FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975

PRACTICE AND PROCEDURE – non-compliance with rules – whether letter from applicant invoked Court’s jurisdiction – power exercised to waive non-compliance with rules.

MIGRATION – cancellation of visa – failure to pass character test – whether respondent’s decision to cancel visa a decision made under the Migration Act – procedural fairness – whether partial mis-description of offences and failure to grant interview to applicant led to jurisdictional error – certain adverse information in documents (“the Documents”) placed before respondent at time decision made to cancel visa – at trial of application respondent claimed privilege (public interest immunity) in respect of the Documents – asserted that existence of that privilege self-evident on the face of the Documents – unrepresented applicant called for production to him of the Documents – respondent consented to Court examining the Documents – balancing of the relevant public interests – claim for privilege rejected and no direction made under s 130(1) of the Evidence Act 1995 (Cth) – the Documents admitted into evidence – order made restricting access to the Documents to Judges of the Court – whether respondent denied procedural fairness to the applicant by not disclosing the substance of the Documents to the applicant regardless of whether they contained “non-disclosable information”.

Migration Act 1958 (Cth), ss 5, 474, 501, 501G(1)(e)

Evidence Act 1995 (Cth), s 130

Federal Court of Australia Act 1976 (Cth), s 50

Kioa v West (1985) 159 CLR 550 at 629 applied

Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155 referred to

Sharif v Minister for Immigration & Multicultural Affairs [1999] FCA 278 referred to

Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 referred to

D v National Society for the Prevention of Cruelty to Children [1978] AC 171 referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 followed

Attorney-General for New South Wales v Smith (1996) 86 A Crim R 308 at 311-312 referred to

Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 followed

Javillonar v Minister for Immigration & Multicultural Affairs (2001) FCR 311 followed

WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 distinguished

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437 followed

Ball v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 699 followed

Gilson v Minister for Immigration and Multicultural Affairs, 21 July 1997 BC9703148 referred to

Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 referred to

Muin v Refugee Review Tribunal [2002] HCA 30 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 referred to

WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W306 of 2002

CARR J

16 SEPTEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.         The letter dated 4 January 2002 (and its enclosures) from the applicant to the Court lodged with the Court on 10 January 2002, stand as the application in this matter. 

2.         In relation to the form of that application, compliance with so much of the Federal Court Rules as might otherwise prevent the Court from reviewing the respondent’s decision, made on 29 November 2001, to cancel the applicant’s BT Transitional (permanent) visa (“the respondent’s decision”), for the purpose of ascertaining whether it was a decision made under the Migration Act 1958 (Cth) and, if so, whether it is reviewable under that Act, be waived.

3.         The respondent’s objection (by notice filed on 20 November 2002) to the competency of the application filed on 31 October 2002 be dismissed with no order as to costs.

4.         The document referred to in these reasons as “Annexure L”, which was the subject of an order made on 15 August 2003, is admitted into evidence as Exhibit “A4” but shall remain in a sealed envelope marked “Annexure L” which is not to be unsealed other than by a Judge of this Court or until further order.

5.         The respondent’s decision is quashed.

6.         The respondent pay the applicant’s costs limited to such disbursements as the District Registrar consider reasonable in relation to the preparation, filing and service of the application, affidavits and submissions.

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

REASONS FOR JUDGMENT

introduction

1                     In this matter the Court has to decide the following questions.  First, whether a handwritten letter dated 4 January 2002 lodged with the Court on 10 January 2002 is, or should be treated as, a valid application for judicial review of the respondent’s decision, made on 29 November 2001 (notice of which was not given to the applicant until 14 December 2001), to cancel the applicant’s visa.  If not, what is the status, if any, of a document subsequently filed by the applicant (on 31 October 2002) headed “Application for Extension of Time to File and Serve Notice of Appeal”, which the respondent says is an incompetent application for an order of review?  The respondent has filed a Notice of Objection to Competency challenging the Court’s jurisdiction to hear that application as being out of time, and asserting that the Court has no power to extend the relevant time – see s 477(1) and (2) of the Migration Act 1958 (Cth) (“the Act”).  Another question is whether the respondent’s decision was, as a matter of law, a decision “made under” the Act for the purposes of Part 8?  That question involves consideration of a claim for privilege or public interest immunity in respect of some information which was not made available to the applicant.  If the respondent’s decision was made under the Act, the final question is whether any grounds for review have been made out, notwithstanding the provisions of ss 474 and 476 of the Act?  

factual background

2                     The applicant was born in Sri Lanka on 12 April 1961 and is a citizen of that country.  He first arrived in Australia on 2 February 1989, entering on a student visa.  The applicant has remained in Australia since that date.  Since 21 February 1995 he has remained under a BF Transitional (permanent) visa for an indefinite stay period.  He studied, but did not complete, various courses at various institutions until imprisoned for the criminal offences to which I now refer. 

3                     On 31 July 1998 the applicant was found guilty (having pleaded not guilty) of three counts of sexual penetration without consent.  On 25 September 1998 he was sentenced by the District Court of Western Australia for those three offences to three terms of imprisonment, being four years on one count and two years cumulatively on each of the other two counts, i.e. a sentence of eight years, with a direction of eligibility for parole.  The appellant appealed against the convictions to the Court of Criminal Appeal.  On 11 October 2000 those appeals were dismissed. 

4                     On 18 September 2000 an officer of the respondent’s Department gave written notice to the applicant that consideration was being given to cancellation of his visa pursuant to s 501 of the Act.  The cancellation grounds were set out in that notice (by reference to various provisions of s 501, a copy of which was enclosed with the notice) and the applicant was invited to submit any comment which he believed relevant to the consideration of the issue of visa cancellation.  The applicant responded to that invitation by letter dated 11 October 2000. 

5                     On 4 September 2001 another officer of the respondent’s Department, Mr C Hutchinson, wrote to the applicant, referring to the letter of 18 September 2000 and enclosing a copy of the then up-to-date Minister’s Direction No 21.  All references to Mr Hutchinson in these reasons are references to him as an officer in the Cancellation Section of the respondent’s Department.  The letter invited the applicant to comment “against the new Direction” and stated that if he did not respond by 25 September 2001 a decision on whether there were grounds to cancel his visa would be made using information already held by the Department.  The letter was headed “NOTICE OF INTENTION TO CONSIDER CANCELLING A VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958”.  The applicant acknowledged receipt of that notice on 7 September 2001 and responded to the invitation by letters dated 23 and 25 September 2001.  He declined to provide a response to Mr Hutchinson but sent his submissions direct to the respondent.  The result was that the submissions were duly forwarded to Mr Hutchinson.

6                     On or about 29 November 2001, Mr Hutchinson submitted to the respondent a document which I shall call a “briefing minute” seeking his decision about whether the applicant passed the character test under s 501(6) and, if not, whether his visa should be cancelled pursuant to s 501(2) of the Act.

7                     The briefing minute was in a familiar form.  It set out the applicant’s personal details, the imposition of the prison sentences referred to above (including the remarks of the sentencing judge) and what might be termed the migration history of the applicant since he first entered Australia on 2 February 1989 as a student.   

8                     On 29 November 2001, the respondent cancelled the applicant’s visa pursuant to s 501(2) of the Act.  On 14 December 2001, Mr Hutchinson forwarded to the applicant notice of that cancellation in the form of a letter of that date.  The letter contained this statement:

‘I enclose with this Notice:

·          a copy of the decision record that sets out the reasons for the decision (other than non disclosable information);’

9                     The enclosure comprised the briefing minute (10 pages) and a page (page numbered 11) recording the respondent’s decision in these terms: 

‘(d)      I reasonably suspect that Mr Lloyd Nirmaleen FERNANDO does not pass the character test and Mr Lloyd Nirmaleen FERNANDO has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.

Philip Ruddock

Minister for Immigration and Multicultural Affairs

Date:  29.11.01’

10                  On 4 January 2002, the applicant sent a letter to this Court which was received on 10 January 2002.  The letter was addressed to the “Registrar (or Deputy Registrar)” of the Federal Court of Australia at 1 Victoria Avenue, Perth.  The material parts of that letter read as follows: 

‘Dear Registrar,

This is to inform you that I have to lodge my appeal against the decision of Minister of Immigration on my Permanent Residency Visa.  AAT (Commonwealth) has not been able to find provisions which would give it the jurisdiction in respect of the decision which I need to have reviewed.  Therefore, I am appeal to the Federal Courts on the grounds (or facts) produced in my handwriting on the copy of the document I received on 21/12/01 from Perth Immigration Department.  It was handed over to me on 21/12/01 by the Supervisor who was on duty at K-Block (ACACIA PRISON) on 21/12/01.’ (Emphasis added)

11                  In the letter the applicant sought exemption from fees, and a hearing date after April 2002.  There were numerous enclosures in the letter, including correspondence with the Administrative Appeals Tribunal from which it was clear that the applicant had previously sought (a few days earlier) to have the Tribunal review the Minister’s decision.  Another enclosure (referred to in the passage from the letter set out above) was a copy of the notice of visa cancellation on which the applicant had written the grounds upon which he sought to challenge the respondent’s decision to cancel his visa. 

Whether the applicant’s letter should be treated as a valid application

12                  The letter, as an application, is defective in form in a number of respects.  It does not comply with Order 54A of the Federal Court Rules, nor is it in the form of Form 5 or Form 56A, being the Order and forms relevant to applications under s 39B of the Judiciary Act 1903 (Cth).  However, the authorities show that, where appropriate, the Court may waive the formal requirements. 

13                  In my opinion, the applicant’s letter of 4 January 2002 sufficiently evidences the applicant’s wish to engage the processes of this Court, that is, to invoke its jurisdiction to challenge the respondent’s decision, as to be treated as an application under s 39B of the Judiciary Act for judicial review of the respondent’s decision, and for relief by way of a constitutional writ: see Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155, Sharif v Minister for Immigration and Multicultural Affairs [1999] FCA 278, Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611.  I think that the Court’s jurisdiction was invoked when that letter and its enclosures were lodged on 10 January 2002. 

14                  In the exercise of that jurisdiction and the power conferred by Order 1 rule 8, I dispense with compliance on the applicant’s part in relation to the form of his application with so much of the Federal Court Rules as would prevent the Court from reviewing the respondent’s decision for the purposes of ascertaining whether it was a decision made under the Act and, if so, whether it was reviewable under the Act.

15                  In those circumstances the application is within time.  The respondent, not being aware of the applicant’s first approach to the Court, filed the Notice of Objection to Competency referred to above.  I think that the appropriate order in relation to that objection to competency is (as the respondent submitted, should I form the view referred to in paragraph [13] above) to dismiss it with no order as to costs.  I will do so.  I now turn to the challenges which were raised by the applicant in relation to the respondent’s decision. 

was the respondent’s decision made within jurisdiction?

16                  The applicant was not represented.  He lodged over 750 pages of submissions, which he updated at various stages.  As a result of that process of updating, I reviewed a total of well over 1000 pages of his submissions.  Nearly all of them were irrelevant to the matters which I have to decide.  The submissions included other documents such as transcripts of evidence in the criminal proceedings and correspondence.  The applicant also tendered two affidavits. 

17                  Much of the documentation submitted by the applicant was repetitive.  Nearly all of it went to the alleged injustice of his three convictions in the District Court of Western Australia on 27 July 1998.  The submissions included allegations of misconduct on the part of the police, the prosecution, the trial judge, the various counsel who appeared for the applicant, and the malfunction of the judicial system generally.  There were also numerous submissions challenging factual matters set out or referred to in the briefing minute. 

18                  I have examined the documentation with a view to isolating any possible indications of jurisdictional error or other legal error which might have the result that the respondent’s decision was not made under the Act.  I was also assisted at trial in that process, most fairly, by counsel for the respondent, Ms L B Price.  I should add, as a matter of fairness to Ms Price, that she made it quite clear that she did not see it as part of her role as counsel for respondent to make a case for the applicant.

19                  In my view, the only matters raised either by the applicant or by counsel for the respondent were as follows.  First, the description of the three convictions in the briefing paper submitted to the respondent.  Secondly, the applicant’s complaint that he should have been granted an interview by the respondent or his Department before the visa was cancelled, and thirdly whether there had been a denial of natural justice in relation to what was said to be some “non-disclosable information” which was placed before the respondent with the briefing minute in respect of which the respondent claimed privilege or public interest immunity.  I shall deal with those matters in that order. 

20                  The first mention of the applicant’s convictions in the briefing minute was in the following terms:

‘CONSIDERATION OF VISA CANCELLATION

Grounds

[2] Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)), and the person does not satisfy the Minister that he or she in fact passes the character test (s 501(2)(b)).  Under Section 501(6)(a), a person does not pass the character test if he or she has a substantial criminal record within the meaning of s 501(7). 

[3] Under s 501(7)(c), a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.

[4] On 27 July 1998, Mr FERNANDO was sentenced by the District Court of WA for the following s 501(7)(c) applicable offences:

      3 charges of SEXUAL PENETRATION WITHOUT      imprisonment for 8 years

      CONSENT AGGRAVATED.

[5] Mr FERNANDO Appealed each conviction to the Court of Criminal Appeal.  Each application was dismissed on 11 October 2000.

It is open for you to find on the above facts that there is a reasonable suspicion that Mr FERNANDO does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months of more.’

21                  Later in the briefing minute, there was the following further reference to the convictions.

‘[11] Mr FERNANDO has convictions for the following offences:

27 July 1998          SEXUAL PENETRATION WITHOUT        X3     8 yrs imp.

                              CONSENT AGGRAVATED,

[12] Mr FERNANDO appealed to the Court of Criminal appeals (sic); his claims were dismissed on 11 October 2000.

A copy of Mr FERNANDO’s criminal history is at Annex B. 

[13] The sentencing remarks of DCJ Williams indicate the seriousness with which the court viewed the offences:

      In my view there are a number of aggravating features in relation to this matter.  The first is the particular vulnerability of the complainant due to her below average intelligence and severe deficit in the area of social and communication skills…

      In my view, the offender’s attitude was predatory … he must have known at the time that she was intellectually disadvantaged.  The variety of penetration, one act of vaginal intercourse and one act of anal intercourse, each in my view was a distinct act which would no doubt cause an accumulated trauma to the complainant…

      In my view, these offences are serious and I have come to the conclusion that the head sentence in relation to these offences should be a term of imprisonment of 8 years.’

22                  The essence of the applicant’s complaint is as follows.  He says, quite rightly, that he was originally charged with eight counts of aggravated sexual penetration contrary to s 326 of the Criminal Code (WA) and one count of indecent assault contrary to s 324 of that Code.  After the committal proceedings those charges were withdrawn and replaced with an indictment containing six counts.  He was acquitted on three of those counts by the same jury which convicted him on the other three counts. 

23                  The applicant’s point is that the counts upon which he was convicted did not in their description or particulars include the word “aggravated”. 

24                  The source of the information reproduced above, so I infer, was a computer print-out, provided to the respondent’s Department by the Western Australian Police Service, headed “Court Outcomes”.  The computer print-out contained the notation “AGGRAVA” after the description of the three charges.

25                  The first reference in the briefing minute to the applicant’s convictions was, again so I infer, to demonstrate that he had been sentenced to a term of imprisonment of 12 months or more.  The second reference was in the context of assessing the seriousness and nature of the conduct. 

26                  The aggravating features of these crimes were reflected in the sentencing remarks of Williams DCJ, a portion of which was extracted in the briefing minute and is set out above. 

27                  In my view, the applicant has not demonstrated that the inclusion of the word “aggravated” in the description of the crimes for which he was convicted has led the Minister into jurisdictional error affecting his decision to cancel the visa.  In particular, the applicant has not demonstrated that the respondent took into account aggravation as an irrelevant consideration in making his decision. 

28                  I do not think that there is any substance in the applicant’s complaint that the respondent or his delegate should have granted him an interview before cancelling the visa.  He was entitled, of course, to procedural fairness and he was given two opportunities (both of which he took up) to make submissions.  The applicant’s submissions, on each occasion, were extensive.  His first set of submissions extended to some 25 pages.  The second set of submissions comprised about 77 pages. 

29                  Sometimes an interview is granted before a visa is cancelled, see for example the facts in M238/2002 v Ruddock [2003] FCA 936.  The authorities show that the precise content of the requirements of procedural fairness may vary from case to case.  In all the circumstances, in my view, procedural fairness did not require the respondent to grant the applicant in this case an interview before deciding to cancel the visa.  Subject to the matter referred to immediately below, he had a fair opportunity to present information and argument against the cancellation of his visa. 

30                  The next matter is the use of what was said to be some “non-disclosable information”.  That information is contained in four pages, referred to in the briefing minute variously as “Annex L” or “Annex K”.  I shall refer to is as “Annexure L”. 

31                  At the hearing Ms Price drew my attention to the existence of Annexure L.  This was in the context of a discussion about some fairly recent authority on the content of procedural fairness in relation to non-disclosable information at the stage before a visa cancellation decision is made.  There was then the following exchange with counsel: 

‘I suppose if the applicant were represented that’s a potential ground that might have been raised which leads … to the question of whether the court should look at the annexure, in this case annexure L, to decide whether the substance of that should have been put to the – if Merkel J is right whether the substance of that should have been put to the applicant. 

MS PRICE:  Yes.

And is annexure L available?

MS PRICE:  It is your Honour.  We do claim privilege in respect of it and my instructions are we are happy to let you have a look at it for the purpose of deciding it but we do claim privilege.

Yes.  I think the course I will take will be to avail myself of that opportunity to read annexure L but on the basis that privilege is claimed for it. 

MS PRICE:  Yes, and certainly in our submission it clearly falls within the definition of non disclosable information in the [A]ct.

…

I should perhaps know the basis of the privilege.  Can you disclose the grounds of the privilege without breaching it? 

MS PRICE:  I don’t think I could in this case, your Honour.

I will have to glean the basis from examining it.

MS PRICE:  Yes.  I think it will be obvious once you examine the material.’

32                  The applicant sought access to Annexure L.  I informed him that I had to decide the respondent’s claim of privilege, that I would make a ruling about the privilege claimed as part of my judgment and that whether he had the right to see Annexure L would be part of my reasons for judgment.  The applicant made it clear that if unsubstantiated allegations had been made, he would like to respond.

33                  I have read Annexure L.  It comprises two documents, but I shall refer to it as one document.  To decide the respondent’s claim I turn to s 130 of the Evidence Act 1995 (Cth), which largely reflects the common law on public interest immunity – see the Australian Law Commission Report No 26 on Evidence, Vol 1 paragraphs 864-866. 

34                  Section 130(1) provides:

‘If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.’

35                  Section 130(4) lists a number of circumstances in which information or a document may be taken to relate to matters of State.  But the list is not an exhaustive one.  In my view, the information in Annexure L and Annexure L itself relate to “matters of state” within the meaning of that expression in s 130(1).  First, because adducing Annexure L as evidence would disclose or enable the applicant to ascertain the existence or identity of a confidential source of information relating to the administration of a law of the Commonwealth (namely the Act) – see s 130(4)(e).  Secondly, I consider the adducing of such evidence would prejudice the proper functioning of the government of the Commonwealth, in this case the respondent’s Department – s 130(4)(f).  The respondent’s Department has, of course, a legitimate interest in obtaining confidential information relevant to its functions.  Unless that information remains confidential there is a risk that the sources will dry up.  The situation is analogous to that in D v National Society for the Prevention of Cruelty to Children [1978] AC 171. 

36                  The authorities show that the balancing test in s 130(1) requires the Court to: 

‘… identify with precision, and then balance fairly and sensibly, the two competing public interests to which sub-section (1) makes reference.’  [Attorney-General v Kaddour & Turkmani [2001] NSWCCA 456 at [15]. 

37                  The authorities also show that the public interest in admitting the evidence is based on the assumption that all relevant and otherwise admissible evidence should be admitted in order to achieve justice in the case at hand: Sankey v Whitlam (1978) 142 CLR 1. 

38                  Section 130(5) requires the Court to take into account certain matters for the purposes of subs (1), but on the express basis that the Court may take into account other matters as well.  Those matters which are applicable in this case can be found in sub-paragraphs (a), (c), (d) and (e).  I exclude sub-paragraphs (b) and (f) because this is not a criminal proceeding. 

39                  Sub-paragraph s 130(5)(a) requires me to take into account the importance of Annexure L in the proceedings.  I would assess Annexure L as being extremely important in this proceeding.  It might well mean the difference between success and failure on the applicant’s part.  I make that assessment in conjunction with taking into account the matters referred to in sub-paragraph (c), treating the applicant’s application as a cause of action and the subject matter of the proceeding as being an application for a constitutional writ to quash the respondent’s decision. 

40                  I also take into account the likely effect of adducing Annexure L into evidence – see sub-paragraph (d).  One likely effect, which I have already mentioned, would be to enhance the applicant’s prospects of successfully challenging the respondent’s decision as having been made without jurisdiction.  Another effect might be to put a person at risk of harm.  A further effect would be to deter members of the public providing important information to those responsible for enforcing the laws of this country.  But I also take into account that this Court has power, see for example s 50 of the Federal Court of Australia Act 1976 (Cth), to restrict publication of Annexure L or any part of it and further to restrict access to Annexure L.  Access could be restricted to the respondent and its advisers (who already have access) and to Judges of this Court. 

41                  There is no evidence that the substance of Annexure L has already been published – see sub-paragraph (e). 

42                  In my view, the public interest in admitting Annexure L into evidence i.e. that in the administration of justice all relevant evidence should be admitted to enable the Court to get to the truth of the matter, outweighs the public interest in preserving secrecy or confidentiality in relation to Annexure L.  I decline to make the direction contemplated by s 130(1) and (implicitly) sought by the respondent. 

43                  That, of course, does not mean that Annexure L automatically is admitted into evidence.  However, the respondent tendered an affidavit from Mr Hutchinson because, so I was told, it included the briefing minute and the respondent’s decision and it was thought to be appropriate that a copy should be before the Court as having come from the respondent.  Furthermore, the respondent prepared for the Court the usual book of relevant documents (“the Court Book”) which contained many relevant documents but, unsurprisingly, not Annexure L. 

44                  Although neither party has formally tendered Annexure L, I consider it necessary for the disposition of this case to have Annexure L adduced in evidence.  I shall exercise whatever powers I have in that regard to order that Annexure L (a copy of which was, at my request, passed up by counsel for the respondent) be admitted into evidence.  An order was made at the hearing that Annexure L be placed in an envelope, sealed and not unsealed (other than by me) until further order.  It will be returned to that envelope and, as foreshadowed above, an order will be made restricting access to it to Judges of this Court until further order. 

45                  The next question is whether evidence now before the Court shows, on the balance of probabilities, that the respondent denied procedural fairness to the applicant by not disclosing the substance of Annexure L to him. 

46                  First, I consider that the briefing minute sets out the reasons for the respondent’s decision to cancel the appellant’s visa.  I do so for reasons which are very similar to my reasons for taking that course in a recent Full Court matter of Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [44]-[52].  The other members of the Court, Merkel and Hely JJ agreed with those reasons. 

47                  To start with, as mentioned at paragraph [8] above, Mr Hutchinson’s letter of 14 December 2001 to the applicant – the notice of cancellation – stated that the decision record “… sets out the reasons for the decision, (other than non-disclosable information)”.  That, in my view, is some evidence also that the information in Annexure L itself was part of the reasons for the decision. 

48                  As in Long, the briefing paper in this matter, although carefully worded in terms of “it is open for you to find …” and the like, pointed the respondent quite firmly in the one direction i.e. towards cancellation of the visa. 

49                  The respondent’s decision was consistent with the analysis and recommendations made in the briefing minute.  The respondent indicated his decision without comment – both factors which Stone J regarded as important in Javillonar v Minister for Immigration and Multicultural Affairs (2001) FCR 311. 

50                  There is no evidence from the respondent to deny that the briefing minute set out his reasons for the decision.  Accordingly, for the foregoing reasons, I conclude that the briefing minute sets out the reasons for the respondent’s decision to cancel the applicant’s visa. 

51                  There were three references to Annexure L in the briefing minute.  First, under the heading “Protection of the Australian Community (a) seriousness and nature of conduct” there was the following:

‘[16]   Additional information of relevance is set out in information that is “Non-disclosable Information” for the purposes of section 501G(1)(e) of the Act.  “Non-disclosable Information” may not be released to the applicant.  The “Non-disclosable Information” is set out at Annex L.’

52                  Secondly, under sub-paragraph (b) of the heading “Protection of the Australian Community”, immediately after the observation that it was open for the respondent to find that the applicant was at a high risk of recidivism, there was precisely the same reference (except for a different paragraph number) to Annex L which I have set out above. 

53                  Finally, under the heading “EVIDENCE OR OTHER MATERIAL ON WHICH FACTS/BACKGROUND INFORMATION IS BASED”, Mr Hutchinson as author of the briefing minute said this:

‘[51]   In support of the above findings I had regard to the following material: … Annex K – Non disclosable information of relevance.’

54                  I was informed that Annexure L appeared to be the only non-disclosable information involved in this case.  Accordingly I infer that the reference to Annex K is in fact a reference to Annex L. 

55                  My assessment on reading Annexure L was that it contained information which was adverse to the applicant, that was credible, relevant and significant to the decision to be made – Kioa v West (1985) 159 CLR 550 at 629.  In case I am found to be wrong in my reasoning below, I shall not give any further details of its contents.

56                  On the current state of authorities, I do not think that it is relevant that Annexure L may contain “non-disclosable information”.  The matter under consideration is the content of the respondent’s obligation to extend procedural fairness to the applicant before he made the cancellation decision.  Section 501G(1)(e) relevantly provided that if a decision was made under s 501(2) to cancel a visa that had been granted to a person, the Minister must give the person a written notice that sets out the reasons (other than non-disclosable information) for the decision.  I am prepared to work on the assumption that Annexure L contained non-disclosable information because, in terms of the definition of that expression in s 5(b) of the Act, its disclosure would, in the respondent’s opinion, be contrary to the public interest for a reason which could form the basis for a claim by the Crown in right of the Commonwealth in judicial proceedings. 

57                  In WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93, R D Nicholson J held that it was not a breach of the rules of natural justice when the annexure in that case, which his Honour was satisfied constituted non-disclosable information, was not disclosed to a person who would otherwise have been entitled to be provided with that information.  But his Honour was not called on to consider what information should have been provided to that person before the cancellation decision was made.  On appeal to a Full Court of this Court, WAFG was allowed to raise that matter.  The appeal was allowed by consent on 29 August 2003. 

58                  In the meantime, WAFG was distinguished in two first instance decisions of this Court on the basis to which I have referred immediately above.  Those decisions were Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437 and Ball v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 699.  Also of some assistance in this area is an earlier unreported decision of Lehane J, Gilson v Minister for Immigration and Multicultural Affairs, 21 July 1997 BC9703148, referred to by Merkel J in VEAL at [31]. 

59                  I accept the sensitivity of the information in Annexure L and the need to protect its source.  But my assessment is that the public interests to which I have earlier referred could have been, and could still be, protected by preparing a summary of the essential information contained in that document.  That course was adopted in a matter which resulted in a series of decisions in this Court culminating in the Full Court decision of Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314.  That information could be conveyed to the applicant in such a manner as not to identify the source of the information or otherwise to place any person at risk. 

60                  In my view, by failing to take reasonable steps to bring to the applicant’s attention the substance of the information contained in Annexure L, the respondent denied the applicant procedural fairness.  The information in Annexure L was adverse to the applicant as it related not only to whether he passed the character test but was also relevant to the exercise of the respondent’s discretion to allow the applicant to remain in Australia despite having failed the character test.  He should have had an opportunity to comment upon the substance of that information and put to the respondent submissions and information in response before his visa was cancelled.  

61                  In my opinion, the breach of procedural fairness in this matter has been such as to amount to jurisdictional error to the extent that the respondent’s decision to cancel the applicant’s visa cannot be said to have been made under the Act.  Accordingly it was not a privative clause decision within the meaning of s 474.  The relevant principles to be applied are explained by the High Court of Australia in cases such as Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6. 

62                  In those circumstances, it is not necessary to consider any other possible grounds of review. 

Conclusion

63                  For the foregoing reasons the application will be allowed and the respondent’s decision will be quashed.

Associate:

Dated:              16 September 2003