FEDERAL COURT OF AUSTRALIA

Kwok v Minister for Immigration & Multicultural Affairs [2001] FCA 1566

Migration Act 1958 (Cth) s 503A, 424A, 424B

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 referred to

Pasini v Boland (1999) 92 FCR 438 referred to

Rasel v Minister for Immigration & Multicultural Affairs [2001] FCA 443 referred to

YIN FONG KWOK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 941 OF 2001

N 1443 OF 2001

HELY J

1 NOVEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an adjournment of the proceedings is refused.

2.                  The application for an order of review of the decision of Refugee Review Tribunal given on 7 June 2001 is dismissed with costs, those costs to include costs of the motions for an adjournment of the proceedings, and the motion for expedition of the appeal in N 1443 of 2001.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I have before me a Notice of Motion in which the applicant seeks that these proceedings be adjourned pending the outcome of the appeal in matter N 1443 of 2001.  I also have a Notice of Motion before me seeking that the hearing of that appeal be expedited.  The matter arises in this way:  the applicant applied for a protection visa; her application was refused by the Minister's delegate, and she sought review of that decision before the Refugee Review Tribunal (“RRT”).  RRT’s decision was given on 7 June 2001 and it affirmed the decision not to grant a protection visa.  The present proceedings are an application for review of that decision.

2                     RRT had before it the departmental files.  However, RRT noted that about 100 documents or parts of documents had been removed from those files, apparently in late March or early April 2001, on the basis that they contained information protected under s 503A of the Migration Act 1958 (Cth) or information that would identify material protected under s 503A.  RRT did not have access to that material. 

3                     At the hearing held before RRT, and in correspondence at about the time of the hearing, the applicant requested that RRT defer its decision until the information contained in the documents which had been removed from the files was made available to the applicant, or until the finalisation of the freedom of information (“FOI”) process which the applicant had instituted in relation to production of those documents had occurred.  The FOI proceedings were confined to obtaining the name of the agency which had supplied the information to the Department of Immigration & Multicultural Affairs (“DIMA”), and any request made by that agency that the information supplied should be kept confidential.

4                     RRT refused to defer giving its decision.  One of the reasons for that refusal was that the applicant has been in immigration detention since 5 January 2001.  The FOI application was unsuccessful at the departmental level.  Proceedings in the Administrative Appeals Tribunal (“AAT”) were also unsuccessful.

5                     There was an appeal from AAT’s decision to Tamberlin J.  Tamberlin J dismissed the appeal on two grounds.  The first was that the information which was sought, namely, the name of the agency and the terms of the request for confidentiality, was itself information which was protected by s 503A; the second, that it had not been established that the AAT had made an error of law in reaching its decision.

6                     The issue before Tamberlin J was the legal question of whether the documents, or the information in the documents the subject of the FOI request, were confidential information in terms of s 503A.  No case was made before Tamberlin J, or for that matter before AAT that the preconditions to the operation of s 503A had not in fact been satisfied.  No attempt was made to force DIMA to prove those facts, as, for example, by the issue of a subpoena or notice to produce seeking production of the documents in question.

7                     The application for review which is listed for hearing before me this morning originally raised two grounds.  The first was a failure on the part of RRT to comply with s 424A and s 424B of the Act.  The second was jurisdictional error on the part of RRT in deciding not to defer a decision until finalisation of the freedom of information process.  The outcome of the appeal from Tamberlin J’s decision is not germane to the availability or otherwise of either of those grounds.  It is common ground that RRT was not in possession of the information because of the provisions of s 503A(2)(c).  Whether in those circumstances, s 424A and s 424B could have any relevant operation would be unaffected by the decision on the appeal.  Further, the outcome of the appeal could not bear upon the availability of the second ground.  Either RRT committed a jurisdictional error by failing to adjourn the proceedings or it did not.  The outcome of the appeal does not bear on that question. 

8                     Shortly prior to the hearing a third ground was added to the application to the effect that the procedures that were required to be observed by the provisions of s 418 of the Act were not observed in connection with the making of the decision.  In substance that ground sought to take the point that the information to which I have referred was in the possession of the Department and was not delivered to the RRT as required by s 418(3).  It is submitted that information should have been delivered to RRT unless s 503A(2)(c) applied so as to preclude the provision of that information to RRT.

9                     There is no information before me which suggests the existence of a real practical possibility that the preconditions to the operation of s 503A have not been satisfied.  I would infer that information has been communicated to an authorised migration officer.  All law enforcement, criminal intelligence, criminal investigation, and security intelligence organisations of the Peoples Republic of China are within the notion of a gazetted agency.  There is no factual foundation which would support as a real practical possibility that the preconditions to the operation of s 503A have not been complied with. 

10                  Even if the appeal from Tamberlin J were successful it would only result in the disclosure of the name of the agency which supplied the information, and the request for confidentiality.  Unless that information disclosed that the preconditions to the operation of s 503A had not all been complied with, (and there is no reason to assume that it would) the breach of s 418(3) would be confined to a failure to provide that information to the applicant.  That breach, assuming it to have occurred, would be technical in character, and in the exercise of this Court’s discretion would not result in the remission of the application to RRT for reconsideration.

11                  It seems to me that the applicant is engaged in a fishing expedition in the hope that something might turn up.  If one could see that there was a realistic prospect that there was something there which would be germane to the outcome of this application then that might be one thing.  But given that the applicant is in detention, given the cost to the public purse of keeping her there, given the public interest in the determination of these applications as quickly as is reasonably practical consistently with their just disposition, it seems to me that a case for further adjournment of these proceedings has simply not been made out.  I refuse the application.

12                  Mr Karp, counsel for the applicant, does not abandon any of the grounds contained in the Amended Application for an Order of Review.  However, he recognises, correctly in my view, that there is nothing which he can responsibly put in support of the first and third grounds specified in the application in the light of my refusal of his client's adjournment application.  His submissions, both oral and in writing, have therefore been confined to Ground 2.  Ground 2 alleges that RRT committed a jurisdictional error in deciding not to defer a decision on the application before it until the finalisation of the freedom of information process.

13                  As a matter of substance, this is not a challenge to RRT’s decision affirming the decision for the Minister's delegate not to grant a protection visa.  It is really a challenge to RRT’s refusal to delay giving a decision, which is not a “decision” for the purposes of s 476 at all: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 at 306-311, Pasini v Boland (1999) 92 FCR 438 and Rasel v Minister for Immigration & Multicultural Affairs  [2001] FCA 443.

14                  Mr Karp seeks to overcome that problem by submitting that in refusing to defer the making of a decision, RRT put itself in danger of non-compliance with relevant provisions of Part VII of the Act because unless the information in question was protected by s 503A, it ought to have been supplied to RRT and RRT should have communicated the information to the applicant pursuant to s 424A.

15                  I have some difficulty with this submission, and I am unclear as to precisely what it means or where it leads.

16                  RRT gave its reasons for declining to postpone the making of a decision:

“The applicant has been in immigration detention since 5 January 2001 and the Tribunal had clearly indicated on a number of occasions that it was not prepared to delay making a decision indefinitely.”

17                  The fact that the applicant was in detention is clearly a relevant consideration.  What weight was to be attached to that consideration having regard to competing considerations was a matter for RRT to assess.  The making of that assessment does not involve any jurisdictional error on the part of RRT.

18                  As I have already said, the freedom of information proceedings were confined to ascertaining the name of the agency which had supplied the information as well as the request for confidentiality.  When the adjournment was sought in about April 2001 it was not clear how long the freedom of information proceedings would take to reach their final resolution.  It was not clear that the freedom of information proceedings would be successful.  Even if those proceedings were successful, it was not clear that the result of that success would have been the provision of material which was germane to the decision which the RRT had to reach.

19                  In all of those circumstances, I am unable to discern any reviewable error on the part of the RRT in declining to accede to the adjournment application which was put to it.  This ground of review therefore fails and the Application for an Order of Review should be dismissed with costs.  In the light of that decision the applicant does not press the motion for expedition of the appeal from Tamberlin J.

Associate:

Dated:              6 November 2001