did not examine the confidential material because the applicant expressly asked him not to do so.  This was in reply to the respondent’s invitation to Beaumont J to make such an examination.  We will return to the question whether the appellant should be permitted to adopt a different tactic in this application.  It is common ground that French J examined the confidential information when, in the course of interlocutory proceedings in the second application, he dismissed the appellant’s motion that the respondent produce for inspection the documents in which that information is contained.  There was no appeal from that interlocutory judgment.  The documents sought in the course of the second application are the same as the documents which the primary judge was invited to examine at the hearing of the present matter.  Accordingly, so it seems to us, it must be accepted that public interest immunity applies to those documents.  French J decided that the immunity precluded production of the documents for inspection by the appellant.  His Honour (at p 9 of his reasons) expressly left open, as a matter for the trial judge to decide, whether the applicant’s claim that he was denied procedural fairness would fall to be determined without reference to the content of the confidential material. 

The question which we have to decide is thus a different one from that which was answered by French J.  The applicant recognises this by submitting, in effect, that the confidential information should be taken into evidence on the basis that the applicant will not have any access to it.  The Court is invited to view the material for the purposes of deciding whether its contents were adequately summarised and fairly put to the applicant in par 6 of the draft 1994 Departmental report, consistent with the public interest in protecting the respondent’s informants from risk and protecting the other interests identified when the matter was before French J.  Those other interests had been identified at an earlier stage of those interlocutory proceedings before Sweeney J as being “law enforcement, national security, international relations and proper working of Government”. 

The respondent contended that a Court should only inspect documents in respect of which privilege has been claimed where it has definite grounds for expecting to find material of real importance to the party seeking disclosure.  Counsel for the respondent relied upon Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 434-436, 438-439 and 441-443 and Alister v The Queen (1984) 154 CLR 404 at 414, 439 and 453.  In other words, the respondent asked the Court to impose an onus upon the appellant of establishing a prima facie case or that it was “on the cards” that the confidential documents contained material which would be helpful to him in establishing one or other of his grounds upon which he based his application for an order of review. 

In our view, those cases and other related cases such as Burmah Oil Co Ltd v Bank of England [1980] AC 1090 and Sankey v Whitlam (1978) 142 CLR 1 were concerned with curial inspection of documents at an earlier stage and for a different purpose than that which arises here.  Those cases were concerned with the question whether public interest immunity precluded disclosure of information to the party seeking that information.  In Burmah Oil the majority in the House of Lords examined the ten documents in respect of which immunity was claimed, to see whether they might contain evidence necessary for disposing fairly of the principal proceedings - see Lord Salmon at 1121, Lord Edmund-Davies at 1130, Lord Keith at 1136 and Lord Scarman at 1145‑1147.  In the result, their Lordships held that the documents were insufficiently material to require disclosure to the appellant. 

The basic purpose of public interest immunity is to avoid disclosure of information.  Disclosure of information is no longer an issue in the present case.  Furthermore, we know that the confidential documents are highly relevant and contain evidence which will dispose of most, if not all, of the issues which arise.  In effect, the appellant asks that admittedly relevant documents be taken into evidence, on a confidential basis, in order for the Court to decide at least the procedural fairness issue.  The degree of confidentiality accepted by the appellant would, as we have noted, deny access to that evidence even to his counsel and other legal advisers.  It goes beyond the restrictions imposed, for example, by the House of Lords in Church of Scientology of California v Department of Health & Social Security [1979] 1 WLR 723.

We were not taken by counsel to any authorities directly bearing upon the point which we have identified as being in issue here.  However, the process of balancing the interests protected by public interest immunity on the one hand against the public interest that the administration of justice not be frustrated or impaired on the other hand (being the process referred to by Sir Harry Gibbs as Acting Chief Justice in Sankey v Whitlam at 43 and as Chief Justice in Alister at 412) in our view provides us with sufficient guidance to determine the issue. 

The question which the appellant wants answered by way of judicial review is whether the delegate fairly disclosed to him all that could properly be disclosed of the material which is both personal and adverse to him, consistent with the protection of the public interest in maintaining confidentiality about the source of the information.  Given that the appellant is being denied access to information which would otherwise have to be put to him as a matter of procedural fairness, we do not think that he should have to shoulder the burden of establishing a prima facie case that the delegate has not disclosed fairly all that could be disclosed or that that “is on the cards”.  In our view, the appellant would be placed in a nearly-impossible position by such a requirement.  That position results from the public interest in protecting the source of information by the imposition of secrecy.  It seems to us that a balance can be struck between preserving that public interest and ensuring that there has been procedural fairness, by the Court examining the confidential material and assessing whether the summary is a fair one.  We do not see this as any reflection upon the integrity of the decision-maker.  The matter is one where there may well be room for differing opinions.  Judicial review of the confidential material might be seen simply as the price payable, (on particular occasions such as this), for adjusting procedural fairness requirements downwards in the course of protecting another public interest.

We do not think that judicial examination of the confidential material at the urging of the appellant amounts to condonation of a “fishing” expedition.  We would distinguish this case from the mainstream of public immunity cases.  This is, of course, an administrative law case.  The confidential information is a central part of the case.  If the confidential information is sufficiently summarised and disclosed in par 6 of the 1994 draft Departmental report to the fullest extent as is consistent with protection of the source or sources, then that will dispose of the procedural fairness point in favour of the respondent.  If not, then the appellant succeeds.  These conclusions would flow through to the “no evidence” claim and, probably, the legal error point too.  The appellant is not seeking to trawl the respondent’s documents to see if he can make a case. The confidential documents have been identified and the respondent, at the Court’s request, has delivered them to the Court in a sealed envelope.  In our opinion, that envelope contains key evidence which is vital to the dispensation of justice in this matter.  If there were no claim to confidentiality on public interest grounds, the documents would be available to the appellant and the Court by way of discovery and subpoena.  The appellant has proposed a mechanism whereby the public interest in confidentiality can be protected (judicial inspection to the exclusion of even his counsel) and at the same time justice can be done.  We can see no public interest which might be placed in jeopardy by taking the course proposed by the appellant.  The confidential material will not be disclosed except to the Court.  Furthermore the public interest will be served by having the case decided on the best available evidence.

Normally we would have directed that inspection of the confidential material be carried out by the primary judge.  However, this is an exceptional case.  The administrative decision has already been the subject of two reconsiderations (one in response to the first application to this Court and the other by reason of Beaumont J’s orders in the second such application).  This third application has resulted in a further order to like effect and the matter has found its way on appeal and cross-appeal to this Court.  If it were remitted to the primary judge for consideration of the confidential material and one of the parties were dissatisfied with the primary judge’s assessment, for example, of whether the confidential information was adequately summarised in par 6 of the draft 1994 Departmental report, it is likely that the matter would come back again to a Full Court of this Court.  The proceedings to date have also included three fairly substantial interlocutory applications (before French J, Branson J and Carr J) all of which involved the confidential material to some extent, particularly those before French J and Carr J.  There can be no dispute that a Full Court has the jurisdiction and power to take the course which we propose (i.e. examine the confidential material and decide the appeal on the basis of this additional evidence) - see ss 27 and 28 of the Federal Court of Australia Act 1976 (Cth).  The question is one of discretion.  In our view it is in the interests of justice, efficient judicial review of administrative action and fair and efficient administrative decision-making, in this somewhat unusual case, that we take that course.  It is in the interests of the parties and in the public interest that these proceedings be brought to finality as soon as reasonably possible.  When we have inspected the confidential material, we propose to consider the remaining grounds of appeal and whether the Court should reconvene to hear further argument from the respondent and, possibly, the applicant.

We do not consider, in the unusual circumstances of this case, that the appellant should be precluded from inviting the Court to examine the confidential material because senior counsel (not the same senior counsel who appeared before Nicholson J and us) at the hearing of the second application asked Beaumont J not to do so.  It was always open to the appellant to put before Nicholson J any evidence which had not been tendered before Beaumont J.  Counsel’s decision not, in effect, to tender the confidential information before Beaumont J did not in our view preclude the tender of such evidence before Nicholson J.  There can be no suggestion that this was an abuse of process.

Since writing the above, we have examined the documents which contain the confidential information.  We are satisfied that the summary of that information set out in par 6 of the draft 1994 Departmental report amounted to adequate disclosure of the confidential information.  It was as accurate a summary of that material as could possibly be disclosed without prejudicing the interests which are protected by public interest immunity.  In our opinion, in those circumstances, the applicant was given “... sufficient information of the objections raised against him such as to enable him to answer them” to adopt the language of Lord Denning MR in Reg v Gaming Board; Ex parte Benaim [1970] 2 QB 417 at 431.  See also Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 124.  We consider that the appellant was quite clearly accorded procedural fairness.  A comparison of par 6 of the draft 1994 Departmental report and the confidential material demonstrates that the respondent went to considerable lengths to achieve that end.

 

(b)        irrelevant considerations

In his 1992 application the appellant identified the following “irrelevant considerations” which the delegate was alleged to have taken into account: general assertions that Triads pervade all levels of society, general assertions that saunas and a large number of international hotels are commonly under Triad control or protection, the assertion that it is not uncommon for Triad members to have had gambling convictions when they were young, the views of an unidentified person that on the balance of probabilities the appellant is involved in organised criminal activity, unconfirmed intelligence reports that a business in which the appellant has an interest has Triad involvement, suspicions held by unidentified persons that a business in which the appellant has an interest is run by Chinese persons involved in illegal drugs, and representations made to the delegate by Mr Ho with respect to the application of which the appellant was unaware.  There was one other consideration which is not relevant for present purposes.

 

Beaumont J dealt first with reg 4(1)(b), pursuant to which a person convicted of an offence in circumstances indicating, in the reasonable belief of the Minister, habitual contempt or disregard for the law, is to be taken not to be of good character.  His Honour referred to the paragraphs of the 1992 Departmental report dealing with this question (pars 22 to 29), and said at 549:

 

“The discussion in pars 22 to 29 of the Departmental report indicates that the decision‑maker appreciated the need to consider each of the convictions in its proper context and to address the current situation.

It is said on behalf of the applicant, that the reported activities of others, whether Triads or not, should not have been used as a basis for inferring that the applicant was not of good character.  Again, it is necessary to read the report as a whole and, specifically, pars 22 to 29.  Reading the report as a whole and, specifically, pars 22 to 29, it appears that there was material before the decision‑maker, including the confidential information, on which it was open to him to form the reasonable belief that the ingredients specified in reg 4(1)(b) existed.

In my view, these were not irrelevant considerations for present purposes ....”

 

His Honour then turned to reg 4(1)(a)(iii), pursuant to which a person who, in the reasonable belief of the Minister, has been involved in activities indicating contempt or disregard for the law, is to be taken not to be of good character.  His Honour noted that this issue was dealt with in pars 30 to 44 of the 1992 Departmental report.  For the reasons he had given in relation to reg 4(1)(b), he rejected the appellant’s argument which was similar to that advanced in relation to reg 4(1)(b).

 

In the appellant’s 1994 application the “irrelevant considerations” asserted are relevantly the same as in the earlier proceeding.  The 1994 Departmental report deals with reg 4(1)(b) in pars 20 to 27.  Only par 21 differs from the comparable paragraph in the 1992 Departmental report, and then in an immaterial way.  The primary judge expressed the view that for him to re‑adjudicate the issues determined by Beaumont J would be an abuse of process.

 

In relation to reg 4(1)(a)(iii) his Honour noted that the 1994 Departmental report dealt with this issue in pars 28 to 39.  Paragraphs 32, 36 and 37 of the 1992 Departmental report do not appear in the later report.  Paragraph 32 contained what Beaumont J regarded as an error of law.  Paragraph 36 referred to whether the appellant had had a sufficient opportunity to answer adverse material.  Beaumont J subsequently found that he had.  Paragraph 37 expressed the view that as the applicant was not an Australian citizen, he would not be entitled to expect the full protection of Australian laws and other matters.  The paragraph comparable with paragraph 33 of the 1994 Departmental report had added to it the reference to Mr Ho’s affidavit.  The other paragraphs of the two reports were unchanged or substantially unchanged.  The primary judge referred to Beaumont J’s decision on reg 4(1)(a)(iii) and said that all the issues raised under this head had been the subject of prior determination by Beaumont J, and that it was an abuse of process for the appellant to seek to re‑run them before him.

 

In our view his Honour’s conclusions have not been shown to be wrong.  In the absence of fresh evidence, it would be oppressive and vexatious of the respondent to trouble him again in relation to the matters fully canvassed before Beaumont J.  It would also bring the administration of justice into disrepute among right-thinking people.  The assault on the primary judge’s abuse of process holdings thus fails.  Our inspection of the confidential material confirms that the delegate did not take irrelevant considerations into account.

 

RELEVANT CONSIDERATIONS

The matters claimed in the application to be relevant considerations that had not been taken into account are that the bath houses operated by companies in which the appellant held shares are governed by laws establishing a licensing system for massage establishments; that it is an offence under these laws to manage an establishment without a licence; that a licence is not to be granted unless the Commissioner of Police is satisfied that the applicant is a fit and proper person; that licences are valid for twelve months and will not be renewed if the licensee has breached any condition of the licence, has failed to satisfy the conditions for the initial grant of the licence or has operated the establishment in a manner contrary to the public interest; that a licence is revocable if the licensee is convicted of an offence of keeping a vice establishment; that the appellant’s companies satisfied all licensing requirements and have never had a licence revoked or been refused renewal; that the Clerk of Course of the Royal Hong Kong Jockey Club described the appellant as a man of high integrity and sound moral character; that Mr Ho swore that the appellant was leading a decent lifestyle; and that the appellant had provided an unchallenged explanation of the circumstances of his convictions.

 

Only one of these considerations was considered by his Honour, namely the Ho affidavit.  Having found that what he considered to be a relevant consideration had not been taken into account, his Honour did not consider the other relevant considerations contended for by the appellant.

 

(a)        the Ho affidavit

This affidavit, sworn on 28 January 1993, was before Beaumont J but was not before the delegate.  Its content can be summarized as follows:

 

·               Mr Ho is a prominent member of the Chinese community in Sydney and is fluent in English and Cantonese.

 

·               He has known the appellant since April 1990.

 

·               Having discovered that the appellant was experiencing difficulty migrating to Australia because of his Hong Kong convictions relating to gambling, Mr Ho contacted a member of the Australian Federal Police (“AFP”) and suggested to him that conversations the appellant might overhear in his bath houses may be of interest to the police, and the reporting of such conversations might enhance the appellant’s chances of being allowed into Australia.

 

·               Mr Ho was referred to AFP officers in Hong Kong.  He travelled to Hong Kong and advised the appellant that he should offer to provide information as and when he was able.  The appellant did not oppose this course, but was apprehensive, and said he could only offer to assist if and when he heard anything, and that at present he knew nothing of value.

 

·               Mr Ho then approached an AFP officer in Hong Kong and conveyed the offer.

 

·               On Mr Ho’s next trip to Hong Kong he and the appellant met the AFP officer to whom Mr Ho had earlier spoken, and another officer.  Mr Ho repeated his offer that should the appellant hear or discover information of interest to the AFP concerning criminal activities, Triad societies or the like, he would pass it on.

 

·               The meeting was conducted in English, which the appellant does not speak or understand well, and was essentially a conversation between Mr Ho and the officers.

 

·               Mr Ho tried to help the appellant because he was impressed by the appellant’s concern to provide a stable future for his family by migrating to Australia, the appellant had not been charged or convicted of any offence since 1976 and was “leading a decent lifestyle”, and he was prepared to fight the Australian authorities over a long period to clear his name and secure his family’s future.

 

On 30 May 1994 the Department provided the appellant with a copy of the draft 1994 report and invited him to provide a response thereto.  The following paragraphs of the draft are of present relevance:

 

“30.     You should be careful, however, not to put too much weight solely on the general environment in which Mr Chu operates.  Just because Mr Chu is involved in gambling and saunas does not mean that he is by definition a Triad or an associate of Triads.  Rather it is information from which you are entitled to draw an inference and should therefore be viewed as providing a general contextual framework within which to view Mr Chu’s activities of which we have knowledge.

...

36.       The significance you may wish to place on Mr Chu’s statements concerning his knowledge of Triad and criminal activities should be considered in the light of his other contacts with this office over a period of time including the approaches made by him and on his behalf in an effort to secure visas for himself and his family.  In this context, the visits by Mr Robert Ho to the then Regional Migration Director and the Australian Federal Police and by Mr Ho and Mr Chu together to the Australian Federal Police are of significance.  Records in the Consulate General show that the intention of the visits was to put the proposition that Mr Chu would be prepared to provide information on Triad and criminal activities in return for securing a migrant visa.  The then Regional Migration Director has advised that this was his clear and unambiguous understanding and, I am led to believe, that of the Australian Federal Police officers at the post.

 

37.       While Mr Chu has argued that because of his lack of English he was not always sure of what was being proposed by Mr Ho on his behalf, it is open to you to draw the following inferences from his approaches:

 

·               that as Mr Ho was his longtime friend and had made a number of representations on his behalf to immigration and police officers over a period of time, Mr Chu could be expected to have a reasonable knowledge of the substance of those representations;

 

·               that it would be unlikely that Mr Chu would himself meet with Australian police officers - who have no responsibility for the grant of visas - without knowing the substance of what was being proposed in his presence;

 

·               that if he was willing to provide information on Triad and related criminal activity in consideration of the grant of a visa, the information to be provided could be expected to be of some substance and worthy of that consideration.

 

38.       From the above, I submit, it would be reasonable for you to assume that Mr Chu possesses more than a general knowledge of Triad and related criminal activities and that in all probability his knowledge was gained from close personal association with such people.”

 

The appellant’s agent made a lengthy and detailed response to the draft report.  The agent referred to the submission in par 38, and continued:

 

“In forming those conclusions, you have completely disregarded the evidence of Mr Ho in his sworn affidavit of 28 January 1993 and indeed, you have failed to even bring to the attention of the Regional Director that Mr Ho has sworn an affidavit.  Given the importance you attach to the representations of Mr Ho on behalf of Mr Chu, your omission of this evidence is unfair and unreasonable.  Furthermore, the explanation advanced by Mr Ho, having been given on oath, must necessarily carry very considerable weight and is not to be rejected in favour of unsworn allegations, unsubstantiated claims nor unsupportable inferences.

 

It is crucial that this evidence is examined in some detail as it not only corroborates Mr Chu’s explanation that (a) he had nothing of value to offer the police, but (b) he was not especially well placed to come up with information of value.  Mr Ho’s evidence places the whole episode into proper perspective and makes it clear that there is no proper basis for construing Mr Chu’s offer to pass on whatever information he may chance upon, as in any way indicating that he has any criminal association which would make him privy to information concerning Triads or their activities.”

 

The agent then summarised the contents of Mr Ho’s affidavit:

 

·               “Mr Ho is a prominent and well respected member of the Sydney Chinese community.

 

·               Mr Ho is fluent in Chinese (Cantonese) and English.

 

·               Mr Ho corroborates the fact that Mr Chu neither understands nor speaks English well.

 

·               It was Mr Ho who came up with the idea of approaching the AFP in Hong Kong with an offer of assistance from Mr Chu based on the possibility of his overhearing matters of interest to the police from customers in the bath houses.  He thought that such an offer might influence the Immigration authorities in Mr Chu’s favour.

 

·               Mr Ho discussed his plan with senior officers of the AFP in Australia, one of whom gave him the names of persons to contact in Hong Kong.

 

·               Mr Ho first raised his plan with Mr Chu after he had discussed it with the police in Australia.  Mr Chu was apprehensive about the approach because he did not have anything of value to tell the police and no connections nor associations which would give him access to Triad information.

 

·               After discussing the plan with Mr Chu, Mr Ho again contacted a senior officer of the AFP in Sydney who encouraged him to proceed.

 

·               Initially contact was made by Mr Ho with the AFP in the absence of Mr Chu.

 

·               Mr Ho later persuaded Mr Chu to meet with the AFP in Hong Kong.

 

·               Mr Ho confirms that the conversation during the meeting with the AFP officers in Hong Kong was in reality a conversation in English between him and one of the officers, that Mr Chu’s contribution did not amount to any more than responding to a couple of questions directed by Mr Ho to him, and that the nub of the offer was that should Mr Chu come across information that may be of value to the police, he would pass it on.

 

·               the reasons for Mr Ho wanting to assist Mr Chu were that:

 

-           Mr Ho was impressed by Mr Chu’s concern to provide a stable future for his family by migrating to Australia;

-           Mr Chu had not been charged or convicted since 1976 and, to the best of Mr Ho’s knowledge and belief, was “leading a decent lifestyle”; and

-           Mr Ho was impressed by Mr Chu’s vigour in his efforts to clear his name.”

 

The agent reiterated that Mr Ho’s sworn evidence was of supreme importance to the appellant’s position because of the weight accorded by the draft report to the meetings with the AFP.

 

The agent then referred to par 36 of the draft report, and said that whatever the various officers from the Consulate might have said, on the appellant’s and Mr Ho’s evidence, it was not reasonable to conclude that the appellant knew that Mr Ho was asking for a visa in exchange for “quality intelligence”.  The agent then complained that par 37 was inaccurate in describing Mr Ho as a “longtime friend” of the appellant.  They had first met in April 1990.

 

The Departmental officer amended the draft in the light of the agent’s comments.  At the end of par 30 he added the sentence:

 

“Please find attached a written submission addressing a number of matters contained herein, which has been provided by Mr Chu’s agent and which I would recommend you consider.”

 

 

Paragraph 37 was amended by replacing the reference to “longtime friend” with the statement that according to the agent the parties had known each other since at least April 1990.

 

It will be seen from comparing our summary of the material parts of Mr Ho’s affidavit with the agent’s summary that only one matter is omitted from the latter, namely that Mr Ho had known the appellant since April 1990.  The delegate was of course aware of this from par 37 of the 1994 Departmental report.

 

Not only does the agent’s submission list all the essential matters in Mr Ho’s affidavit, it thrice refers to the fact that Mr Ho’s account is in the form of sworn evidence.  The agent also pointed out the significance of the Ho material to the appellant’s case.  In par 30 of the 1994 Departmental report the officer urged the delegate to consider the agent’s submission.  A reading of the affidavit would have added nothing to the delegate’s knowledge of the Ho material derived from the agent’s submission.  In those circumstances we are unable to agree with the primary judge’s conclusion that there was “a failure properly to take the Ho affidavit (a relevant consideration) into account”.

 

It appears to have been assumed before the primary judge that the Ho affidavit was a “relevant consideration”.  The ground of failure to take into account a relevant consideration is only made out if the decision‑maker has not taken into account “a consideration which he is bound to take into account in making the decision”: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39.  Where, in a case such as the present, the relevant considerations are not expressly stated in the legislation, they must be determined by implication from the subject‑matter, scope and purpose of the legislation.  Whatever might have been the status of the Ho affidavit had the Department not drawn the delegate’s attention to the agent’s submission and recommended that it be considered, we are unable, in the light of the accurate and complete summary of the affidavit contained in that submission, to regard the affidavit itself as something the delegate was bound to take into account.  In Li Shi Ping v Minister for Immigration (1994) 35 ALD 225 complaint was made that the delegate had failed to take into account certain cables which were said to be in his constructive possession and which contained information which supported the appellants’ claims to recognition as refugees.  Carr J, with whom Sheppard and Gummow JJ agreed, said at 236 that this contention “confuses taking into account relevant considerations with taking into account particular pieces of evidence”.  What the applicant invited us to hold is more remote from the intention behind s5(2)(b) of the ADJR Act than was the invitation to the Court in Li Shi Ping to take into account particular pieces of evidence.  It was to say that there was an improper exercise of power because the delegate had not taken into account an affidavit containing information which the delegate had before her in any event.  The submission necessarily characterises the relevant consideration that had been ignored as the affidavit and not its contents - the form and not the substance.

 

Even if a failure to read the affidavit itself did constitute a failure to have regard to a relevant consideration the delegate was bound to take into account, it would not in our view have been appropriate to set aside the decision on that ground.  In Peko‑Wallsend (1986) 162 CLR at 40 Mason J said:

 

“Not every consideration that a decision‑maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re‑exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ...”.

 

Given that the delegate had regard to the content of the affidavit via the agent’s letter, and that a reading of the affidavit would have told her no more than she had derived from the letter, the affidavit would be “so insignificant” that the failure to take it into account could not possibly have affected the delegate’s decision.

 

(b)        the other relevant considerations

As we have said, having decided that the Ho affidavit was a relevant consideration that had not been taken into account, his Honour did not consider the other relevant considerations contended for by the appellant which we have listed under the Relevant Considerations heading.  It will be apparent from our references to Peko‑Wallsend and Li Shi Ping that these considerations are no more than “particular pieces of evidence” which, it is asserted, the delegate did not take into account, and none of which is a “relevant consideration” in the sense in which that expression is understood in the case law.

 

BIAS

(a)        The reasonable apprehension test and administrators

The respondent contends that the primary judge erred in holding first, that the reasonable apprehension of bias test applies to the delegate’s decision, and secondly that “the parties or the public could reasonably entertain an apprehension that the delegate might not have brought an impartial and unprejudiced mind to the reconsideration”.  In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 the High Court said:

 

“a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”

 

Before us it was not suggested that the delegate was in fact biased against the appellant.

 

The reasonable apprehension of bias test as stated in Livesey in relation to judges has been applied to statutory tribunals: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 and Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179.  In Century Metals and Mining NL v Yeomans (1989) 100 ALR 383 at 417 the Full Court of this Court, after referring to the Livesey test, said:

 

“We agree with French J that it is a test which will not usually be appropriate in connection with administrative decisions.  Ministers and other administrators frequently have a continuing relationship with a particular issue or particular person during the course of which they necessarily form views; in practice it would generally be impossible for them to bring an open mind to a new decision pertaining to that issue or person.  But respectfully disagreeing with French J, we think that, in this unusual case, the test applicable to Judges is relevant.  As is illustrated by the decision in R v Kent Police Authority; Ex parte Godden [1971] 2 QB 662, there are cases in which it is appropriate to apply the judicial test to administrative decisions.”

 

In Century Metals the Minister had publicly announced that his decision would be preceded by an impartial assessment.  The Court held that members of the public were accordingly entitled to expect that the person who would make that assessment would bring to the task a mind not only uncommitted in fact but appearing to be uncommitted.

 

In Webb v The Queen (1994) 181 CLR 41, where it was held that the reasonable apprehension test applied to a juror in a criminal trial, Deane J said at 76:

 

“While the test of reasonable apprehension on the part of a fair‑minded informed lay observer is to be applied in this country in cases involving a judge, a juror or a statutory office holder required to observe procedural fairness, the standard which such an observer would require of each will vary according to the function being discharged and the particular circumstances.  This is particularly so in the case of alleged disqualification by conduct.”

 

In Minister for Immigration v Mok (1994) 55 FCR 375 at 397 Sheppard J, with whom Black CJ and Lockhart J agreed, after referring to Deane J’s judgment in Webb, said:

 

“The authorities to which Deane J referred in support of the proposition that the reasonable apprehension test applies to a statutory officer other than a judge were all cases which involved statutory tribunals. ...  I confess that I have not myself found any authority in which the decision of a Minister of the Crown or other administrative officer was challenged for apprehended bias.  But, on the basis that in this case the delegate was obliged to accord procedural fairness to the respondent, I see no reason in principle why the same rules do not apply to the delegate.  The difference in the position of a person such as the delegate here and, for example, of a judge is accommodated, so it would seem, by what Deane J said in Webb (at 76), namely that the standard which the observer would require of each will vary according to the function being discharged and the particular circumstances ...”.

 

His Honour went on to say that in determining whether a fair‑minded observer might have a reasonable apprehension that the delegate would or might bring a biased mind to the question to be decided, the Court must take the whole of the circumstances into account.  Those circumstances include on the one hand the fact that the decision‑making process in a refugee case does not take place in public, and on the other that the process is an administrative one.  He concluded by saying that although an administrative decision‑maker is required to accord procedural fairness to parties likely to be affected, “the approach must be one which is reasonable in all [the] circumstances” (at 398).

 

There is a difference in emphasis between the Full Court’s observations in Century Metals and those of Sheppard J and the other members of the Full Court in Mok.  The common ground, as the outcome in Century Metals demonstrates, is that the apprehension of bias test can apply to administrative decision‑makers.  The difference between the two cases is that in accordance with Century Metals the starting point appears to be that the test will not apply in the absence of unusual circumstances, while pursuant to Mok it will always apply where there is a duty to accord procedural fairness, but its application to administrative decision‑makers may differ because of the different circumstances and tasks of such decision‑makers as opposed to those of judges and formally constituted tribunals.

 

While the justices in Mok do not appear to have had their attention drawn to the Full Court’s views in Century Metals, that Court did not have the benefit of the views of Deane J in Webb.  In our view principle requires that whenever a body or person is required to accord procedural fairness to another, that other is entitled, amongst other things, to a decision‑maker who is unbiased in fact and in appearance.  The foundation of the apprehension test is the requirement that justice not only be done but be seen to be done: Reg v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263; Webb at 50, 72.  That requirement attaches to all bodies and persons who have power to affect the rights and interests of those affected by their decisions.  But the special position of the administrator, and the administrative process, is accommodated by acknowledging that the Court may expect the fair‑minded observer to require less of an administrative decision‑maker, according to the function being discharged and the particular circumstances, than of a judge or a formally constituted tribunal.

 

(b)        The present case

The delegate in the present case was obliged to accord procedural fairness to the appellant.  Accordingly, she would be disqualified from deciding his claim if the Court thought that, in all the circumstances, a fair‑minded observer might have a reasonable apprehension that the delegate would or might not bring an impartial and unprejudiced mind to the question to be decided.  One of the circumstances for the Court to take into account is that the decision‑making process is not held in public - a factor that may increase the likelihood of apprehension.  Another is that the process in which the delegate is engaged is administrative, and that the standard which a fair‑minded observer will expect of a delegate discharging an administrative function may not be as high as that expected of, say, a judge or a formally constituted tribunal such as the Broadcasting Tribunal or the Industrial Relations Commission.

 

The primary judge’s conclusion that there was a reasonable apprehension of bias was based on the cumulative effect of the four considerations we have mentioned.  As to the first, the mere coincidence of language between the reports adopted by a second and first decision‑maker would not in our view of itself lead a fair‑minded observer to entertain a reasonable apprehension that the second decision‑maker might not have brought an impartial and unprejudiced mind to the matter.  Though he did not put it in quite this way, his Honour seems to have been of this opinion.  What appears to have caused him to have concluded that the high coincidence of language between the 1992 Departmental report and the 1994 Departmental report was significant was that the reference in the former report to sixteen years having elapsed since the appellant’s last conviction had not been converted to eighteen years in the latter report.  This his Honour described as “supportive of an inference being drawn from the identity of language in this case because it demonstrates a lack of proper consideration”.  The person who prepared the 1994 Departmental report was careless in not adjusting the number of years from sixteen to eighteen.  But we do not regard that lapse as suggesting the appearance of bias on the part of the delegate, or as suggesting that a fair‑minded observer might reasonably have apprehended that the delegate may not have brought an impartial and unprejudiced mind to the task before her.  It is to be noted that his Honour did not conclude that it was.  Rather he said that the identity of language coupled with the oversight justified the inference that the delegate did not apply an independent mind to the decision‑making process.  That is a different issue from the apprehended bias question.

 

In our view the appellant derives no assistance on the apprehended bias issue from Huluba v Minister for Immigration (1995) 59 FCR 518, which was referred to by the primary judge though it was not mentioned before us.  There, an application for refugee status was refused by a delegate, and upon being reconsidered by another delegate, pursuant to an internal review, was again refused.  The reasons of the second delegate repeated, almost word for word, portions of the reasons of the first delegate which dealt with critical aspects of the decision-making process.  As a result Beazley J concluded that the second decision-maker had not brought an independent mind to the determination of the application.  Neither bias nor apprehension of bias are referred to in her Honour’s judgment.  Nor are any of the decisions on bias mentioned.  The case concerned whether the requirements of procedural fairness are satisfied where a decision-maker simply adopts the reasoning of another.  That was not the argument raised before us.

 

Even if, which we doubt, the use of identical language might justify a reasonable apprehension of prejudgment (as opposed to a failure to bring an independent mind to the process), the facts of the present case are distinguishable from those in Huluba.  It is true that there is a coincidence of language between the two reports, the reasons within which are deemed to be the reasons of the delegates.  However the reports are not identical.  First, the report adopted by the second delegate had been amended so as to accommodate the changed circumstances brought about by Beaumont J’s judgment.  Secondly, certain of the complaints made of the draft report by the appellant’s agent, in a lengthy and detailed submission, were attended to, the submission itself was annexed to the report, and in the report the delegate was urged to read the submission because it was important.

 

It seems to us to be pointless to require a second document with essentially the same content as an earlier one to be recast when no objective consideration calls for any alteration.  That would lead to contrived differences in language of the type criticised in Huluba.

 

The second consideration referred to by the primary judge was that the agent’s submission was annexed to the Departmental report devoid of comment or analysis.  We acknowledge that the primary judge did not base his conclusion on this factor alone.  But we do not think that, even along with the other factors, it is of any significance to the apprehension issue.  Particularly is that so when the delegate’s attention was specifically drawn to the submission with a recommendation that it be considered because it addressed a number of the matters with which the report dealt.

 

The third factor was the failure to place the Ho affidavit before the delegate.  It will be apparent from what we have said about the Ho affidavit that we do not consider this factor to be of any significance to the apprehension issue having regard to the agent’s full description of the contents of the affidavit and his analysis of its importance to the suggestion that the appellant had, by reason of his involvement in Mr Ho’s scheme to secure a visa, somehow admitted his criminal connections.

 

The final matter is the file note.  It was not the delegate’s own note.  The primary judge said that the file note was before the delegate.  The file note came into existence in the following circumstances.  By letter of 11 October 1993 Paul Elliott MP, Federal Member for Parramatta, wrote to the delegate asking whether she was prepared to accept a further application from the appellant’s spouse.  On 29 October Mr Elliott’s secretary, Marie Tunks, spoke by telephone to an officer of the Department whose identity does not appear from the evidence.  According to the file note made by the officer, Ms Tunks said she had seen a press report of a court decision, presumably that of Beaumont J, and had concluded that the delegate’s decision had been held to be wrong on a technicality and that she anticipated that the application for a visa would again be refused.  The officer responded that “we were of the same view”.  The officer then said that the response to Mr Elliott’s inquiry would be that no further application by the wife would be considered until the “character” litigation had concluded.  On 3 November the officer requested Tony Maguire (the officer who prepared the 1994 Departmental report) to prepare a draft letter for the delegate’s signature.  This he did, and the delegate signed it on 11 November.  The letter said what the file note foreshadowed.  In those circumstances there would have been no occasion for the file note to have been placed before the delegate.  There is no evidence that it was, and the proper inference is that it was not.

 

Three of the matters relied on by the primary judge were not in our view relevant to the apprehension issue.  One of them, the Ho affidavit, was the consideration to which he appeared to attach more importance than the other three.  It is clear that his Honour reached his conclusion after considering the combined weight of the four factors.  Accordingly it cannot be said that he would necessarily have come to the same conclusion had he been considering only the file note.  Thus the question arises as to the course we should adopt.  An assessment of the attitude of the fair‑minded observer is an intellectual exercise based on accepted facts.  It is analogous to the drawing of inferences from found facts, in respect of which an appellate court is in as good a position as a trial judge, because the task does not involve the hearing or seeing of witnesses.  It is entirely an exercise of the mind.  Accordingly we can come to our own conclusion as to the reaction of the hypothetical observer knowing of the existence of the file note.  As we have said, it was not the delegate’s own note.  Nor, contrary to the view of the primary judge, was it before the delegate.  There is no evidence that she read it.  The note does not purport to record a policy or a conclusion.  It contains no more than a prediction by one of the respondent’s officers as to the likely fate of the application.  It is to be remembered that the apprehension of bias test is designed to deal with prejudice and want of impartiality, not with expectations or predictions as to the possible outcome of a case: Gascor v Ellicott [1997] 1 VR 332 at 342 and 345 per Tadgell JA (with whom Brooking JA agreed) and at 350 per Ormiston JA.  And see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J.

 

Although the criterion of apprehension of partiality or prejudice is possibility, not likelihood, a reasonable apprehension is to be established to the court’s satisfaction.  It is a reasonable and not a fanciful or fantastic apprehension that is to be established.  And the apprehension is to be attributed to an observer who is “fair‑minded” - which means “reasonable”.  See Gascor v Ellicott at 342.  In Re JRL; Ex parte CJL at 352 Mason J said that disqualification is only made out if there is a reasonable apprehension of bias by reason of prejudgment which is “firmly established”.

 

In our view, in the absence of evidence connecting the delegate with the file note, or evidence that she was aware of its existence, we do not consider that a fair‑minded observer might think that the delegate may not have brought an independent mind to the matter.  Something more is required than an expectation by certain officers in the Department that the outcome of the application would be adverse to the appellant.

 

GROUNDS NOT DEALT WITH BELOW

The appellant contends that the primary judge erred in law in confining his consideration of the grounds of review in relation to reg 4(1)(a)(iii) to the Ho affidavit, thereby failing to determine the other grounds relied on.  The complaint that various matters were not dealt with by the primary judge relates only to reg 4(1)(a)(iii).  See Ground 1 and par 1.5 of the Particulars thereto, and pars 1 to 38 of the appellant’s written submissions.  We have dealt with the natural justice and irrelevant considerations grounds under the Abuse of Process heading.  We have also dealt with the relevant consideration ground.  The remaining grounds are: no evidence, unreasonableness, improper exercise of power and error of law.  Because we have reached a clear view as to the viability of each of these grounds, and because of the history of the matter, we think it appropriate to decide these issues ourselves rather than remit them to the primary judge for determination.

 

(a)        no evidence

There is no substance to the claim that there was no evidence or other material before the delegate to justify the making of the decision.  The delegate had before her, amongst other things, the confidential material.  That material, which we have read, provided ample material to found a reasonable belief for the purposes of reg (1)(a)(iii).

 

(b)        unreasonableness

In the light of the confidential material it is impossible to sustain the contention that the delegate’s decision was so unreasonable that no reasonable person could have reached it.  The particular complaints made under the general head of unreasonableness are for the most part invitations to the Court to enter upon a consideration of the merits of the decision - excessive weight given to the appellant’s convictions (par (a)); inadequate weight given to Mr Ho’s affidavit and to the appellant’s good character since 1976 (par (c)); concluding that the appellant was offering to supply intelligence about people with Triad connections (par (d)); and failure to waive the character requirement (par (f)).  The three remaining complaints have no substance.  The first is that the decision was unreasonable because the respondent failed to make enquiries of the applicant about the matters the subject of the confidential information (par (e)).  The applicant was provided with the summary of the confidential material (which we have held was a sufficient summary), and was invited to and did respond to it.  The second complaint is that the decision was arrived at in an unreasonable manner in that it was assumed that the 1992 decision had been set aside on a technicality and on that basis it was presumed that the application would again be refused (par (h)).  It follows from what we have said about the file note under the Bias heading that this is an unjustified conclusion to draw from the contents of the note.  The confidential information makes it impossible to sustain the third complaint, that the decision was based on speculation and generalisation (par (i)).

 

ABUSE OF POWER

There are two contentions here.  The first is that the appellant was not afforded a proper opportunity to contest the reasonableness of the decision.  As we have said elsewhere, there is no basis for this claim.  The appellant was provided with a copy of the draft 1994 Departmental report and was invited to respond to it.  This he did, and the report was modified in certain respects in the light of that response.  The second contention is that the decision‑making process was carried out in a perfunctory and cursory manner, and the decision was based on suspicion, speculation and generalisation.  The evidence does not support the first claim, and the second is untenable in the light of the confidential information.

 

ERROR OF LAW

This ground of review is the subject of par 4 of the amended application.  Sub‑paragraphs (a) and (b) relate to reg 4(1)(b), and are not in issue under ground 1 of appeal.  Sub‑paragraphs (c) (evidence not capable of giving rise to a reasonable belief that the appellant was involved in activities indicating contempt or disregard for the law), (d) (wrongly concluding from Mr Ho’s representations that the appellant had more than a general knowledge of Triad activities), (e) (failing to have proper regard to the circumstances of the convictions), (f) (failing to be satisfied that the appellant had reformed since 1976), (g) (failing properly to consider whether reg 143(a)(ii) was satisfied), (h) (failing properly to consider whether reg 143(b) was satisfied), and (i) (decision based on speculation, suspicion and generalisations) all seek to review the delegate’s decision on the merits.  Sub‑paragraph (j) asserts that the decision was made in a perfunctory and cursory manner, and that accordingly there was a failure properly to carry out the decision‑making process and a constructive failure to make a decision.  As we have said elsewhere, the evidence does not support this contention.  Sub‑paragraph (k) contains two related claims.  The first is that the delegate failed to consider the application afresh.  The second is that the delegate assumed that the 1992 decision had been set aside on a technicality, and applied a presumption that the application should again be refused.  In so far as the first asserts something over and above the complaint in the second, it is unsupported by any evidence.  It follows from what we have said about the file note under the Bias heading that no such presumption was applied by the delegate.

 

CONCLUSION

In our view the appeal should be dismissed and the cross-appeal allowed.  The orders made by the primary judge should be set aside and the appellant’s application for review dismissed with costs.  The appellant should pay the respondent’s costs of the appeal and the cross-appeal.

 

I certify that this and the preceding thirty-six (36) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr and Sundberg

Associate:

Dated:              19 September 1997

Counsel for the Appellants:	L W Roberts‑Smith QC and A J Goldfinch
Solicitors for the Appellants:	Goldfinch & Co
Counsel for the Respondent:	S Owen‑Conway QC and P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 July 1997
Date of Judgment:	19 September 1997

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WG 32 of 1997

 

BETWEEN:	CHU SING WUN Applicant
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

 

 

JUDGE(S):	CARR, KIEFEL, SUNDBERG JJ
DATE:	19 SEPTEMBER 1997
PLACE:	PERTH

REASONS FOR JUDGMENT

KIEFEL J

The background to this appeal is set out in the reasons of Carr and Sundberg JJ.  As the history of this matter discloses, the applicant succeeded in having the matter remitted by the primary Judge for determination again.  On the hearing of the appeal further relief was sought, and the matter was put, on the basis that his Honour ought not to have made the orders for remitter without making the declarations which had been sought, namely:

 “A.        That the appellant is not a person who is taken not to be of good character within the meaning of regulation 4(1) of the Migration Regulations 1989;

B.           That there are no reasonable grounds upon which the respondent could form the reasonable belief that the appellant had been involved in activities involving contempt, or disregard for the law, within the meaning of Regulation 4(1)(a)(iii) of the Migration Regulations 1989; 

C.           A declaration that there were no reasonable grounds upon which the respondent could form the reasonable belief that the appellant had at any time been convicted of an offence in circumstances indicating habitual contempt or disregard for the law within the meaning of regulation 4(1)(b)(iii) of the Migration Regulations 1989.”

Additionally, the further amended notice of appeal sought orders varying those made by the primary Judge, so that the following directions would apply to the matter as remitted:

“(i)         the appellant be provided with sufficient particulars of information, allegations and conclusions relied upon by the respondent to enable the appellant to demonstrate that they are untrue and to enable the appellant to properly respond to them;

(ii)          to the extent full disclosure of the information held by the respondent may reveal sources properly to be kept confidential the respondent provide the appellant with a reasonable alternative means for addressing the accuracy, reliability and weight of the relevant material and for responding to it.”

These directions were said to be necessary were this court to conclude that procedural fairness had not been given to the applicants.  On the view I have taken of the matter, it is unnecessary for me to deal, at any length, with questions as to orders and directions framed in this way.  Relief by way of these declarations was no doubt seen as necessary to overcome any suggestion that the appeal was without utility, since the applicant sought only to succeed on different bases.  That was not the subject of any substantial argument in the appeal.  The terms of the declarations sought would appear to have the effect of substituting the court’s conclusion on the facts with those of the decision maker, an impermissible course.  The directions are too vague and they appear to require the court to frame what might be necessary, after viewing the confidential material, if that be the course taken.  It is this confidential material which, in my view, was the true focus on the appeal.

The Grounds of Appeal - Categories

The matter has become seemingly complex.  There are a substantial number of grounds for review and on this appeal they must necessarily be dealt with in separate categories, according to whether they have been the subject of prior determination and, where they have, to the particular issue arising with respect to them.

The first category comprises those grounds dealt with by Beaumont J (Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540) with respect to the 1992 decision, namely that the decision-maker took into account irrelevant considerations in concluding the question as to the applicant’s character which arises under the Migration Regulations, adverse to him, and that the applicant had been denied natural justice.  His Honour the primary Judge held that the repetition of the arguments on these grounds would amount to an abuse of process.  Another question which arises with respect to the ground concerning procedural fairness is as to whether the primary Judge ought to have viewed the confidential material to determine whether the applicant had been properly informed of all relevant matters.  Those grounds which fall conveniently into a second category are those which, it is said, were not dealt with by the primary Judge and include error of law;  that there was no evidence to support the conclusion as to character;  that the decision was unreasonable in the sense referred to in administrative law;  and that it was an improper exercise of power.  If it be the case that his Honour has not dealt with those grounds, the question which then arises is whether it is necessary or desirable to remit them to the primary Judge for further consideration. 

It was also submitted that the primary Judge did not deal with each respect in which it was alleged there had been a failure to take into account a relevant consideration.  The applicant succeeded before his Honour on this ground, his Honour concluding that the decision-maker ought to have taken into account the affidavit of Mr Ho.  Whether that conclusion is correct is an issue in the cross appeal.  The applicant on his appeal contends that the ground may be made out on other bases.

Lastly, it is necessary to address the question as to whether the circumstances surrounding the decision-making process were such as to provide a basis for a reasonable apprehension of bias on the part of the decision-maker.  His Honour the primary Judge held that they did.

Matters dealt with by Beaumont J

The delegate’s decision in question depended upon opinions formed as to the character of the applicant, by reference to the Migration Regulations.  Regulation 4(1)(a)(iii) provides:

“4.(1)     For the purposes of these Regulations, a person is to be taken not to be of good character if:

(a)          …

(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 Regulation 4(1)(b) provides that that requirement as to good character is not made out if:

“(b)        in the case of an applicant for an entry visa …the applicant has at any time been convicted of an offence …in circumstances indicating, in the reasonable belief of the Minister, habitual contempt or disregard, for the law, or for human rights.”

The report to the delegate was, in all material respects, in the same terms as that which had been prepared for the purpose of the 1992 decision, the subject of Beaumont J’s determination.  The paragraph which contained the error of reasoning had however been excised.

In connection with the question arising under regulation 4(1)(b), the report referred to the limits to what might properly be drawn from the applicant’s connection with particular activities and as to what they might suggest of his connection with criminal groups.  It went on to discuss what was said to be contained in the confidential information, which had been obtained over several years and was described as reliable.  This is the information which was held by French J not to be liable to production in the public interest.  That information, the report explained, implicated the applicant in criminal activities.

Beaumont J dealt first with the ground that the decision-maker had taken into account irrelevant considerations.  After observing that the question posed in the regulation had been specifically addressed in paragraphs 22 to 29 of the departmental report, his Honour went on to deal with the argument that “the material relied on by the decision-maker was incapable of giving rise to the requisite belief” and distinguished Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 565 for the reason that the report relating to the applicant here showed that “the decision-maker appreciated the need to consider each of the convictions in its proper context and to address the current situation”.  His Honour then went on (549):

“It is said, on behalf of the applicant, that the reported activities of others, whether Triads or not, should not have been used as a basis for inferring that the applicant was not of good character.  Again, it is necessary to read the report as a whole to understand the process of reasoning at pars 22 to 29.  Reading the report as a whole and, specifically, pars 22 to 29, it appears that there was material before the decision-maker, including the confidential information, on which it was open to him to form the reasonable belief that the ingredients specified in reg 4(1)(b) existed.

In my view, these were not irrelevant considerations for present purposes, even if, for other purposes, there might be room for debate about their significance. …”

A similar argument concerning reg 4(1)(a)(iii), was rejected by Beaumont J for the same reasons (550), although his Honour went on to hold that the delegate had been mistaken in applying a policy consideration to the questions posed by the regulations.

The respondent to this appeal submitted that the applicant ought to be taken to have abandoned the other grounds (the second category I have earlier identified) not pursued before Beaumont J, but which were raised in the proceedings before the primary Judge and there argued.  The primary Judge, at an early point in his reasons, appears to have discounted the prospect that the failure to have litigated matters to conclusion earlier could constitute an abuse of process, or that a party could be held estopped with respect to those issues.  I should add that his Honour’s conclusion that issue estoppel could not, on any basis, be said to arise in the present case, was not challenged by the respondent on this appeal.  It sought only to support the primary Judge’s finding that re-litigation, of what had been determined by Beaumont J, amounted to an abuse of process. 

A conclusion of abuse of process is not one usually sought at a final hearing.  When it is said to arise the party adversely affected by the litigation usually seeks to stay or restrain their continuation.  An application to strike out the proceedings as being an abuse of process, and on other grounds, was heard before Branson J and dismissed.  His Honour the primary Judge was in a position where he was required to determine whether it was an abuse of process for the applicant to present the same arguments as those determined by Beaumont J, or to decide them.  The process undertaken by the primary Judge was to consider whether the present application differed in any material respect from that considered by Beaumont J, and to consider the evidence available on each occasion.  His Honour then determined that there was no factual difference, save for the agent’s submissions and the affidavit of Mr Ho.

Where further evidence is sought to be relied upon in subsequent proceedings, that factor would usually take the matter out of the category of one re-litigated.  In addition to the evidence just mentioned, which is relevant at least to the ground that relevant considerations had not been taken into account, this case has the added complication that there is said to be the possibility of further evidence.  I refer to the information which the applicant considers might be found in the confidential material.  And, as mentioned previously, it is said to be essential to a detriment of the ground of natural justice and also the wider evidentiary grounds which, it is submitted, the primary Judge did not determine.  It is appropriate, in this case, to deal with his Honour’s conclusions as to abuse of process on the basis that no further evidence will be available, and then to consider whether resort ought be had to the confidential information.  This course follows the way in which the matter was argued.  Whilst the focus of the appeal, and the applicant’s prospects of success in my view lay with the confidential information, the applicant also relied on grounds which had regard only to the terms of the regulations and the material in the departmental report which formed the basis for the delegates’ decision.

His Honour the primary Judge concluded, and stated shortly, that to re-adjudicate the issues determined by Beaumont J would be an abuse of process.  That was so because there was no new material bearing upon the matters sought to be raised.  His Honour referred to Roser v Immigration Review Tribunal (No 2) (1992) 29 ALD 182, and the discussion by O’Loughlin J, that repetitive proceedings could amount to an abuse of the processes of the court.  Noting that the respondent did not rely upon any improper purpose on the part of the applicant, his Honour observed that, nevertheless, an abuse of process may be constituted where “claims advanced are untenable and have no chance of success or because the same issues have been litigated previously …”.

 

That the courts have jurisdiction to take steps to prevent the continuation of proceedings which are an abuse of the court’s process is undoubted:  see Metropolitan Bank v Pooley (1885) 10 App Cas 210 and Hunter v Chief Constable of the West Midlands Police [1982] AC 529.  The majority (Mason CJ, Deane and Dawson JJ) in Walton v Gardiner (1993) 177 CLR 378, 393 held that, for proceedings to amount to an abuse of process, it was not necessary that an issue estoppel operate, nor was it essential that some ulterior and improper purpose be shown.  The absence of an operative estoppel or the difficulty in determining whether that doctrine has application to all proceedings, especially in criminal proceedings, has in part been responsible for the development of case law in this area:  see Rogers v The Queen (1994) 68 ALJR 688.  Reichel v McGrath (1889) 14 App Cas 665, and other earlier cases, have been seem as decided at a time when recourse to the doctrine of issue estoppel was not possible.  (See the observations of Lord Denning MR in McIlkenny v Chief Constable of the West Midlands [1980] QB 283, 322).  Whilst motive is not a pre-requisite to proceedings liable to be stayed or struck out as an abuse of process many of the cases where these orders have been made were decided on this ground: for example Williams v Spautz (1992) 174 CLR 509. McIlkenny v Chief Constable of the West Midlands was also concerned with an improper purpose, the use of civil proceedings to attack the decision in former criminal proceedings (although McHugh J in Rogers v The Queen (707) discerned another such purpose).

I do not however understand the cases, including Walton v Gardiner, to hold that the mere repetition of the same argument in proceedings, otherwise properly constituted, will in all cases amount to an abuse of process, even if the argument has been the subject of some determination.  In Walton v Gardiner (393), when discussing attempts to litigate a case again, where an estoppel did not arise, their Honours included in the example given the fact that “the continuation would be unjustifiably vexatious and oppressive…” as the reason for it constituting an abuse.  Whilst their Honours went on (394) to refer to general statements (particularly those in Jago v District Court (NSW) (1989) 168 CLR 23) to the effect that the jurisdiction ought be exercised as and when the administration of justice requires, I take this to be in connection with the suggestion that the class of case, where an abuse of process might arise, should not be considered as closed.  And, in my respectful view Brennan J in that case (417), although in dissent on the substantial question, was correct to observe that caution needs be exercised in justifying a refusal to determine a case by reference to concepts of fairness or administration of justice.

The present case does not involve any new or unusual feature.  It raises the question whether it is impermissible to pursue the same argument again, where no new evidence is sought to be adduced.  Of the three categories most commonly found in the decided cases, namely illegitimate purpose, that the proceedings would be unjustifiably oppressive, or that they would bring the administration of justice into disrepute (as listed by McHugh J in Rogers v The Queen (706) it is the second with which we are here concerned.  The first is not raised and the last mentioned requires, I would think, the prospect of some serious reflection upon the system of justice as for example, in Hunter v Chief Constable of Midlands where there was seen to be a collateral attack on the earlier proceedings themselves. 

Whilst continued attempts to re-litigate the same question will, at some point, likely result in a finding that the proceedings in which they are sought to be raised again are vexatious or oppressive, in my view such a finding will not be made only by reference to the fact of repetition.  To reach such a conclusion one would need to consider the nature of the prior decision or decisions and in particular as to whether the question decided was binding as precedent or whether, in any event, it dealt with each aspect of the argument now sought to be advanced.  As part of that latter consideration, the court in the subsequent proceedings would be alert to any merit the argument might have.  In cases where the pursuit of the same argument is vexatious or oppressive, but where it is open to the court to determine the matter afresh, the reason it will not do so is because it is plain that the argument has no merit and that the proceedings are a futility.  Where the matter has been addressed in a detailed way by a court before this conclusion might quickly be reached, especially where the applicant does not point to any error in the process of reasoning.  It might then be seen as oppressive or unjust to subject the respondent to its adjudication again.  It is, I consider, these effects of which their Honours spoke in Walton v Gardiner (and see also Cox v Journeaux (No 2) (1935) 52 CLR 713).  A conclusion as to the merits of the argument already dealt with by Beaumont J is one which is readily able to be reached in this case.  This is to say, that I concur in the conclusion reached by the primary Judge, but for different reasons.  In this respect I have considered whether his Honour the primary Judge, by earlier references to untenable cases, had the applicant’s prospects of success on these grounds in mind, but it seems to me that his Honour’s later statements make it clear that his Honour considered that an abuse of process might be constituted by mere repetition, absent any new feature.  In that view I must respectfully differ.

The primary Judge was free to depart from the reasoning and conclusions reached by Beaumont J.  Indeed they did not form the basis for the orders ultimately made by Beaumont J.  This court was informed that it was for that reason that they were not appealed from (a different course from that undertaken with respect to the primary Judge’s decision on this appeal).  And as my reasons which follow disclose, there is no basis shown for conclusions different from those stated by Beaumont J.  No doubt the primary Judge considered it necessary to address the arguments advanced with respect to abuse of process.  It seems to me however that, at the stage the proceedings had reached there was no practical benefit to the respondent in determining that question and what was required was a decision as to the merits.

Relevant Considerations

The primary Judge determined that the affidavit of Mr Ho was a relevant consideration to which the decision maker ought to have had regard, and that the decision was vitiated by this error.  I am unable, respectfully, to agree that there was in the circumstances an obligation to have regard to the contents of the affidavit.  In this respect I concur in the reasoning of Carr and Sundberg JJ on this aspect of the cross-appeal.  There is nothing which I would wish to add. 

It was also submitted for the applicant that the primary Judge did not consider all of the bases put forward with respect to this ground.  The considerations nominated in paragraphs 3(a)(b)(c)(d)(e)(f)and (g) of the application for review, as matters necessary to be considered by the decision-maker, may be summarised as follows:  that the establishments operated by the applicant’s companies were subject to a system of licensing under the Hong Kong Ordinances;  that the issuing authority was required to be satisfied that the proprietor (which term included the applicant) was a fit and proper person;  and that renewal of the licenses in question was dependent upon that opinion being maintained, upon the establishment being run in a proper manner and upon the operator having no conviction connected with vice.  Inferentially the applicant had satisfied the licensing authority of all these matters.  Additionally it was contended that the delegate ought to have had regard to a reference, as to the applicant’s integrity and moral character, which had been provided by the clerk of the course of the Royal Hong Kong Jockey Club. The last mentioned factor, which amounts merely to someone else’s opinion of the applicant, could never satisfy the description of a matter which the decision-maker was bound to take into account, in the sense referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.  The other factors to which the applicant refers might permit some inferences, favourable to the applicant, to be drawn.  The extent to which they might operate as influential is, I would think, debateable given the questions posed under the regulations.  In any event, whilst they are factually relevant, as having a connection with the subject matter of the opinion to be formed as to the applicant’s character, they are not so in the administrative law sense, which is to say, such that it could be said the decision maker was clearly bound to take them into account in coming to a conclusion as to the applicant’s character.  In this respect the decision of Carr J in Li Shi Ping v Minister for Immigration (1994) 35 ALD 225 is to the point.

The primary Judge did not, as the appellant contends, consider these questions.  Given the history of this matter I would be reluctant to remit them to his Honour for decision, unless such a course was necessary.  This court is in as good a position to determine them, as matters of law.  In my view no additional ground for a conclusion that the delegate acted to take into account a relevant consideration, has been established.

Other Grounds said not to have been dealt with by the primary Judge

The first ground under this head is summarised as error of law, and is said to have regard to the construction of each of reg 4(1)(b) and reg 4(1)(a)(iii) of the Migration Regulations and, in particular, to what must be shown before the requisite belief can be held.  The other grounds said not to have been dealt with by the primary Judge,  and which I have earlier outlined, are that there was no evidence to enable such a view to be held and that the decision was unreasonable in that it was one not fairly and rationally open.  The remaining ground, improper exercise of power by the decision-maker, which alleges a subjective and speculative assessment, will fall to be determined on the same bases as unreasonableness.  Other particulars given of these grounds in my view amount to impermissible attempts to dissect parts of the evidence and attribute greater or lesser weight to features of it.  I have confined my considerations to the questions which properly arise:  as to the requirements of the regulations and the evidence available to and utilised in the delegate’s reasoning to conclusion.

Regulation 4(1)(b) is concerned with inferences which might be drawn from convictions for offences.  The applicant’s principal contention, in this connexion, was that the regulation must be seen as confined to the circumstances of the offence itself, that is to say, facts and events relating to the commission of the offence or forming part of the offence.  The report (pars 20-27, which correspond with 22-29 of the report before Beaumont J) referred to the nature of the offences and what might be one drawn from them with respect to the question posed by the regulation, namely whether habitual contempt or disregard for the law, on the part of the applicant, was shown.  It suggested that the number of offences was of concern, and indicated a pattern of behaviour.  Further the offences, and in particular those of writing lotteries and running gaming houses, were suggestive of a pattern of organised behaviour which was indicative of disregard for the law.  It pointed out that, whilst a significant number of persons in Hong Kong were then also involved in illegal gambling, the repetition of such offences, to the extent in the present case, was not usual.  What the regulation required was that the conviction, and the offence to which it related, be considered in its context.  This was observed by Beaumont J (549) who found that this had been appreciated by the decision-maker.  And in my view the applicant’s contention that consideration of the series of convictions, as disclosing a course of conduct, was not permitted for the purpose of the enquiry must also be rejected.  Even on a narrow reading of the terms of the regulation, the later convictions could be viewed in the background of earlier similar convictions.  It would seem a strange result that a regulation concerned with whether a person can be said to have abided by and accepted the laws of a country, could be answered only by reference to the facts surrounding each separate offence, when clearly a most important factor is that the applicant has continued to offend.  That was not the only basis given in the report for an adverse finding, although the number of convictions was stated as of greater concern.  As I have said, the nature of the offences and their connection with criminal societies, were also adverted to.

Regulation 4(1)(a)(iii) is also concerned with whether a disregard for the law was shown, but the test there stated has regard to the nature of the activities undertaken.  The essence of the applicant’s argument was that the regulation required the applicant to be seen as personally involved in the activities in question and that there was no evidence to enable that view to be reached.  It was submitted, then, that the conclusion reached, of a belief of the applicant’s involvements in such activities, was speculative or unreasonable.  In this respect I should add, for later purposes, that where Beaumont J refers to the confidential information which was before the decision-maker, it cannot be suggested that Beaumont J himself had regard to it.  His Honour’s assessment was conducted on the basis of the summary of the confidential material contained in the report.

What the submission overlooked, in my view, was the information referred to in the departmental report which, it was said, directly implicated the applicant in those activities.  As with much of the argument advanced for the applicant, it was, in reality, concerned more with the sufficiency of the evidence than its application to the question posed by the regulation.

I have dealt with these grounds on the basis that his Honour the primary Judge had not determined them, which is the view I have reached.  In relation to the reasons of Beaumont J for rejecting the applicant’s arguments concerning the regulations, the primary Judge said:

“In relation to the application of reg 4(1)(a)(iii), Beaumont J said an argument was put similar to that advanced in the context of reg 4(1)(b) and that, for similar reasons, he could not accept the argument.  I understand this to mean he found there was material before the decision-maker, including the confidential material, on which it was open to form the reasonable belief that the ingredients in the regulation were satisfied and the ground of irrelevant considerations was not made out, even though there might be room for debate about the significance of some of the matters.

It follows that all of the issues raised on behalf of the applicant under this head have been the subject of prior determination by Beaumont J, save anything which might arise as a new matter from the agent’s submission. …”

It is correct to observe, I think, that the findings of Beaumont J went beyond those relevant only to the ground of irrelevant consideration.  In the process of dealing with that question, his Honour expressed views which could be regarded as determinative of the “no-evidence” and “unreasonableness” grounds.  It seems to me that his Honour the primary Judge was of this view.  His Honour did not however adopt the findings or reasoning as correct.  Such an approach might have amounted to a determination.  Rather, his Honour went on to hold that re-adjudication of those same issues would be an abuse of process.  For the reasons I have earlier given, I am unable to agree that such repetition is impermissible.  And one of the factors which, in my view, would have been relevant to the question as to whether there was an abuse of process, was whether the matter had been fully argued and determined on the prior occasion.  In my view the primary Judge was obliged to consider the arguments.  I have however come to the conclusion that there is no merit in them and, again, that there is no need to remit them to the primary Judge for further consideration.

The Procedural Fairness Ground - Confidential Information

The matters specified in the report, in respect of which the applicant submits he ought to have been given more extensive or detailed information were, in summary, that information from confidential sources indicated that he was strongly implicated in involvement in criminal activity and as an associate of known criminals and Triads, that on balance of probabilities he was involved in criminal activity, and that establishments run by him or his companies had Triad connections.  They are the same as those in the 1992 report and they formed the basis for the opinion concerning Mr Chu’s character, which opinion was accepted by the delegate.

Beaumont J found that the information provided to the applicant drew his attention to these allegations and that he had been specifically invited to respond to them.  In those circumstances his Honour accepted that the process had been a fair one.  His Honour distinguished Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, where the applicant had successfully argued that the information provided was insufficient because in this case a summary of the confidential information, the basis of the allegations, had been made available.  His Honour went on (548):

“…in Kurtovic, the applicant for relief was merely invited to make submissions without having any means of knowing what matters might be taken into account adverse to him.  In the present case, although the applicant was not given the details of the confidential information, he was on notice of its essential features.”

His Honour the primary Judge held also, in respect of this ground, that it would be an abuse of process to allow it to be reargued.  Again, I am unable to agree with that conclusion.  But as with the other grounds, to which findings of abuse of process were applied, I can discern no basis, in any event, for departing from the conclusions reached by Beaumont J.  The real focus of the applicant’s case was the confidential material. His Honour the primary Judge was asked to view the confidential information, but declined to do so.  His Honour said:

“There is no additional evidence relevant to the issues upon which Beaumont J has already adjudicated.  It would be an abuse of process to reopen those matters. 

In these circumstances, there is no reason for the Court to now take the opportunity of examining the confidential material.  This court cannot second guess the judgment of Beaumont J that the particulars were adequate.  It is patent from his reasons that the contents of the confidential material were such that for the delegate to rely on it would not be unreasonable unless it was adequately answered …”.

This court was advised on the hearing of the appeal that his Honour had been informed that Beaumont J had not in fact read the confidential material and that Beaumont J had been asked not to read the material.  In these circumstances Beaumont J accepted that what was provided was the “essential features” of the confidential material, but by reference to the summary of it in the department report.  From the passage just quoted it would seem that his Honour, the primary Judge, was mistaken in his belief that Beaumont J had read the confidential information.  But that is not an end to the matter.  The question which then arises is whether the primary Judge ought to have done so.

It was submitted, for the applicant, that there were two justifications for the court itself undertaking an examination of the confidential material, on an application for judicial review.  In the first place it was said to be necessary that the court satisfy itself that there was, in fact, evidence of the kind referred to in the departmental report.  With respect to this contention, which seeks the aid of the court to pursue the “no evidence” ground earlier dealt with, the prospect that it is no more than a fishing expedition is obvious.  The second basis put, on first consideration, appears to have more weight.  It was submitted that the only means by which the applicant can be assured that he has had a proper opportunity to respond is by the court checking the confidential material, since he has been denied access to it on grounds of public interest.  I have concluded however that in neither case is the court justified in undertaking the task of review of the documents.  With respect to the argument based in procedural fairness, the stated basis misrepresents the proper question for a court concerned with review of administrative action, which is whether the applicant has had notice of matters to which a response was necessary.

Most of the cases concerned with the court’s role in viewing confidential material arise in connection with claims for privilege from production.  It is then often necessary for the court to look at the documents in question, to determine whether they have the quality claimed and to answer the question whether it is in the public interest that they not be produced:  see Alister v The Queen (1984) 154 CLR 404;  Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523.  And it has been held that a bare assertion, that inspection is necessary or will assist the court, will not suffice.  What must be shown is “some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition”:  Air Canada v Secretary of State for Trade [1983] 2 AC 394, 439; 414, 439, 456;  Alister v The Queen (414, 439), (although Gibbs CJ and Brennan J in Alister suggested that a more liberal approach ought be taken in criminal proceedings). If such an approach were to apply to proceedings for judicial review the applicant’s application, to ascertain whether evidence exists, would fail.  Putting aside the strength of the case which needs to be shown to warrant discovery and production, which is not here relevant, the cases show that fishing expeditions should not be encouraged in litigation: Alister (439).  The underlying rationale for such an approach, having regard particularly to the nature of litigation in our system and to the role of the courts, to which I shall refer, may be discerned.  A refusal to permit a party to fish for other grounds has been applied to discovery in the context of applications for judicial review:  Lloyd v Costigan (1983) 62 ALR 284, 292-3;  Murchison v Keating (1984) 1 FCR 341, 344 and the relevant authorities were reviewed by Wilcox J in Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78, 83. 

Discovery involves the use of the processes of the court to ascertain material which might be used in a party’s case.  In Lloyd v Costigan, 292, the Full Court considered that those processes ought not be utilised to attempt to make out a case and find whether an allegation has any basis by simply alleging that a decision was made without basis.  I can see no reason why the same principle ought not to be applied in the present case with respect to each of the bases upon which the request was put, including that relating to procedural fairness.  The application put on that latter ground was said to arise in a different context than that in which the cases concerned with discovery were decided, and to require special consideration.  One difference, arguably, between the process undertaken by the court with respect to documents said to be immune from discovery, and the exercise with which we are presently concerned, is that the latter would require a higher level of judgment than what is essentially an assessment of a document’s character.  But in either case, in my view, there must be shown some basis for the court’s intervention beyond what is said to be necessary to satisfy an applicant’s concerns.  Accepting that those concerns are genuinely held, the exercise sought to be undertaken by the court would not produce for the applicant reasons which he might understand and accept, but a stated conclusion which is not reviewable.  Such a process is not one consonant with the role of a judge in our system.  In applications for production of documents it is undertaken because there is no alternative and because some ground is shown for it.

Here the court’s aid is not sought to ascertain the delegate’s reasons, so that an assessment might be made of what was relevant or influential and, then, whether those matters were brought to the applicant’s notice.  The delegate’s process of reasoning is here seen by reference to the departmental report which was adopted, and which was both logical and detailed in its terms.  No doubt has been cast on the sufficiency of the reasons.  The report stands as the delegate’s statement of what was relevant or influential in arriving at the conclusion stated, and there is nothing to which the applicant can point which might suggest some other factor operated on the delegate’s mind.  At this point it seems to me that the only warrant for the court’s intervention could be because the applicant is entitled to more information or because the court assumes there may have been something operating as influential, with respect to the decision reached, but which was not stated in the reasons.

Not every piece of information needs be made available to a person who would be affected by a decision.  Only that which is proposed to be taken into account in coming to a decision is to be provided, so that the person might have an opportunity to respond:  Kioa v West (1985) 159 CLR 550, 587, 627-9;  Minister for Immigration v Pashmforoosh (1989) 18 ALD 77;  Somaghi v Minister for Immigration (1991) 31 FCR 100, 119;  Heshmati v Minister for Immigration (1991) 31 FCR 123;  Telstra Corp Limited v Kendall (1994) 55 FLR 221, 230.  In R v Gaming Board for Great Britain (1970) 2 QB 417, Lord Denning MR considered that the obligation extended to “sufficient indications of the objections” raised against the applicants for certificates.  That appears to be a very general statement, and one which might extend to any allegation made.  There is however nothing further in the reasons to suggest this was intended.  The “objections” may be taken to refer to those the decision-maker held or considered to be of importance.

The applicant’s request of the court on the procedural fairness ground was limited to an assessment as to whether the matters brought to the applicant’s attention were a fair summary of all the information available to the delegate.  I have however also considered, in connexion with the ground, the other category of information relevant to judicial review, namely that which the delegate was obliged to take into account.  I have however disregarded the prospect that there might be some such information in the confidential material, favourable to the applicant but unknown to him, as too speculative.

In my view, absent some reason for doubting the summary of factors which is said to have led the delegate to conclude that the requirement of good character was not met, these being the matters brought to the applicant’s attention, the court should not examine the material upon which its was founded.  To do so would be to undertake an investigation and to assess what weight ought be given to pieces of information, without evidence or explanation from the delegate.  On the view I have taken of the matter I do not consider it would have been correct for the primary Judge to have viewed the material and I have refrained from doing so.

The Cross-Appeal

I have referred above to the issue concerning the contents of the affidavit of Mr Ho.  In my view, it could not be said to amount to a consideration which the delegate was bound to take into account.  I would allow the cross-appeal on this ground.  There then remains the other ground of the cross-appeal, which challenges the primary Judge’s finding that “the parties or the public could reasonably entertain an apprehension that the delegate might not have brought an impartial and unprejudiced mind to the reconsideration, so that the delegate (could) give ‘proper, genuine and realistic consideration to the merits of the case:’ Chan v Minister for Immigration, Local Government and Ethnic Affairs, (Gummow J, 11 December 1987, unreported)”.

In this case the issue, as to whether there could be a reasonable apprehension of bias, arose after the making of the decision.  The applicant submitted before the primary Judge, by reason of the method by which it can now be seen that the conclusion was arrived at, and by reference to a file note made available subsequent to the decision, there is properly raised the prospect that there was prejudgment of his application.

The test to be applied, when the issue arises, is whether a fair minded observer would be led, from the material, to conclude that the person making the decision might not have brought an impartial mind to the resolution of the matter:  Laws v ABT (1990) 170 CLR 70, 87. There is attributed to the hypothetical fair-minded observer, knowledge of the actual circumstances of the case:  Laws, 87;  Webb v The Queen (1994) 181 CLR 41, 55-6, 73;  Minister for Immigration v Mok (1994) 55 FCR 375,394.  That is a matter of some importance here.  In my view none of the four considerations listed by his Honour, the primary Judge, operating alone or together, support a conclusion that bias might reasonably have been apprehended. 

His Honour did not consider that the fact that the 1992 and 1994 reports were almost identical in their terms to be conclusive.  With respect to the reports his Honour noted however that a correction had not been made to the latter, to the additional time which had passed since the applicant’s last conviction.  His Honour was of the view that one might infer a lack of proper consideration of the facts.  His Honour did not suggest that this of itself affected the decision reached.  Rather his Honour seems to have considered that it said something of the approach taken to the applicant’s case.  It is possible to conclude that some lack of care may have attended the preparation of the later report.  I am unable to see that it could convey more.  There were however other factors identified by his Honour.

His Honour also considered that the attachment of the submission from the applicant’s agent, without an analysis of it, in circumstances where the affidavit of Mr Ho was not put before the delegate, and a file note suggesting a “view” held in the department, of which the delegate was an officer, combined with the firstmentioned error, led one to the conclusion that there may not have been a genuine consideration of the merits of the case. 

Whilst the factors are expressed to have a cumulative effect, it must be possible to draw something from them, which is strengthened when considered together.  The fair-minded observer, with knowledge of the circumstances, would know that, whilst the affidavit of Mr Ho was not provided, the agent’s submission contained a full enough summary of it, and that the delegate had been advised, by the terms of the report, to have regard to it.  This does not in my view enable the conclusion that the delegate would not, or was being advised not to, pay heed to the matters which had been raised either in the affidavit or the report.  As to the file note, the terms of it amount only to a prediction as to what the outcome might be.  It was not stated as a matter of policy within the department or as the view of the delegate.  Whilst the author of the note spoke as if others shared that view, as to the outcome of the application, and might have intended to refer to others in the department, there is no basis shown for the conclusion that it expressed a view held by the department, including the delegate.

It seems to me that the facts were such as to provide explanations and qualifications with respect to the consideration listed by his Honour the primary Judge.  With respect, I cannot see that a fair-minded observer could conclude that they displayed an approval to the decision-making process such that the prospect of pre-judgment could be said to be “firmly established”, as it is required to be:  Re:  J.R.L.;  ex parte C.J.L. (1986) 161 CLR 342, 352;  Gascor v Ellicott [1997] 1 VR 332.

Summary

I am of the view that the affidavit of Mr Ho was not a relevant consideration and the decision of the delegate ought not to have been set aside on this basis.  No further basis has been shown on the appeal for a conclusion that other relevant considerations were not taken into account.  As to the other grounds not dealt with by the primary Judge, concerning the questions as to the applicant’s character arising under the Migration Regulations, I consider there is no merit in them.  And, in my view, no proper basis in law is shown for the court to examine the confidential information itself.  As to the primary Judge’s other basis for remitting the matter, namely that there was a reasonable apprehension of pre-judgment, I am unable respectfully to agree that that conclusion could be reached. 

 

Conclusion

In my view the appeal should be dismissed.  The cross-appeal succeeds on both bases for remitter.  In these circumstances I would order that the order of his Honour the primary Judge be set aside and the applicant’s application for review dismissed with costs.  I would also order that the applicant pay the respondent’s costs of the appeal.

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:              19 September 1997

Counsel for the Applicant:	Mr LW Roberts-Smith QC with Mr Goldfinch
Solicitor for the Applicant:	Goldfinch & Co
Counsel for the Respondent:	Mr S Owen-Conway QC with Mr Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 July 1997
Date of Judgment:	19 September 1997