FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1271

PRACTICE AND PROCEDURE – Interrogatories – Proposed questioning of Minister in relation to a decision made by him personally not to revoke a decision to refuse a visa – Whether certain questions are objectionable on the basis of “fishing” – Whether questions should be excluded on the basis that they ask about motive – Oppression.

Migration Act 1958:  ss 5, 501, 501C, 503A

WONG TAI SHING v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N654 of 2002

WILCOX J

SYDNEY

18 OCTOBER 2002

THE COURT DIRECTS THAT:

1.                       The interrogatories served by the applicant be reserved with amendments to interrogatories 5 and 7 as discussed with counsel.

2.           The interrogatories are to be answered by 31 October 2002.

3.           The hearing date fixed for 15 October 2002 be vacated.

4.                       A new hearing date be appointed in the week commencing 4 November 2002 as notified by my associate.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     These reasons for judgment concern interrogatories proposed to be administered by the applicant, Wong Tai Shing, to the respondent, Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).

Background facts

2                     Mr Wong is a citizen of the People’s Republic of China (“China”).  According to a submission to the Minister made by his solicitors, he has lived most of his life in the seaport of Xiaman, where he worked for some years in the Customs Service.  In 1994 he moved to Hong Kong, where he was granted residence status.

3                     Mr Wong arrived in Australia on 22 August 1999.  He entered pursuant to a visitor’s visa.  Shortly after arrival, he applied for a student’s visa, on the basis that he wished to undertake a three year business management course.  On 12 November 1999 he was granted a student’s visa valid until 5 January 2001.  During 2000, Mr Wong undertook the first year of his course. 

4                     On 15 December 2000 Mr Wong applied for renewal of the student’s visa, in order to allow him to continue his course in 2001.  However, no decision was made in respect of that application until 22 January 2002, 13 months later.  In the meantime, Mr Wong remained in Australia pursuant to a bridging visa.  He remained in contact with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) and supplied medical and other information as required.  Peter Leung, Mr Wong’s solicitor, was also in contact with the Department, seeking to expedite a decision about the renewal application.

5                     On 22 January 2002 the Minister, acting personally under s 501(3) of the Migration Act 1955 (“the Act”), refused to grant a student visa.  Section 501 relevantly reads as follows:

“(1)     The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

(2)               The Minister may cancel a visa that has been granted to a person if:

(a)               the Minister reasonably suspects that the person does not pass the character test; and

(b)               the person does not satisfy the Minister that the person passes the character test.

(3)               The Minister may:

(a)               refuse to grant a visa to a person; or

(b)               cancel a visa that has been granted to a person;

if:

(c)                the Minister reasonably suspects that the person does not pass the character test; and

(d)               the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)               The power under subsection (3) may only be exercised by the Minister personally.

(5)               The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(6)               For the purposes of this section, a person does not pass the character test if:

(a)               the person has a substantial criminal record (as defined by subsection (7)); or

(b)               the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)                having regard to either or both of the following:

(i)                 the person’s past and present criminal conduct;

(ii)               the person’s past and present general conduct;

                        the person is not of good character; or

(d)               in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)                 engage in criminal conduct in Australia; or

(ii)               harass, molest, intimidate or stalk another person in Australia; or

(iii)             vilify a segment of the Australian community; or

(iv)             incite discord in the Australian community or in a segment of that community; or

(v)               represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

            Otherwise, the person passes the character test.

(7)               …

(8)               …

(9)               …

(10)           …

(11)           …

(12)           …”

6                     By a letter dated 25 January 2002, which was not received by Mr Wong until 7 February 2002, an officer of the Department explained that the grounds of the Minister’s decision were that “the Minister reasonably suspects that you do not pass the character test and the Minister is satisfied that refusal to grant a visa is in the national interest”.  The officer quoted the terms of sub-para (ii) of s 501(6)(c) of the Act.  This sub-paragraph makes no reference to the affected person having a criminal record or having engaged in criminal activities.

7                     On 7 February 2002 Mr Wong was arrested at his home by immigration officers and taken into detention.  At that time he was handed the letter of 25 January 2002 notifying refusal of his application for renewal of the student visa.  Mr Wong has remained in detention since 7 February.

8                     On behalf of Mr Wong, Mr Leung sought revocation of the refusal decision.  Provision for revocation is made by s 501C of the Act which relevantly provides:

“(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

(a)               refuse to grant a visa to a person; or

(b)               cancel a visa that has been granted to a person.

(2)               For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)               would be the reason, or a part of the reason, for making the original decision; and

(b)               is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)               As soon as practicable after making the original decision, the Minister must:

(a)               give the person, in the way that the Minister considers appropriate in the circumstances:

(i)                 a written notice that sets out the original decision; and

(ii)               particulars of the relevant information; and

(b)               except in a case where the person is not entitled to make representations about revocation of the original decision … - invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)               The Minister may revoke the original decision if:

(a)               the person makes representations in accordance with the invitation; and

(b)               the person satisfies the Minister that the person passes the character test (as defined by section 501).

(5)               The power under subsection (4) may only be exercised by the Minister personally.

(6)               …

(7)               …

(8)               …

(9)               …

(10)           …

(11)           A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.”

9                     The term “non-disclosable information” is defined in s 5 of the Act as follows:

“non-disclosable information means information or matter:

(a)               whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

                                                                           i.      prejudice the security, defence or international relations of Australia; or

                                                                         ii.      involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

(b)               whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c)                whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.”

10                  In his submission, Mr Leung said it appeared that, in making his decision to refuse the application for a visa, the Minister had “relied upon certain information contained in Departmental files the disclosure of which, it is alleged, is prohibited by s 503A of the Act”.  That information had not been disclosed to Mr Wong or Mr Leung.

11                  Section 503A(1) limits the extent to which a Commonwealth officer, performing functions under the Act, may divulge or communicate information that has been received from “a gazetted agency” on the basis that it would be treated as confidential information.  The term “gazetted agency” is defined in s 503A(9) as follows:

“gazetted agency means a body, agency or organisation that is:

(a)               responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and

(b)               specified in a notice published by the Minister in the Gazette.”

12                  On 28 May 2002 the Minister decided not to revoke his earlier decision.  This information was conveyed to Mr Leung in a letter from the Department dated 7 June 2002.  No reasons were given.  However, the Department enclosed a copy of the Minute sent to the Minister concerning the application for revocation.  This Minute annexed papers related to the earlier decision.  It appears from the Minute and its annexures that, when the Minute was sent to the Minister, the annexures included a copy of the information allegedly covered by s 503A (“the s 503A information”).  However the s 503A information was not provided to Mr Leung.

13                  It was common ground, during the argument before me on interrogatories, that the Minister must be taken to have had in mind the s 503A information when he made his decision not to revoke his earlier decision.

14                  Prior to the Minister’s decision about revocation, Mr Wong had instituted a proceeding in this Court challenging the legal validity of the Minister’s decision to refuse his application for a student visa.  This proceeding was heard by Tamberlin J on 12 June 2002.  On 6 August 2002 his Honour gave judgment, dismissing the proceeding: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 959.   The parties agree that no relevant issue estoppel arises out of that judgment.

The present proceeding

15                  On 5 July 2002 Mr Wong instituted the present proceeding, whereby he challenged the legal validity of the Minister’s decision not to revoke his earlier decision.  The proceeding was founded on s 39B of the Judiciary Act 1903 but the filed Application gave no information about the grounds of alleged invalidity.  Despite a subsequent Amended Application, these may still only be gleaned from two affidavits made by Mr Leung.  However, it is clear that one of those grounds is that the Minister refused to revoke the earlier decision in order to achieve the purpose (extraneous to the Act) of securing Mr Wong’s return to China (and perhaps Hong Kong in particular) and thereby enabling Chinese (or Hong Kong) law enforcement authorities to interrogate him. 

16                  The assumption underlying this ground of alleged invalidity is that the s 503A information considered by the Minister emanated from China, or Hong Kong in particular.  That assumption seems to be based on three circumstances, each of which appears to be uncontentious:

(i)                  these are the only places where Mr Wong lived before coming to Australia;

(ii)        there is no suggestion that he has been guilty of any crime or inappropriate behaviour since his arrival in Australia; and

(iii)       generally speaking, a non-citizen who does not hold a visa will be removed from Australia (under s 198 of the Act), ordinarily to his or her country of nationality.

17                  A similar ground of extraneous purpose was raised in the proceeding heard by Tamberlin J.  It failed for want of evidence.  In a presumable endeavour to avoid the same result in the present case, Mr Wong’s solicitors sought to administer interrogatories containing the following seven questions:

“1.       When did the Respondent first receive the protected information contained in the documents C1-10 annexed to the Minute dated 22.01.02?

2.             Who, or what entity, gave that protected information to the Respondent?

3.             Was this protected information annexed to the Minute dated 09.05.02, being the Minute concerning the Respondent’s decision pursuant to s.501C?

4.         At the time of the Respondent’s decision pursuant to s.501C, did the Respondent believe that the person or entity who supplied the protected information:

            (a)        intended to take the Applicant into custody; and/or

            (b)        intended to interrogate or otherwise question the Applicant

            should the Applicant come within that person’s or that entity’s territorial jurisdiction?

5.         Was the Respondent’s purpose in making his decision pursuant to s.501C to return the Applicant to the abovementioned person’s or entity’s territorial jurisdiction?

6.         If the answer to question 5 is yes, was this the Respondent’s sole purpose?

7.         If the answer to question 5 is no:

(a)               what was the Respondent’s purpose in making that decision;

                        and

(b)        was the Respondent aware that the consequence of refusing to revoke the initial refusal to grant the Applicant’s visa application, would be to return the Applicant to the abovementioned territorial jurisdiction?”

18                  A draft of these interrogatories was provided at a directions hearing on 26 September 2002.  I granted leave to the applicant to administer the interrogatories, subject to all proper objections.  As the solicitor for the Minister had not had an opportunity to obtain instructions about the questions, I reserved liberty to the parties to apply in relation to any disputed objection.

19                  The solicitor for the Minister subsequently notified a dispute and I heard argument about it on 10 October 2002.  On that occasion Mr T Reilly of counsel appeared for the Minister.  He advanced three grounds of objection to interrogatories 4 to 7 inclusive and contended that, if they were set aside, interrogatories 1 to 3 would serve no purpose and, therefore, should also be set aside.  Mr Reilly identified his three grounds of objection as “fishing”, that “interrogatories as to motive are objectionable” and oppression.

20                  At the conclusion of the argument, I ruled that, as a matter of principle, the interrogatories should be answered.  After discussion I fixed a date, 31 October 2002.  I said I would later provide written reasons. 

21                  However, the argument had revealed defects in the form of two questions.  I directed these be amended.  Question 5 was to be made to inquire whether it was “a purpose of the Respondent in making his decision pursuant to s501 that the Applicant would be returned to the abovementioned person’s or entity’s territorial jurisdiction”.  I directed that sub-question (b) of question 7 be deleted.  I thought it incorrectly assumed that return to a particular jurisdiction was an automatic and inevitable consequence of refusal of an application for revocation.

22                  Interrogatories amended in accordance with these directions have now been filed.

23                  I now set out my reasons for ruling, as a matter of principle, that the interrogatories should be answered.

“Fishing”

24                  In arguing this ground, Mr Reilly cited a number of authorities concerning discovery of documents.  He argued there was no difference in principle between requiring a party to make discovery of documents and requiring a party to answer interrogatories.  That view was not challenged by Mr R B Wilson, counsel for Mr Wong.  I adopt it.

25                  There are numerous decided cases dealing with the objection called “fishing”.  I do not find it necessary to refer to them all.  As a general observation, it may be remarked that judicial disapprobation of “fishing” has somewhat subsided in recent years, perhaps for the reason expressed by Burchett J (with the agreement of Lockhart and Gummow JJ) in Caltex Refining Co Pty Limited v The Amalgamated Metal Workers’ Union (6 December 1990, unreported):

“This objection to applications for discovery of documents does not now have the weight it was once thought to have.  Perhaps it should be seen as a metaphor with more colour than substance.  Modern procedures actually provide as something desirable for what might once have been criticised as fishing – see Order 15A of the Rules of this Court, particularly Rule 6.  It would be ironic if the Court refused an applicant, on this basis, discovery after action, when discovery could have been obtained (at the expense of incurring extra costs) by an application before action.

Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice.  The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression.”

26                  In Canwest Global Communications Corp v Australian Broadcasting Authority (16 June 1997, unreported) Hill J posed as the test, in distinguishing between unacceptable “fishing” and acceptable questioning, whether an application for discovery was “an attempt to determine whether there is a case to be made out under some head of judicial review”, as distinct from “the need … to have evidence to show whether the case that has been sought to be made out in fact is made out”.  A Full Court (Beaumont, Burchett and Emmett JJ) refused leave to appeal against Hill J’s decision: see Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp (30 June 1997, unreported).  After referring to earlier cases, and noting the trend discussed by Burchett J in Caltex, their Honours said:

“Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party’s documents may be relevant, the Court will have a discretion to order discovery.”

27                  It is not suggested that the present proceeding represents an abuse of process.  There are no formal pleadings, but there is a clear allegation of extraneous purpose.  If that allegation is made good, it is arguable (I do not offer a concluded view) that it raises a ground of challenge that would not be excluded by s 474 of the Act.  The argument foreshadowed by Mr Wilson is that an extraneous purpose of this nature is inconsistent with the Hickman principle requirement of good faith.  It follows that the Canwest approach dictates rejection of the objection as to “fishing”. 

28                  Although it is unnecessary to determine the issue, I suggest the present case meets even the older test enunciated by Brennan J (with whom Bowen CJ agreed) in W A Pines Pty Ltd v Bannerman (1980) 41 FLR 169 at 181:  “sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery”.  I agree with Tamberlin J that there is not yet evidence that the Minister pursued an extraneous purpose in refusing to renew Mr Wong’s visa (and refusing to revoke his refusal).  It may be that the Minister has not in fact pursued an extraneous purpose.  However, material that grounds a suspicion may fall well short of being evidence of the fact.

29                  The documentary evidence establishes that, in making both his decisions, the Minister had before him information (apparently the same information both times) which the Department thought was subject to s 503A of the Act.  The evidence does not reveal the source of the information.  However, having regard to the definition of “gazetted agency”, the source must have been a body, agency or organisation responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in Australia or elsewhere.  As it is conceded there is no complaint about Mr Wong’s conduct in Australia, it seems likely that the relevant agency was a foreign agency.  It is not possible to identify the relevant foreign country, but it is common ground that Mr Wong lived only in “mainland” China and Hong Kong before coming to Australia.  Although there is no fixed rule, the likelihood is that any removal of Mr Wong from Australia would be to China; perhaps Hong Kong in particular.

30                  The evidence does not indicate the nature of the conduct referred to in the s 503A information.  As the Minister chose to rely on sub-para (ii) of s 501(6)(c) of the Act, rather than s 501(6)(a) or s 501(6)(c)(i), the information presumably did not refer to proven criminal conduct by Mr Wong.  Yet the information must have suggested serious delinquency by Mr Wong; otherwise, it is inconceivable that the Minister would have thought it proper to refuse the visa application “in the national interest” and without according natural justice to Mr Wong under the procedure provided by s 501(1).

31                  The available snippets of information, and this reasoning, provide some support for the theory that one or more Chinese, or Hong Kong, agencies provided to the Department information suggesting that Mr Wong may have been involved in conduct in their jurisdiction that is of interest to it, or them, in relation to law enforcement, criminal intelligence or investigation or security intelligence.  If so, it would be rational to assume that this authority, or these authorities, would wish to interrogate him if he were returned to their jurisdiction; and that this would be apparent to the Minister.  It is another question whether making Mr Wong available for interrogation was a purpose of the Minister, as distinct from an understood consequence of any decision to refuse revocation.  It may be difficult for Mr Wong to make out that element at trial.  However, the present question is only whether there is a ground for suspicion.  In the absence of evidence about the content of the s 503A information, and reasons for the Minister’s decision, there is room, at least, for a suspicion about that matter.

32                  Accordingly, I rejected the “fishing” objection to the interrogatories.

Interrogatories as to motive

33                  Mr Reilly’s second ground of objection is ultimately based on one sentence in a judgment of Webb J, of the Victorian Supreme Court, in Service v Coote [1891] VLR 40.  In dealing with objections to interrogatories in a trade mark infringement case, his Honour said (at 42):  “One party is not entitled to interrogate another as to why he did something or another”.  Webb J did not elaborate this statement, either by referring to supporting principle or decided authority or by qualifying the generality of his remark.

34                  Evatt J followed Service v Coote, in a secondary boycott case in this Court, Navair v Transport Workers’ Union of Australia (1981) 52 FLR 177 at 195.  He also omitted to elaborate or justify his view.

35                  In many cases, motive is irrelevant.  To repeat an example given in argument, it does not matter why a respondent has breached s 52 of the Trade Practices Act 1974; if the respondent, being a corporation, has engaged in misleading or deceptive conduct, that will be the end of the matter regardless of motive.  Motive being irrelevant, it would be inappropriate to allow interrogation concerning the respondent’s motive.  I think the same observation may be made about a trade mark infringement case.

36                  However, motive is not always irrelevant, even in civil litigation: see the examples given in Phipson on Evidence (13^th ed, 1982) at paras 11-16 to 11-20.  Where motive is relevant it is a proper subject of evidence.  As has been said, “the state of a man’s mind is as much the subject of evidence as the state of his digestion”.  Under such circumstances, I see no justification in point of principle, or logic, for barring interrogatories as to motive.

37                  In the present case, there is an allegation of extraneous purpose.  The Minister’s purpose in deciding not to revoke the refusal decision is at the heart of this issue.  Accordingly, questions going to the Minister’s belief about relevant matters (question 4) and his purpose (question 5) are plainly relevant questions.  It would be wrong to exclude them on the basis of a general statement made in a different context.

38                  For these reasons I rejected the second basis of objection.

Oppression

39                  The submission of oppression is founded upon Grofan Pty Limited v Macauley (1993) 43 FCR 404.  In that case Heerey J was concerned with an application to administer interrogatories to a magistrate who had issued search warrants.  The proposed interrogatories involved over 150 separate questions.  The report of the case does not reveal the extent of the delay that had occurred between the issue of the search warrants and the application to administer interrogatories.

40                  In rejecting the application on the ground of oppression, Heerey J made a number of points that distinguish that case from the present.  First, the power exercised by the magistrate was one frequently conferred on judicial officers, whom “it would seem highly undesirable” should be subjected to interrogation in relation to performance of their official duties.  Second, the magistrate was in a position of neutrality in the litigation.  He was not an active party.  Heerey J quoted the well-known statement of the High Court about the position of the Australian Broadcasting Tribunal in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.  Third, the applicant before Heerey J wished to interrogate the magistrate, not about his own conduct or purposes, but in order to ascertain what information had been put before him by the police officer who sought the warrant.  His Honour pointed out that this information could be obtained more readily by issuing a subpoena to produce relevant documents.

41                  The present case does not involve a function typically assigned to a judicial officer.  The Minister does not adopt a neutral stance; he actively opposes the applicant’s case.  The interrogatories are concerned with the Minister’s own knowledge, belief and purposes; matters that cannot otherwise be established.  Moreover, the application is made against the background of s 503A of the Act, with its exclusion of the usual right of an affected person to know the nature of material about his conduct that has been considered by a statutory decision-maker.  The questions are few in number and relate to a recent, well-documented decision about which even a busy Minister would not be expected to have difficulties of recollection.

42                  I reached the conclusion that it would not be oppressive to require the questions to be answered.

Conclusion

43                  Mr Reilly did not argue that it was objectionable, in itself, to require a statutory decision-maker to answer interrogatories in relation to the making of his or her decision.  I think that was realistic.  If this was a proper ground of objection, many of the authorities would have been decided more simply (and sometimes differently) than they were.

44                  As I reached the view that there was no merit in any of the three argued grounds of objection, I thought it appropriate to require the questions to be answered, subject to the amendments I have mentioned.

Associate:

Dated:              18 October 2002