FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 51

ADMINISTRATIVE LAW – res judicata – issue estoppel – ‘Anshun estoppel’ – applicability where earlier judgment was dismissal of application for judicial review of administrative decision – ‘special circumstances’ why Anshun estoppel should not apply – whether ‘special circumstances’ exception to issue estoppel.

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – objection to competency – whether ‘decision’ of Tribunal appealed from was the effective decision or determination of the application for review that was before Tribunal – objection to competency upheld.

MIGRATION – whether s 503A of Migration Act 1958 (Cth) obliged Minister not to give particulars of information communicated to authorised migration officer by gazetted agency on condition of confidentiality – distinction between ‘authorised migration officer’ and ‘the Minister’ in s 503A – ‘gazetted agency’ – definition of ‘gazetted agency’ in s 503A – whether particular notice published in Gazette valid – whether severance possible so that notice valid as to part.

EVIDENCE – res judicata – issue estoppel – ‘Anshun estoppel’ – applicability where earlier judgment was dismissal of application for judicial review of administrative decision – ‘special circumstances’ why Anshun estoppel should not apply – whether ‘special circumstances’ exception to issue estoppel.

STATUTORY INTERPRETATION – inconsistency between definition of ‘authorised migration officer’ in s 503A of Migration Act 1958 (Cth) as including ‘the Minister’ and text and scheme of the section which distinguished between ‘authorised migration officer’ and ‘the Minister’.

PRACTICE AND PROCEDURE – res judicata – issue estoppel – ‘Anshun estoppel’ – applicability where earlier judgment was dismissal of application for judicial review of administrative decision – ‘special circumstances’ why Anshun estoppel should not apply – whether ‘special circumstances’ exception to issue estoppel.

WORDS AND PHRASES – ‘on condition that’ – ‘gazetted agency’

Acts Interpretation Act 1901 (Cth) ss 46(1)(b), 46(2)

Migration Act 1958 (Cth) ss 501, 501C, 503A

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 discussed

Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 applied

Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 followed

BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 cited

Re Ruddock; Ex parte LX [2003] FCA 561 followed

Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 followed

Blair v Curran (1939) 62 CLR 464 cited

Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 cited

Henderson v Henderson (1843) 3 Hare 100 (67 ER 313) discussed

R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1983] 1 WLR 524 referred to

New South Wales Taxation Commissioners v Palmer [1907] AC 179 cited

Jacobs v London County Council [1950] AC 361 cited

Re Martin, Deceased [1953] St R Qd 37 cited

Burt v Barry & Roberts Ltd;  Ex parte Barry & Roberts [1956] St R Qd 207 cited

BC v Minister for Immigration & Multicultural Affairs [2003] FCAFC 221 discussed

R v Home Secretary;  Ex parte Momin Ali [1984] 1 WLR 663 cited

Arnold v NatWest Bank Plc [1991] 2 AC 93 referred to

Vitosh v Brisbane City Council (1955) 93 CLR 622 cited

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 cited

O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 cited

Linsley v Petrie [1998] 1 VR 427 cited

Stuart v Sanderson (2000) 100 FCR 150 referred to

Re Minister for Immigration & Multicultural & Indigenous Affairs;  Ex parte Palme [2003] HCA 56 referred to

The Tramways Case (No 1) (1914) 18 CLR 54 cited

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 cited

Mills v Meeking (1990) 91 ALR 16 cited

Saraswati v The Queen (1991) 172 CLR 1 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to

SWB Family Credit Union Ltd v Paramatta Tourist Services Pty Ltd (1980) 48 FLR 445 referred to

Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 referred to

Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 discussed

NAAO v Secretary, Department of Immigration & Multicultural Affairs (2002) 117 FCR 401 discussed

Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 320 applied

Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981) VR 81 discussed

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 cited

Director-General of Social Services v Chaney (1980) 31 ALR 571 followed

Alcoa of Australia Ltd v Swiss Aluminium Australia (1986) 64 ALR 317 followed

Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3^rd ed, 1996)

Campbell, ‘Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation’ 20 Mon U L Rev 21

WONG TAI SHING v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

N 297 of 2003 and N 298 of 2003

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

N 1308 of 2003

LINDGREN J

6 FEBRUARY 2004

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT MAKES:

1.             Orders nisi in the nature of certiorari and mandamus in relation to the decision of the respondent on 22 January 2002 refusing to grant a subclass 560 Student Visa to the applicant.

THE COURT ORDERS THAT:

2.             The orders nisi be discharged.

3.             The applicant pay the respondent’s costs of the proceeding.

4.             The proceeding be otherwise dismissed.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT MAKES:

1.         An order absolute in the nature of certiorari quashing the decision made by the respondent on 28 May 2002 not to revoke the respondent’s decision of 22 January 2002 refusing to grant a subclass 560 Student Visa to the applicant.

2.         An order absolute in the nature of mandamus that the respondent perform the obligations imposed by ss 501C(3) and (4) in relation to the respondent’s decision of 22 January 2002 refusing to grant a subclass 560 Student Visa to the applicant.

THE COURT ORDERS THAT:

3.         The respondent pay the applicant’s costs of the proceeding.

4.         The proceeding be otherwise dismissed.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT HANDLEY

THE COURT ORDERS THAT:

1.         The application be dismissed as incompetent.

2.         The applicant pay the respondent’s costs of the proceeding.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT HANDLEY

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant (‘Mr Wong’) in the first two proceedings referred to above (I will call them simply ‘N 297/03’ and ‘N 298/03’ respectively), is a national of the People’s Republic of China (‘PRC’).  He first entered Australia on 22 August 1999 as the holder of a subclass 676 Visitor (Short Stay) Visa issued in Hong Kong.  On 12 November 1999 he was granted a subclass 560 Student Visa valid until 5 January 2001.  On 15 December 2000, he lodged a further application for a Student Visa.  On 25 January 2001 he was granted a Bridging Visa A while that application was under consideration.

2                     Eventually, on 22 January 2002, the Minister decided, by reference to s 501(3) of the Migration Act 1958 (Cth) (‘the Act’), that he reasonably suspected that Mr Wong did not ‘pass the character test’ and was ‘satisfied that [a] refusal [was] in the national interest’, and, accordingly, he refused the visa (‘the original decision’).

3                     On the evening of 7 February 2002, Mr Wong was handed a letter dated 25 January 2002 notifying him of the original decision and enclosing a copy of the relevant legislative provisions and a document which was referred to in the letter as ‘the decision record’.  This document was in fact headed ‘Issues for Consideration for Possible Visa Refusal under Subsection 501(3) of the Migration Act 1958’.  It was a document prepared within the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) for the Minister.  At the end of the document was recorded the original decision signed by the Minister.  I will call the document ‘the Decision Record’.  Once he was handed the letter and its two enclosures, Mr Wong was taken into immigration detention.

4                     On 13 February 2002 and 4 March 2002 Mr Wong, through his solicitor Peter WH Leung, made representations pursuant to s 501C of the Act directed to a revocation of the original decision, but on 28 May 2002 the Minister decided not to revoke the original decision (‘the refusal to revoke decision’). 

5                     On 11 March 2002 Mr Wong commenced proceeding S 42 of 2002 in the High Court of Australia applying for writs of mandamus, certiorari and prohibition against the Minister with respect to the original decision.  On 6 February 2003, Gaudron J ordered that further proceedings in that application be remitted to this Court.  In this Court, that remitted proceeding became N 297/03, the first of the proceedings now before me.

6                     On 10 July 2002 Mr Wong commenced proceeding S 243 of 2002 in the High Court of Australia, seeking writs of mandamus, certiorari and prohibition against the Minister in respect of the refusal to revoke decision.  On 6 February 2003, Gaudron J ordered that further proceedings in that application also be remitted to this Court.  In this Court that remitted proceeding became N 298/03, the second of the proceedings now before me.

7                     In N 297/03, on 12 August 2003 Mr Wong filed, with leave, what purported to be an ‘application pursuant to s 39B of the Judiciary Act 1903 [(Cth) (‘the Judiciary Act’)]’ setting out the grounds on which he relies as follows:

‘(a)      that the power to refuse the Applicant’s visa application was exercised for an ulterior purpose which is not permitted by s 501(3) of the Act, namely for the purpose of returning the Applicant to Hong Kong so as to permit foreign law enforcement authorities to pursue their enquiries with him;

(b)       that the determination that the decision maker reasonably suspected that the Applicant did not pass the character test was in error in that a finding that the Applicant had “a record of evading law enforcement activities” alone can not, as a matter of law, make open a finding that he was of bad character, particularly as there were no findings that any such evasive conduct was intentional or unlawful and there were no findings that the Applicant had committed any criminal offences;

(c)        that the determination that the decision maker reasonably suspected that the Applicant did not pass the character test was in error in that the decision maker was not advised of and did not take into account:

(i)        the fact that the Applicant has no history of conviction for any criminal offence; and

(ii)       the Applicant’s good conduct since entering Australia;

(d)       that the determination that the decision maker was satisfied that the refusal of the Applicant’s visa was in the national interest was in error in that an incorrect test was applied; the test laid down in s 501(3)(d) requires a determination that refusal of the visa application is in the national interest and this test cannot be satisfied by a determination that “it is in the national interest that action be taken quickly to prevent him from disappearing into the community before his case is dealt with”.  In so deciding the decision maker has asked whether a consequence of refusing the visa, that is, the need to act quickly, is in the national interest;

(e)        that the error identified at sub-paragraph (d) above is an error of law on the face of the record;

(f)        that the decision-maker’s exercise of the residual discretion in s 503(3) was in error in that it was exercised upon the understanding that, if the visa was refused on character grounds, the Applicant would nevertheless have the opportunity (pursuant to s 501C of the Migration Act) to establish that he could pass the character test whereas in fact, by reason of the statutory prohibition upon disclosure of all relevant materials (see s 503A of the Act), his ability to make representations to this effect, pursuant to s 501C of the Act, was illusory; and

(g)       in the alternative to the ground at paragraph (f) above, that the decision-maker’s exercise of the residual discretion in s 503(3) was in error in that it was exercised with the advice that and upon the understanding that, if the visa was refused on character grounds, the Applicant would nevertheless have an adequate opportunity (pursuant to s 501C of the Migration Act 1958), to establish that he could pass the character test whereas in fact, by reason of the statutory prohibition upon disclosure of all relevant materials (see s 503A of the Act), his ability to make representations to this effect, pursuant to s 501C of the Act, was restricted to such a degree that it was inadequate and this fact was not brought to the Minister’s attention for consideration when the refusal decision was made;

(h)       that in the course of reaching his decision to act pursuant to s 501(3) of the Act the Minister relied upon an error of law, namely that s 503A of the Act prohibited the disclosure of information to the Applicant, such error being material to his decision to exercise his powers under s 501(3) and being of a fundamental nature in that he failed to properly consider which of his powers in s 501 was appropriate, and there thereby occurred a failure to exercise the powers conferred by s 501, such failure amounting to jurisdictional error; and

(i)        that the Minister acted contrary to the provisions of s 501C(3) of the Act in that he did not provide all relevant information to the Applicant, namely the alleged “protected information”, and to so act amounted to a breach of the rules of natural justice and jurisdictional error in connection with the making of the decision pursuant to s 501(3) of the Act.’  (my emphasis in par (c))

8                     On 16 October 2003 the Minister filed a notice of motion seeking an order that any claim for relief based on grounds (a) to (g) be dismissed on the basis that a claim for relief based on those grounds was an abuse of the process of the Court;  cf Federal Court Rules, O 20 r 2(1)(c).

9                     The background to the Minister’s motion was that, subject to the qualification mentioned in the next sentence, Mr Wong had previously unsuccessfully applied in this Court, in proceeding N 112 of 2002, under s 39B of the Judiciary Act, for orders in the nature of mandamus, prohibition or injunction against the Minister on the present grounds (a) to (g) in respect of the original decision.  I will call proceeding N 112 of 2002 ‘the First Earlier Proceeding’.  The qualification is that the words emphasised by me in par (c) in [7] above did not appear in the application for relief in the First Earlier Proceeding.  The application in the First Earlier Proceeding was dismissed by Tamberlin J on 6 August 2002 (Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959).  On 26 August 2002 Mr Wong appealed from his Honour’s judgment (N 889 of 2002) and the appeal was dismissed by a Full Court (Black CJ, Hill and Hely JJ) on 20 December 2002 (Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440).  (I was informed that there is pending an application by Mr Wong for special leave to appeal to the High Court against the Full Court’s dismissal of his appeal from Tamberlin J.)

10                  It will be noted that the Minister’s motion does not seek summary dismissal of Mr Wong’s application in so far as it relies on grounds (h) and (i).   Those grounds had not been relied on by Mr Wong in the First Earlier Proceeding. 

11                  Mr Wong concedes that if it were to be finally accepted that he is not in a position to put before the Court evidence that was not before Tamberlin J in the First Earlier Proceeding, then, subject to one qualification, it would be an abuse of process for him to press grounds (a) to (g).  The qualification is that as a result of production of some documents by the Minister pursuant to a request under the Freedom of Information Act 1982 (Cth), Mr Wong has some additional evidence pertinent to ground (c) which he was not in a position to adduce in the First Earlier Proceeding.  Mr Wong submits that the appropriate course to follow is to defer consideration of grounds (a) to (g) and of the Minister’s motion, pending the final determination of the third proceeding now before me (proceeding N 1308 of 2003, ‘the AAT appeal’) discussed below, when it will be known whether Mr Wong will become entitled to be supplied with further information.  The Minister opposes that course.

12                  I turn now to N 298/03.  This proceeding relates to the refusal to revoke decision.  In it, Mr Wong, with leave, filed on 12 August 2003 what was described as an ‘amended application’ purporting to seek relief ‘pursuant to s 39B [of the] Judiciary Act’ in respect of the refusal to revoke decision on the following grounds:

‘(a)      that the decision was in error in that the Respondent was not advised of and did not take into account:

(i)        the fact that the Applicant has no history of conviction for any criminal offence;

(ii)       the Applicant’s good conduct since entering Australia, in particular the Applicant’s compliance with his Student Visa and relevant Migration Act 1958 obligations …;

(b)               that the Minute dated 09.05.2002 that was put before the Minister did not expressly make comment that the Applicant’s claims to having no criminal convictions and as to having conducted himself properly since his entry into Australia were correct … and therefore a relevant and significantly material matter was not put before the Minister; and

(c)               that the Minister did not apply the correct test required by s 501C namely whether the Minister was satisfied by the Applicant that he passes the character test.

(d)               that in the course of reaching his decision the Minister erred in that a breach of the rules of natural justice occurred which breach was constituted by the failure of the Minister to provide the information upon which he relied, being the information referred to as the “protected information”, to the Applicant for the purposes of the Applicant making representations pursuant to s 501C of the Act, such breach being a material error that caused the Minister to act in excess of the statutory power which he exercised.

(e)               that the Minute dated 09.05.2002 that was put before the Respondent did not expressly make comment that the Applicant’s representations contained a claim that the national interest test was not properly applied and therefore a relevant matter was not considered by the Respondent;

(f)                that the Respondent’s decision to refuse to revoke his refusal to grant the Applicant’s visa application was exercised for an ulterior purpose which is not permitted by s 501C of the Act, namely for the purpose of returning the Applicant to Hong Kong so as to permit foreign law enforcement authorities to pursue their enquiries with him.’  (my emphasis in par (a))

13                  On 16 October 2003, the Minister filed a notice of motion in N 298/03 seeking an order that the claim for relief based on grounds (a) to (c), (e) and (f) of the amended application be dismissed on the ground that any claim for relief based on those grounds was an abuse of the process of the Court;  again cf Federal Court Rules, O 20 r 2(1)(c).

14                  In this case the Minister relies on the judgment of Wilcox J in a different earlier proceeding brought in this Court by Mr Wong, N 654 of 2002, under s 39B of the Judiciary Act (‘the Second Earlier Proceeding’), seeking orders in the nature of mandamus, prohibition or injunction against the Minister on the present grounds (a) to (c), (e) and (f) (the words emphasised by me in par (a) in [12] above did not appear in the application for relief in the Second Earlier Proceeding) (Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1436).  Wilcox J dismissed that application on 6 November 2002.  On 22 November 2002 Mr Wong appealed from that dismissal (N 1246 of 2002).  The hearing of that appeal has been deferred pending resolution of these proceedings, so that if there is to be an appeal from my judgment the two appeals can be heard together.  It does not seem amiss to observe that in the light of the extensive litigation between Mr Wong and the Minister, more of which is related below, the likelihood that there will be an appeal from my judgment in these proceedings, to be linked up with that pending appeal, must be regarded as very high.

15                  (In the Second Earlier Proceeding, Wilcox J, on 18 October 2002, gave Mr Wong leave to administer interrogatories (Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1271), but on 31 October 2002, a Full Court (Hill, Moore and Branson JJ) granted the Minister leave to appeal against Wilcox J’s decision, and allowed the Minister’s appeal (Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327).  I was informed that there is pending an application for special leave to appeal to the High Court from the Full Court’s dismissal of that appeal by Mr Wong.)

16                  Mr Wong and the Minister take positions in relation to the course to be followed in N 298/03 in respect of grounds (a) to (c) and (e) and (f) and the Minister’s motion, generally similar to the positions they respectively take in proceeding N 297/03, as noted at [11] above.  Mr Wong says that ground (d) alone of the six grounds is new;  that he has some new material relating to grounds (a) and (b);  that he has no new material in relation to grounds (c), (e) and (f);  and that he will acquire new material in relation to grounds (c), (e) and (f) only if he is ultimately successful in the AAT appeal.  Mr Wong seeks a deferral of consideration of grounds (a) to (c), (e) and (f) and of the Minister’s motion.  The Minister opposes any deferral.

17                  In making the original decision and the refusal to revoke decision, the Minister took into account information which was contained in Attachments C1–10 to the Decision Record (‘Attachments C1–10’).  At the heart of both N 297/03 and N 298/03 is the question whether, as the Minister was informed, assumed and now contends, he was prohibited by s 503A of the Act from divulging to Mr Wong particulars of the information in Attachments C1–10.  Neither Mr Wong nor his legal representatives have been given such particulars or have ever read Attachments C1–10, and they are not in evidence before this Court.

18                  At the commencement of the hearing, I ordered that proceedings N 297/03 and N 298/03 be heard together and that the evidence in each be evidence in the other, subject to all just exceptions. 

19                  I turn finally to the third proceeding now before me, the AAT appeal, which I heard immediately following the hearing of proceedings N 297/03 and N 298/03.  The parties agreed that the AAT appeal was to be determined on the basis of written submissions.

20                  The AAT appeal is an appeal from a ruling or decision of the Administrative Appeals Tribunal (‘AAT’).  On 18 February 2002, Mr Wong, through his solicitor Mr Leung, made a request under s 15 of the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) for access to certain documents, the description of which embraced Attachments C1–10.  On 18 April 2002, Ms Diane Ashton of the Department decided, relevantly, that access to Attachments C1–10 should be refused on the ground that they contained s 503A protected information.  On 17 May 2002 Mr Leung requested, on behalf of Mr Wong, an internal review of Ms Ashton’s decision.  On 15 July 2002, Craig Riviere, a person authorised under s 23 of the FOI Act and the Assistant Director, Investigations Policy and Co-ordination Section of the Department, while authorising disclosure of certain specified documents with or without deletions, exempted from disclosure other specified documents, including Attachments C1–10.

21                  On 13 September 2002, Mr Wong applied to the AAT for review of Mr Riviere’s decision (‘the AAT proceeding’).  In the AAT, on 14 August 2003, Deputy President Handley resolved what he described as ‘the preliminary issue in this matter’.  He decided that s 503A(1) of the Act did not protect from disclosure, either documents supplied by the Ministry of Public Security of the People’s Republic of China (‘the MPS’) or documents supplied by Interpol Canberra, because those bodies were not ‘gazetted agencies’ for the purposes of s 503A(9) of the Act. 

22                  On 4 September 2003 the Minister commenced the AAT appeal, purportedly under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), from that ‘decision’ of the AAT.  According to the application which commenced the AAT appeal, that proceeding raises the following questions of law:

‘(a)      whether the Tribunal erred in law in applying section 503A of the Act as it was prior to the amendments effected by the Migration Legislation Amendment (Protected Information) Act 2003 (“the Protected Information Act”) and not as it was after those amendments and in having regard to Commonwealth Gazette Notice No GN 23, 9 June 1999 (“The 1999 Gazette Notice”) and not Commonwealth Gazette Notice No GN 32, 13 August 2003 (“the 2003 Gazette Notice”).

(b)       whether the Tribunal erred in law in finding that the Ministry of Public Security of the People’s Republic of China was not a “gazetted agency” for the purposes of subsection 503A(9) of the Act.

(c)        whether the Tribunal erred in law in finding that Interpol Canberra was not a “gazetted agency” for the purposes of subsection 503A(9) of the Act.’

23                  The Minister seeks orders setting aside the AAT’s decision and remitting the matter to the AAT for further consideration, in accordance with directions that the MPS and Interpol Canberra are ‘gazetted agencies’ for the purposes of s 503A(9) of the Act.

24                  It remains to note one further factual matter.  It will be recalled that ground (c) in N 297/03 and ground (a) in N 298/03 both introduce a new ‘sub-ground’ which had not been raised in the First Earlier Proceeding or the Second Earlier Proceeding.  This new sub-ground was that the original decision and the refusal to revoke decision were each in error because the Minister was not advised of, and did not take into account, the fact that Mr Wong had no history of conviction for any criminal offence.  The background to the introduction of this new sub-ground is as follows.

25                  In about May 2001, Mr Wong, through his solicitor Mr Leung, applied to the Department for the release of information under the FOI Act, and in response the Department released documents on or about 30 June 2001.  On 18 February 2002, Mr Wong made a second application under the FOI Act, and in response the Department released documents on or about 8 April 2002 and 15 July 2002.  Tamberlin J heard the First Earlier Proceeding on 12 June 2002 and delivered judgment on 6 August 2002.  In March 2003 Mr Leung perused an affidavit sworn by Craig Riviere of the Department and filed in the AAT proceeding, which referred to yet further Departmental documents relating to Mr Wong.  On 25 March 2003, Mr Leung requested that those further documents be provided.  He followed up that request by telephone and in writing down to 2 June 2003.  On 6 June 2003 the solicitors for the Minister provided further documents.

26                  One of the further documents provided was a ‘Certificate of No Criminal Conviction’ (‘CNCC’) issued by the Hong Kong Police.  The CNCC had in fact been provided by Mr Wong to the Australian Consulate General in Hong Kong as long ago as June 1999, apparently in connection with his original application for a visa permitting him to enter Australia.  Also among the further documents produced by the Minister’s solicitors was a memo dated 14 July 2000 from the Australian Consulate-General to Mr Peter Coyne, an officer of the Department based at the Australian Embassy in Beijing, informing Mr Coyne that Mr Wong had provided the CNCC in June 1999.

27                  Mr Wong submits that the circumstances recounted above explain why the new sub-ground was not relied on in the First Earlier Proceeding or the Second Earlier Proceeding: it was, according to the submission, only in or following June 2003 that Mr Wong became aware that the Minister had not been advised of the CNCC when the Minister made the original decision and the refusal to revoke decision.

THE ORIGINAL DECISION, THE REFUSAL TO REVOKE DECISION, AND THE RELEVANT LEGISLATIVE PROVISIONS

28                  The letter dated 25 January 2002 informing Mr Wong of the making of the original decision advised him that the Minister, acting personally under s 501(3) of the Act, had refused to grant him a sub-class 560 Student Visa on the ground that the Minister reasonably suspected that he did not pass the character test, and that the Minister was satisfied that a refusal to grant the visa was in the national interest.  The letter advised Mr Wong that the particular ground under which the Minister had decided that he did not pass the character test was that set out in s 501(6)(c)(ii) of the Act.

29                  Subsections 501(1)–(6) of the Act were 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.’  (my emphasis)

30                  It will be noted that, as subss 501(4) and (5) provide, the power to refuse to grant a visa under s 501(3) may be exercised only by the Minister personally and that the rules of natural justice and the procedural code set out in Subdiv AB of Div 3 of Pt 2 of the Act (‘the Code of Procedure’) do not apply to a refusal by the Minister under that subsection.  The power given by s 501(3) is to be contrasted in these respects with those given by subss 501(1) and (2).  Those powers may be exercised by a delegate of the Minister or by the AAT, and the application of the rules of natural justice and the Code of Procedure to their decisions is not excluded.  However, if a delegate or the AAT decides not to exercise the power given by s 501(1) to refuse to grant a visa, or decides not to exercise the power given by s 501(2) to cancel a visa, then subss 501A(2) and (3) empower the Minister to set aside the decision of the delegate or the AAT, and, where the Minister acts under s 501A(3) (in substantially the same terms as s 501(3)), the rules of natural justice and the Code of Procedure do not apply to that decision of the Minister: s 501A(4).

31                  Although the rules of natural justice and the Code of Procedure do not apply to a refusal by the Minister under s 501(3), s 501C of the Act provides for the making of representations by the person in question about revocation of such a decision.  Subsections 501C(1)–(5) of the Act were as follows:

‘(1)      This section applies if the Minister makes a decision (the original decision) under subsection 501(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 (see subsection (10))—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.’  (my emphasis)

32                  ‘Non-disclosable information’ was 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.’

Clearly, non-disclosable information may be generally conceived of as information, the substance of which, in the Minister’s opinion, is sensitive to the national or public interest, or the disclosure of which would be in breach of an obligation of confidence.  In the present case the Minister has not suggested that the information contained in Attachments C1–10 is ‘non-disclosable information’.

33                  Mr Wong complains that the Minister did not comply with s 501C(3)(a)(ii), that is to say, that the Minister did not give Mr Wong any particulars of the information which constituted the reason for making the original decision, namely, the information in Attachments C1–10.

34                  It is not disputed that the information in Attachments C1–10 was the information which the Minister considered to be the reason for the making of the original decision.  In any event, I have no hesitation in inferring from the evidence that it was.  The Decision Record stated, under the heading, ‘Evidence of grounds for refusal’, as follows:

‘3.        The Department has received protected information concerning Mr Wong under section 503A of the Migration Act and this cannot be disclosed to the applicant or his legal advisors and agents for comment.

4.         The relevant protected information concerning Mr Wong is at Attachments C1–10.’  (my emphasis)

The Decision Record further stated (at par 17) as follows:

‘The information used in connection with the exercise of the subsection 501(3) power, in Mr Wong’s case, is section 503A protected information which cannot be provided to Mr Wong or his agents and legal representatives for their comment.  You should be advised that this might limit Mr Wong’s ability to obtain revocation under subsection 501C.  However, should you decide to refuse Mr Wong’s visa application, he will be given a copy of the Decision Record.  The decision record identifies subsection 501(6)(ii) as the grounds under which you may reasonably suspect Mr Wong fails the character test and paragraph 11 of the Decision Record outlines the case for considering that refusal of his visa is in the “national interest”.  He will also be provided with a copy of your Direction 21 made under section 499 of the Migration Act 1958.  In other words, Mr Wong may be able to convince you to exercise your powers of revocation under subsection 501C [sic – subsection 501C(4)].’  (my emphasis)

35                  Section 503A of the Act provided as follows:

‘(1)      If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:

(a)       the officer must not divulge or communicate the information to another person, except where:

(i)        the other person is the Minister or an authorised migration officer; and

(ii)       the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and

(b)       an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:

(i)        the other person is the Minister or an authorised migration officer; and

(ii)       the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.

Note:   Authorised migration officer and gazetted agency are defined by subsection (9).

(2)       If:

(a)       information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or

(b)       information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);

then:

(c)        the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and

(d)       if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.

(3)       The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.

Note:   Commonwealth officer is defined by subsection (9).

 (4)      …

(5)       If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer).

(6)       This section has effect despite anything in:

(a)       any other provision of this Act; and

(b)        any law (whether written or unwritten) of a State or a Territory.

(7)       …

(8)       …

(9)       In this section:

authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.

Commonwealth officer has the same meaning as in section 70 of the Crimes Act 1914.

Note:   A Minister is not a Commonwealth officer.

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

(a)        responsible for law enforcement, criminal intelligence body, 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.

Note:   For specification by class, see section 46 of the Acts Interpretation Act 1901.  (my emphasis, except in footnotes)

Section 503A is not limited in its application to information of any particular description (contrast the ‘substance sensitive’ information constituting ‘non-disclosable’ information referred to in s 501C – see [32] above).  The section is enlivened by nothing more than the fact of communication to an authorised migration officer by a gazetted agency on condition of confidentiality, coupled with relevance of the information to the exercise of one of the powers specified.  Section 501C, by contrast, requires disclosure of information (other than non-disclosable information) which the Minister considers would be the actual reason, or part of the actual reason, for making the decision, and which is specifically about the person or another person, and is not just about a claim of persons of which the person or other person is a member.  It is not disputed that s 501C would have required the Minister to give Mr Wong particulars of the information contained in Attachments C1–10 if s 503A did not prohibit him from doing so.

36                  On 9 May 2002, following receipt of the two representations made by Mr Leung on behalf of Mr Wong, a Departmental Minute was prepared for the Minister’s consideration in relation to the question of revocation of the original decision.  Attached to the submission was a copy of the Decision Record, which, of course, related to the original decision, and copies of Mr Leung’s two subsequent representations on behalf of Mr Wong.

37                  The Departmental submission summarised the arguments in the representations, and referred, in particular, to the complaint by Mr Wong that he was not in a position to address the information contained in Attachments C1–10.

reasoning

The Minister’s motions in N 297/03 relating to the original decision and in N 298/03 relating to the refusal to revoke decision

38                  I was told that the Minister’s motions for summary dismissal were brought on the assumption that they would be heard prior to the final hearing in respect of the other grounds.  It has proved somewhat artificial for the motions for summary dismissal to be heard on the occasion of the final hearing.  But argument has been addressed in the first instance to the motions, and I will deal with them first.

39                  The Minister submits that the principle of doctrine of res judicata (for convenience, simply ‘res judicata’) or, alternatively, the principle or doctrine of issue estoppel (for convenience, simply ‘issue estoppel’), prevents Mr Wong from reagitating grounds (a) to (g) in N 297/03 and grounds (a) to (c), (e) and (f) in N 298/03, because:

·        The ‘causes of action’ or ‘claims to relief’ based on those grounds and the issues which those grounds raised did not survive, and were finally determined by, respectively, the judgment of Tamberlin J in the First Earlier Proceeding and the judgment of Wilcox J in the Second Earlier Proceeding; and

·        res judicata and issue estoppel apply to defeat Mr Wong of their own force and I have no discretion not to allow them to have that effect.

The Minister accepts, however, that the principle (‘Anshun estoppel’) recognised in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’), on which he relies on the final hearing in respect of grounds (h) and (i) in N 297/03 and in respect of ground (d) in N 298/03, and in respect of any of the other grounds which I may conclude, contrary to his submission on the motions, are not barred by res judicata or issue estoppel, does involve a discretionary element.

40                  Mr Wong submits on the Minister’s motions that it is arguable that res judicata and issue estoppel do not apply where the earlier proceeding was in the nature of an application for judicial review of an administrative decision.  The artificiality to which I referred at [38] above is illustrated by the fact that, if I were to accept this submission, I would nonetheless be faced with the question whether they do or do not apply in such circumstances, as on the final hearing on which I am embarked.  Mr Wong further submits that in any event I have a discretion not to apply res judicata and issue estoppel.

41                  I have come to the conclusion that, sitting as I am as a single judge, I am bound to accept that res judicata and issue estoppel do apply where the earlier proceeding was in the nature of an application for judicial review of an administrative decision, and that they apply independently of any exercise of discretion.  In the alternative, that is to say, if I am not so bound, I have concluded that even on the present motions for summary dismissal, there is a course of decision in the Court to the effect mentioned, which I should follow unless convinced it is clearly wrong, and I am not so convinced.

42                  In support of the applicability of res judicata and issue estoppel where the earlier proceeding was in the nature of an application for judicial review of an administrative decision, as well as of the non-discretionary nature of those doctrines, the Minister relies on the Full Court decision of this Court in Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 (‘Taylor v Ansett’) at 354–6 per Fisher J, 365 per Ryan J, and on the judgments of Merkel J in Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 (‘Somanader’);  Sackville J in BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 (‘BC’);  Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561 (‘LX’), and Merkel J in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 (‘Thayananthan’).

43                  I need not discuss res judicata or issue estoppel at length.  (The expression ‘res judicata’ is sometimes used to include issue estoppel as one form, and merger of cause of action in judgment as a different form, but, consistently with the cases to be discussed below, I will use it here to refer to the form of estoppel which arises from the establishment, or failure to establish, a cause of action, by reason of a judgment.)  For res judicata to operate:

·        there must have been a final judgment (albeit appealable) within its jurisdiction, by a judicial tribunal, based on the establishment or failure to establish a cause of action;

·        the later proceeding must raise the same cause of action; and

·        except where the prior judgment was in rem, the parties to the two proceedings must be the same: cf Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3^rd ed, 1996) at 1–3;  Campbell, ‘Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation’ (1994) 20 Mon U L Rev 21 at 21–22, and cases cited in both works.

44                  For issue estoppel to apply, an issue of fact or law which is raised for decision in the later proceeding must necessarily have been determined by reason of the final judgment in the earlier proceeding, and, again, except where the prior judgment was in rem, there must be identity of parties:  Spencer Bower, Turner and Handley, chs 8, 9;  Campbell at 22–23, and cases cited in both works.

45                  In Blair v Curran (1939) 62 CLR 464, Dixon J distinguished  between res judicata and issue estoppel on the basis that in the case of res judicata the cause of action itself has ‘passed into judgment, so that it is merged and has no longer has an independent existence’, whereas, in the case of issue estoppel, ‘for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order’ (at 532 – the passage was adopted in Anshun by Gibbs CJ, Mason and Aickin JJ at 597).

46                  Where the earlier proceeding is dismissed in so far as it is based on a particular cause of action, that cause of action does not merge in the judgment:  cf Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543 (‘Macquarie Bank’) at 556 per Clarke JA, with whom Priestley JA agreed;  BC (at [19] per Sackville J).

47                  Reliance on the same cause of action in successive proceedings will ordinarily raise the same issues, so that if a litigant is defeated by res judicata, an issue estoppel will also be present.  But the converse is not necessarily true:  an issue estoppel may defeat a litigant without res judicata doing so; cf the passages from the judgment of Dixon J in Blair v Curran set out in [45] above.

48                  The expression ‘cause of action’ can bear different meanings, and Brennan J observed in Anshun (at 610–611) that the imprecision in its meaning ‘tends to uncertainty in defining the ambit of the [res judicata] rule’.

49                  ‘Anshun estoppel’ applies ‘to every point which properly belonged to the subject of [earlier] litigation, … which the part[y], exercising reasonable diligence, might have brought forward at the time [of the earlier proceeding]’:  Henderson v Henderson (1843) 3 Hare 100 (67 ER 313) (‘Henderson’) at 115 (ER 319) (itself an instance of res judicata).  The principle was identified by Gibbs CJ, Mason and Aickin JJ in Anshun itself as operating where ‘the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’ (at 602).  The Minister accepts that where the Anshun estoppel test is met, the Court, nonetheless, has a discretion, where ‘special circumstances’ exist, to allow the later proceeding to continue.

50                  I turn now to the cases relied on by the Minister.  In Taylor v Ansett, the appellant (‘Taylor’) was the Secretary of the Department of Aviation.  He had made a decision under cl 6(1)(c) of the ‘Airlines Agreement’ which was contained in a Schedule to the Airlines Agreement Act 1981 (Cth).  The respondent, Ansett, applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) for review of the decision.  Taylor filed a notice of objection to competency, asserting that the decision was not ‘of an administrative character’ and was not made ‘under an enactment’ within the definition of the expression ‘decision to which this Act applies’ in s 3(1) of the ADJR Act.

51                  These questions had been determined in an earlier proceeding.  Prior to the earlier proceeding, Ansett had requested Taylor to provide a statement of findings and reasons relating to the decision.  Following his refusal, Ansett launched the earlier proceeding.  After a hearing, Lockhart J declared under s 13(4A) of the ADJR Act, that Ansett had been entitled to make the request.  In making that declaration, his Honour found that Taylor’s decision was one ‘of an administrative character’ and made ‘under an enactment’.  Taylor appealed.  The appeal was still pending when Lockhart J gave the further decision referred to below.  The appeal was subsequently discontinued.

52                  On the objection to competency in Ansett’s later application for review under the ADJR Act, Taylor adopted, without repeating, the submissions he had made in the earlier proceeding.  Lockhart J overruled the objection to competency for the reasons he had given in the earlier proceeding.  The question of issue estoppel was not raised before his Honour.  On appeal (with leave) from this interlocutory judgment of Lockhart J, all three members of the Full Court (Northrop, Fisher and Ryan JJ) agreed that the appeal should be dismissed on the grounds that Taylor’s decision was, indeed, a decision of an administrative character made under an enactment.  But Fisher and Ryan JJ (Northrop J dissenting) also held that Taylor’s objection to competency must be overruled because of an issue estoppel arising from what Taylor conceded to be a ‘final decision’ in the form of Lockhart J’s declaration in the earlier proceeding.

53                  Fisher J (at 354–6) distinguished the decision of the Queen’s Bench Division in R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1983] 1 WLR 524 (‘Hackney LBC’), in which it was held that issue estoppel does not apply where the earlier proceeding was an application for judicial review.  Ryan J (at 364–5) agreed with Fisher J.  Northrop J’s dissent was based on ‘the peculiar facts of [the] appeal’ (at 346), and his Honour refrained from expressing an opinion as to ‘whether in an appropriate case, estoppel could be raised as a defence to an application under the Judicial Review Act’.

54                  Even though the Full Court’s decision was also sustainable on another ground which commanded unanimous assent, I am bound to follow the view expressed by the majority in Taylor v Ansett, because that view was, and was intended by the majority to be, an independent reason, sufficient alone to support the Court’s decision:  cf New South Wales Taxation Commissioners v Palmer [1907] AC 179 at 184;  Jacobs v London County Council [1950] AC 361 at 378;  Re Martin, Deceased [1953] St R Qd 37 at 45;  Burt v Barry & Roberts Ltd;  Ex parte Barry & Roberts [1956] St R Qd 207 at 218 per Mack J.

55                  In Somanader,Merkel J thought that res judicata, alternatively, issue estoppel, defeated the applicants.  The applicants had applied to this Court for review under Pt 8 of the Act, in its then form, of a decision of the Refugee Review Tribunal (‘RRT’), affirming a decision of a delegate of the Minister not to grant them protection visas.  By consent, their application was dismissed.  Later they commenced a proceeding in the High Court seeking constitutional writs in respect of the RRT’s decision.  The High Court remitted to this Court that part of the matter which related to claims that had been made in the earlier Pt 8 proceeding in this Court.

56                  Merkel J held, referring to Taylor v Ansett, that res judicata barred the reagitation of the same claims.  It did not matter that the successive proceedings, were like those in the present case, different in form, because the question whether they resolved the same causes of action was a question substance, not of form.

57                  In applying res judicata, Merkel J observed (at [65]) that there was ‘commonality of the causes of action’, and continued:

‘The substratum of facts giving rise to the right to review are exactly the same.  The factual circumstances relied upon to establish the right to relief are the same.  The substance of the two proceedings is the same.  The right to relief in each case is informed by the same substantive law principles.  It is not contended that the parties to the two sets of proceedings differ in any material respect.  Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case.’

Merkel J also held (treating it as something different) that issue estoppel operated to defeat the applicants.  His Honour did not need to address Anshun estoppel.

58                  Merkel J’s observations set out in the preceding paragraph are applicable, with necessary formal adjustments, in the circumstances of the present case, in so far as those circumstances concern the overlapping grounds mentioned earlier.

59                  In BC, the earlier proceeding was, as in Somanader, an application to this Court under Pt 8 of the Act for review of a decision of the RRT.  Also as in Somanader, the later proceeding began as an application in the High Court under s 75(v) of the Constitution for constitutional writs in respect of the same decision.  The High Court remitted part of the matter pending in that Court to this.  The earlier application under Pt 8 had been dismissed by Madgwick J following a hearing.  The applicant did not appeal from Madgwick J’s judgment.

60                  The Minister relied on res judicata and Anshun estoppelbut Sackville J noted that the Minister’s written submissions also referred to issue estoppel.  His Honour understood that the applicant did not suggest that, in the circumstances of case, issue estoppel would apply if res judicata did not.

61                  Sackville J noted that counsel for the applicant did not dispute the correctness of Merkel J’s holding in Somanader that res judicata could operate where the earlier proceeding was in the nature of an application for judicial review.  In the event, his Honour held that res judicata did not bar the applicant from pursuing the remitted proceeding because the ground relied on in remitted proceeding, jurisdictional unreasonableness, had not been relied on in the earlier proceeding before Madgwick J.  Sackville J held, however, that Anshun estoppel defeated the applicant, and, in particular, that there were no special circumstances which should preclude that result.  His Honour also gave an alternative ground for dismissing the application.

62                  An appeal from Sackville J’s decision was dismissed on that alternative ground (BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221).  In relation to the Anshun estoppel point, although unnecessary for the decision, the Full Court offered the opinion that some of the circumstances relied on by the appellant, when taken cumulatively, amounted to special circumstances as to why Anshun estoppel did not defeat the appellants.  I derive little assistance from the BC proceeding on the present issue because the applicability of res judicata in the context of judicial review of administrative decisions was conceded rather than determined.

63                  In LX,Heerey J adopted Merkel J’s analysis in Somanader.  In LX, as in Somanader, the proceeding before this Court was a remitted application in the High Court for constitutional writs in respect of a decision of the RRT, whereas the earlier proceeding had been an application to this Court under Pt 8 of the Act, as it then was, for review of that decision.  Heerey J concluded that the passage set out at [57] above from Merkel J’s judgment in Somanader was applicable in the circumstances of the case before him.  As to one ground (actual bias) which had not been raised in the earlier proceeding, Heerey J decided that Anshun estoppel applied to defeat the applicants.

64                  Finally in this line of cases, Merkel J applied his reasoning in Somanader in Thayananthan.  Thayananthan, like Somanader, involved successive applications for judicial review under Pt 8 of the Act and for constitutional writs under s 75(v) of the Constitution.  As in Somanader, his Honour held that res judicata barred the applicants.

65                  Senior counsel for Mr Wong submits that I should not accept that res judicata or issue estoppel has any role in the circumstances of the present case.  He submits that the case should be seen as raising an issue of Anshun estoppel alone, and, therefore, as raising a discretionary issue which is to be resolved by answering the question whether it is an abuse of the Court’s process for Mr Wong to relitigate the ‘overlapping grounds’.

66                  Senior counsel for Mr Wong makes the following submissions:

• Taylor v Ansett is distinguishable because the successive proceedings there were both under the ADJR Act (strictly, this is not correct:  the declaration of entitlement to request a statement of reasons was not made in the course of the judicial review proceeding), whereas in the present case the First Earlier Proceeding and the Second Earlier Proceeding were both applications in this Court under s 39B of the Judiciary Act, while the later (present) proceedings (N 297/03 and N 298/03) are remitted applications, commenced in the High Court, for constitutional writs.
• It is only the decisions of Merkel J in Somanader and Thayananthan which provide authority for the proposition that res judicata can bar a later application for constitutional writs.
• There is respectable support for the view that where an earlier proceeding is for certiorariand other prerogative remedies, the court has not finally determined the validity of the administrative decision as between the parties, but has decided only whether there was a plain excess of jurisdiction;  senior counsel for Mr Wong referred to Wade and Forsyth, Administrative Law (8^th ed, 2000) at 255;  Hackney LBC (and, on appeal, at [1984] 1 WLR 592);  R v Home Secretary;  Ex parte Momin Ali [1984] 1 WLR 663 at 669–670;  Campbell op cit at 26–33.
• Res judicata and issue estoppel do not ‘automatically’ apply in public law litigation;  ‘the extreme view’ adopted in Hackney LBC, said by senior counsel for Mr Wong to be that those principles have no application at all to judicial review of administrative decisions and that it is a case of ‘discretion or nothing’, should be rejected; it should be accepted that the doctrines apply where the earlier decision is against the Minister;  otherwise, however, the doctrines can apply to judicial review of administrative decisions only with some modifications, one of which is that they cannot be applied so as to prevent effect being given to a mandatory statutory provision, such as that found in s 501C(3) of the Act.
• There is, in any event, a ‘special circumstances’ exception to the operation of issue estoppel, and an illustration occurs where further material becomes available which was relevant to the correct determination of the issue in question in the earlier proceeding, which could not, by reasonable diligence, have been brought forward in that proceeding:  Arnold v NatWest Bank Plc [1991] 2 AC 93, esp at 108–109 per Lord Keith of Kinkel, with whom the other members of the House of Lords agreed.

67                  With respect, I find persuasive Professor Campbell’s criticisms of the grounds on which Hackney LBC was distinguished in Taylor v Ansett.  But I do not accept Mr Wong’s submission that the opinion of the majority in that case is binding authority only in relation to proceedings to proceedings under the ADJR Act.  I see no distinction of principle in the present respect between the earlier application for judicial review under the ADJR Act in Taylor v Ansett and the earlier applications under s 39B of the Judiciary Act in the present case.

68                  Spencer Bower, Turner and Handley states (at 200):

‘Res judicata is so fundamental that it is hard to think why an order granting judicial review should not give rise to res judicata estoppels.’

More generally, the learned authors note (at 202) that Australian authority supports the existence of res judicata in judicial review proceedings, citing Taylor v Ansett, and referring to Vitosh v Brisbane City Council (1955) 93 CLR 622.  In the case last mentioned, an attempt was made to bar a later action for a declaration on the basis of an issue estoppel said to arise from an earlier decision refusing mandamus, and although the action failed on the facts, it was not suggested that the issue estoppel could not arise because of the nature of the earlier proceeding.

69                  Professor Campbell concludes (at 33) that ‘[n]o convincing reasons … have been given for exempting judicial review proceedings, or public law litigation generally, from the operation of estoppel principles’.  The question raised by the learned author is whether, and if so what, modifications should be imposed in the application of the principles in public law litigation.  With respect, it seems to me that a difficulty in the learned author’s suggestion is that it seems to make the application of estoppel principles discretionary, like Anshun estoppel, yet their non-discretionary nature is well-established as distinguishing them from Anshun estoppel;  cf Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 504–505 per Brennan J;  510–511 per Deane, Toohey and Gaudron JJ;  512 per Dawson J.

70                  The ultimate question posed by the Minister’s motions is whether it is an abuse of process within O 20 r 2(1)(c) of the Federal Court Rules for Mr Wong to pursue the claims for relief made in N 297/03 and N 298/03 on the very grounds he relied on in the First Earlier Proceeding and the Second Earlier Proceeding respectively.  The overlapping grounds as between the First Earlier Proceeding and N 297/03, and the overlapping grounds as between the Second Earlier Proceeding and N 298/03, are identical.  In my opinion, I am constrained by the decision in Taylor v Ansett, in which Hackney LBC was, rightly or wrongly, considered and distinguished by a majority of the Full Court of this Court, to accept that in the circumstances mentioned, Mr Wong is barred by an issue estoppel from pursuing the overlapping grounds, and to hold that for this reason it would be an abuse of process for him to do so.  It is for a Full Court to consider whether to overrule the holding of Fisher J and Ryan J in Taylor v Ansett.

71                  Moreover, I would follow Merkel J in Somanader and Thayananthan and Heerey J in LX unless I thought their Honours were clearly wrong in holding that res judicata can operate as a bar where the earlier proceeding was in the nature of a judicial review of an administrative decision.  In my opinion, treating the reference to res judicata as including a reference to the estoppel which arises from the earlier dismissal, I do not think they were clearly wrong.  Indeed, I did not understand senior counsel for Mr Wong to submit that they were.  Therefore, in dealing with the Minister’s motions, I would follow their Honours.  It is for a Full Court to consider whether to overrule them.

72                  If I did not hold the views expressed in the last two paragraphs, I would, according to Mr Wong’s submission, be required to consider whether there are ‘special circumstances’ permitting me not to allow issue estoppel to have its ordinary operation.  It is not clear, however, that there is, in Australia, a ‘special circumstances’ exception to the operation of issue estoppel; cf O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 258 per Brennan J; Linsley v Petrie [1998] 1 VR 427 at 441–2 per Hayne JA, 449 per Smith AJA.  Without deciding whether the exception does form part of Australian law, I will address the matters relied on by Mr Wong as amounting to special circumstances.

73                  Mr Wong refers to the following circumstances, advanced and relied on by the applicant in BC ([2002] FCAFC 221 at [31]), as described in the Full Court’s obiter dicta concerning Anshun estoppel:

‘(a)      the proceedings raised important issues concerning the life and liberty of the appellant and were analogous to criminal proceedings;

(b)       the Minister is a respondent by force of statute only, a respondent not subject to pressures of costs and time which often weigh on individuals who are litigants;

(c)        review is sought in the context of complex bifurcated process of review (a reference to the alternative sources of judicial review available in the High Court of Australia and this Court);

(d)       the state of the authorities at the relevant time was such that it was reasonable not to rely on jurisdictional unreasonableness;’

74                  Senior counsel for Mr Wong also relies on the reference by the Full Court in BC, with apparent approval, to certain passages from the judgment of Madgwick J in Stuart v Sanderson (2000) 100 FCR 150 (‘Stuart v Sanderson’).  In Stuart v Sanderson, the applicant had sought judicial review under the ADJR Act before Beaumont J of a decision of an authorised delegate of the Chief of the Army, confirming the decision of an Army reviewing authority, upholding three convictions of the applicant and her discharge from military service.  The fact that the applicant had not had the benefit of legal representation during the military proceedings was referred to before his Honour but was not pressed as a ground of review.  His Honour dismissed the application.  The applicant then brought a fresh proceeding in the Court under s 39B of the Judiciary Act.

75                  Madgwick J held that it was unreasonable, for Anshun estoppel purposes, for the applicant not to have relied, in the ADJR proceeding before Beaumont J, on the fact that she had not been legally represented in the earlier military proceedings.  Madgwick J then considered whether, nonetheless, ‘special circumstances’ existed which displaced the operation of Anshun estoppel.  His Honour thought they did.  He referred to the non-application of Anshun estoppel in criminal proceedings in a manner which would prevent an accused person from asserting his or her innocence.  He said that the applicant before him should not lightly be denied the opportunity to raise a question which could have been raised in the earlier proceeding, which, although civil, concerned the criminal process.  According to the Full Court’s summary in BC (at [35]), his Honour referred to the following as constituting ‘special circumstances’:

‘ •  the applicant had been denied a then-existing, important right of every
      soldier (to legal representation when charged with offences);

·        the consequence of allowing her to take the point would not go beyond inconvenience and expense (albeit to a not insignificant degree); and

·        the respondents could at least in part be compensated by a costs order, were litigants only in an official capacity, and were unlikely to feel the other pressures which often weigh on individuals who are litigants.’

76                  In BC, Sackville J had distinguished Stuart v Sanderson on the basis that the applicant in BC was not exposed to the application of the criminal law or criminal sanctions, notwithstanding the possible serious consequences for him (following a final determination that the applicant was not entitled to a protection visa, removal from Australia under s 198 of the Act).

77                  The Full Court in BC held that the four factors, (a) to (d), listed at [73] above constituted special circumstances.  Senior counsel for Mr Wong submits that the circumstances described in (a), (b) and (c) apply in the present case.  In addition, he relies on the late discovery, without fault on Mr Wong’s part, of the fact that the information in the CNCC was not communicated to the Minister.

78                  In my opinion, there are not present, in this case, special circumstances which would warrant the non-application of issue estoppel.  On the evidence before the Court, this case is not concerned with the life or liberty of Mr Wong, and there is no analogy with criminal proceedings or criminal sanctions against him.  One may speculate that more may be at stake than the non-renewal of a student visa in view of the number and cost of the various proceedings launched by Mr Wong, but I must put speculation to one side.  On the evidence before the Court, the case concerns a refusal to renew a student visa, a visa which would, if granted, permit Mr Wong to do that which, without the visa, he would not be able to do, namely, to remain in Australia for a particular period for a particular purpose.

79                  For the above reasons, subject to what is said below concerning sub-ground (c)(i) in N 297/03 and sub-ground (a)(i) in N 298/03, the motions for summary dismissal on the ground of abuse of process succeed.

80                  I turn now to those new sub-grounds.

81                  As noted earlier, the counterpart in the First Earlier Proceeding of the present ground (c) in N 297/03, did not contain the words emphasised by me in [7] above.  Similarly, the counterpart in the Second Earlier Proceeding of the present ground (a) in N 298/03 did not contain the words emphasised by me in [12] above.

82                  The Minister submits that the difference is only ‘cosmetic’.  In my opinion, however, the complaint now made in each new sub-ground is different from the related one made in the First Earlier Proceeding and the Second Earlier Proceeding.  There, Mr Wong’s complaint was that the Minister did not take into account Mr Wong’s character since entering Australia.  By the new sub-ground, however, Mr Wong claims that the Minister did not take into account the fact that Mr Wong had no history of conviction for any criminal offence.  Dismissal of the First Earlier Proceeding and the Second Earlier Proceeding is consistent with the survival of the new sub-ground.  That is to say, it does not follow from the fact of those dismissals that the Court necessarily must have taken into account and rejected as a ground of review that the Minister had not been advised that Mr Wong had no history of conviction for any original offence.

83                  In my opinion, neither res judicata nor issue estoppel applies to defeat Mr Wong in respect of either new sub-ground. In this respect, the Minister’s motions for summary dismissal fail.

The final hearing of N 297/03 and N 298/03 (including Anshun estoppel)

General

84                  Many issues were argued on he final hearing.  At the heart of grounds (h) and (i) in N 297/03 and ground (d) in N 298/03 is the proposition for which Mr Wong contends, that contrary to the Decision Record, s 501C(3) obliged the Minister to give Mr Wong particulars of the information contained in Attachments C1–10.  Mr Wong submits that the Minister’s failure to observe that natural justice style requirement invalidated the refusal to revoke decision.  Mr Wong also submits that it invalidated the original decision because:

• the original decision and the refusal to revoke decision were two phases of a single process, and although the non-compliance with s 501C(3) occurred, logically and chronologically after the original decision, the case is one in which the legislative scheme evinces an intention that the validity of the original decision should depend on the ‘delayed according of natural justice’ for which s 501C(3) provides.  (Mr Wong referred to Re Minister for Immigration & Multicultural & Indigenous Affairs;  Ex parte Palme [2003] HCA 56 (‘Palme’) at [44] per Gleeson CJ, Gummow and Heydon JJ as recognising the possibility that the taking of a step, which logically and temporally succeeds the exercise of a power, may be made by legislation a condition precedent to that exercise.);
• the Minister made the original decision under the influence of a mistaken assumption that he was prohibited by s 503A from disclosing the information contained in Attachments C1–10 to Mr Wong.

85                  Mr Wong submits that s 503A did not prohibit the Minister from giving him particulars of the information in Attachments C1–10, as the Minister was otherwise required to do by s 501C(3)(a)(ii), because:

• on its proper construction, s 503A does not prohibit ‘the Minister’ from divulging information of a kind described in the section;
• the information in Attachments C1–10 was not communicated ‘on condition that it be treated as confidential information’; and
• the information in Attachments C1–10 was not communicated by a ‘gazetted agency’ as defined in s 503A(9) of the Act.

Does s 503A, on its proper construction, prohibit ‘the Minister’ from divulging information of the kind described in the section?

86                  Since it is not suggested that the information contained in Attachments C1–10 was ‘non-disclosable information’, s 501C(3) required the Minister to give Mr Wong particulars of the information contained in Attachments C1–10, unless s 503A prohibited him from doing so (s 503A(6)(a) provides that s 503A has effect despite anything in ‘any other provision of this Act’, an expression which is apt to include the provision found in s 501C(3)).

87                  Section 503A is awkwardly expressed.  It is arguable that the section’s prohibition against disclosure applies to the Minister and it is arguable that it does not.

88                  The expression ‘authorised migration officer’ is defined in s 503A(9) to mean ‘a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under [the] Act’.  The expression ‘Commonwealth officer’ is defined, also in s 503A(9), as having the same meaning as in s 70 of the Crimes Act 1914 (Cth).  The expression ‘Commonwealth officer’ is defined in s 3 of the Crimes Act 1914 to mean ‘a person holding office under, or employed by, the Commonwealth’, and to include particular office-holders listed in the definition.  Section 64 of the Constitution empowers the Governor-General to appoint ‘officers’ to administer departments of State of the Commonwealth, and provides that ‘[s]uch officers shall hold office during the pleasure of the Governor-General’.  It does not appear ever to have been questioned that a Minister of the Commonwealth is an officer of the Commonwealth within s 75(v) of the Constitution:  cf the discussion of the breadth of the expression ‘officer of the Commonwealth’ in that provision in The Tramways Case (No 1) (1914) 18 CLR 54 at 66–67 per Barton J, 82–83 per Gavan, Duffy and Rich JJ.

89                  Against this line of authority is the distinction made between ‘the Minister’ on the one hand and ‘an authorised migration officer’ or ‘a Commonwealth officer’ on the other hand throughout s 503A (the terms of which were set out at [35] above).  Reference may be made, in particular, to:

·        s 503A(1)(a)(i)

·        s 503A(1)(b)(i)

·        s 503A(2)(b)

·        s 503A(2)(c)

·        s 503A(3)

·        s 503A(5).

90                  The distinction made throughout the section is clear, consistent and schematic.  Subsection 503A(1) addresses information which is communicated in the first instance to an authorised migration officer.  The subsection prohibits that person from divulging the information except to the Minister or an authorised migration officer.  If this prohibition was intended to apply to the Minister, one would expect the opening words to have been ‘if information is communicated to the Minister or an authorised migration officer’, or, in the alternative, one would expect the words ‘the Minister or’, where they immediately precede, an ‘authorised migration officer’, to be omitted.

91                  The lack of any reference to ‘the Minister’ in the opening words in par (b) of s 503A(1) is particularly striking, in view of the identification in par (a) of both the Minister and an authorised migration officer as the persons to whom information may lawfully be communicated.

92                  The duality of the scheme of s 503A(1) again appears in s 503A(2)(a) and (b).  Paragraph (c) appears to be directed to courts, tribunals, parliaments, parliamentary committees and other bodies or persons, and requires that neither the Minister nor authorised migration officers be required by them to divulge s 503A protected information.  In striking contrast, par (d) obliges only the authorised migration officer not to give the information in evidence.  The meaning is plain:  the prohibition does not apply to the Minister.

93                  Subsection (3) treats not only ‘the Minister’ but any Minister as falling outside the expression ‘Commonwealth officer’.

94                  Subsection (5) repeats the distinction between the Minister and a ‘Commonwealth officer’.

95                  In my opinion, s 503A(1) and (2) were introduced to prohibit authorised migration officers, but not the Minister, from divulging, while exempting both from the coercive powers of courts and the other bodies mentioned in s 503A(2)(c) and (d).

96                  There is a conflict between the argument, based on the definition of ‘authorised officer’ in s 503A(9), that that expression, wherever used in s 503A, includes any Minister of the Commonwealth, including ‘the Minister’, and the argument based on the text and scheme of the section, that it does not.

97                  In my opinion, the latter argument is more persuasive:  the expression ‘authorised migration officer’ in s 503A(1) and (2) does not include ‘the Minister’.  In my view the text and scheme of s 503A reveals a legislative intention that the Minister not be subject to the prohibition mentioned.

98                  I have reached this conclusion even without reference to the footnote below the definition of ‘Commonwealth officer’ in s 503A(9):  ‘A Minister is not a Commonwealth officer’.  Such a footnote does not form part of the Act (I have, however, included footnotes in s 503A as set out in [35] earlier), but a court may take it into account for interpretative purposes:  Acts Interpretation Act 1901 (Cth) (‘the AI Act’) ss 13(3) and 15AB; Re Application of the News Corp Ltd (1987) 15 FCR 227 at 240per Bowen CJ.  The footnote to s 503A(9) appeared in the Bill for the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, which was laid before Parliament.  The footnote gives further support for my view that the Parliament did not intend that in s 503A, ‘Commonwealth officer’, and therefore ‘authorised migration officer’, should include the Minister.

99                  A literal substitution of the definition of ‘authorised migration officer’ for that expression throughout s 503A would be so discordant with the harmonious duality that runs throughout the section, that it must yield to the latter as the more direct and immediate indication of the true legislative intention:  cf Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 307 per Gibbs CJ, 310–311 per Stephen J, 319–323 per Mason and Wilson JJ;  Mills v Meeking (1990) 91 ALR 16 at 30–31 per Dawson J, 36 per McHugh J;  Saraswati v The Queen (1991) 172 CLR 1 at 20–21 per McHugh J;  Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’) at [69]–[78] per McHugh, Gummow, Kirby and Hayne JJ;  CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 at 635 per Brennan CJ, Dawson, Toohey and Gummow JJ.

100               It follows that s 503A did not prohibit the Minister from giving to Mr Wong particulars of the information contained in Attachments C1–10, and that s 501C(3)(a)(ii) required the Minister to do so.

101               Ordinarily, it would follow that the refusal to revoke decision was invalid as involving jurisdictional error, and should be set aside for non-compliance by the Minister with a statutory procedural requirement designed to give ‘natural justice style’ protection to Mr Wong (cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (‘S157’): the purpose of the requirement that particulars of relevant information be given to Mr Wong was to enable him to exercise effectually his right to make representations relating to revocation of the original decision.  But the Minister submits that Anshun estoppel defeats Mr Wong.  I will consider the Anshun estoppel argument relied on by the Minister after addressing the other two grounds on which Mr Wong relies in support of his submission that s 503A did not prohibit the Minister from giving him particulars of relevant information.

Was the information contained in Attachment C1–10 communicated to an authorised migration officer ‘on condition that it be treated as confidential information’?

102               The evidence as to the circumstances in which the information contained in Attachments C1–10 came into the possession of the Department is found in the affidavits of Peter Coyne and Craig Raymond Riviere. 

103               Mr Coyne has been employed by the Department since February 1988.  From June 2000 until June 2003 he was the Principal Migration Officer – Compliance (‘PMOC’) based at the Australian Embassy in Beijing in PRC.  He is competent in speaking and reading Chinese (Mandarin) and studied Chinese language as part of his undergraduate degree.  In Beijing, Mr Coyne’s duties as a PMOC included the performance of functions and the exercise of powers under the Act.  (Mr Coyne was therefore an ‘authorised migration officer’ – see the definition of that expression in s 503A(9) set out at [35] earlier.)  Mr Coyne said that, as a PMOC stationed at Beijing, his duties included:

‘working to identify and report on the activities of people smugglers; and to counter foreign nationals who may try to enter Australia illegally including through use of false or fraudulent documentation or who may otherwise seek to engage in immigration malpractice.’

Paragraph 7 of Mr Coyne’s affidavit was as follows:

‘a significant aspect of my role as PMOC in Beijing was liaison and information exchange with PRC Government authorities in Beijing and particularly the Ministry of Public Security (MPS).  MPS is a government department in PRC set up under the State Council and is in charge of law enforcement, security and intelligence operations nationwide.  Its functions include police supervision, domestic security, economic crimes investigation, public security, border control, criminal investigation, exit and entry control, international cooperation and drug control.’

104               I deferred ruling on an objection by senior counsel for Mr Wong to par 8 of Mr Coyne’s affidavit which was as follows:

‘During the period that I held the position of PMOC in Beijing, exchange of information between the Department and MPS took place from time to time within a formal framework on the basis that the information exchanged was to be held in confidence by the receiving party.  Liaison and the exchange of information between MPS and the Department took place under:

(a)       the “Memorandum of Understanding between the Government of Australia and the Government of the People’s Republic of China on Co-operation in Combating Crime” dated 8 September 1999 (the MOU); and

(b)       the “Minutes of Discussions between the Department of Immigration and Multicultural Affairs of Australia, the Australian Federal Police and the Ministry of Public Security of the People’s Republic of China concerning Strengthening Law Enforcement Co-operation and Combating Illegal Immigration” dated 16 May 2000 (the Minutes).’

105               I now reject that paragraph.  Senior counsel for the Minister informed me that he was expressly instructed by his client not to tender the Memorandum of Understanding (‘MOU’) or the Minutes of Discussion (‘Minutes’) referred to in this paragraph.  I regard the first sentence in par 8 as a purported statement of an effect of the MOU and of the Minutes, which I take to represent ‘the formal framework’ referred to in that sentence.  The statement can be no more than one as to the deponent’s understanding of that effect – a matter for the Court, as to which Mr Coyne’s understanding may or may not accord with mine.  His understanding is not probative on the matter.  The question posed by s 503A(1) here is whether the communicator, the Ministry of Public Security (‘MPS’) of the PRC, attached a condition to its communication of the information in Attachments C1–10, that that information be treated as confidential.  The MOU and the Minutes may assist to answer that question, but they have not been tendered and Mr Coyne’s understanding of their effect does not answer it.

106               Mr Coyne continues in his affidavit by describing the modes of ‘contact and information exchange’ which took place with the MPS during the time he was in the position of PMOC in Beijing.  Attachments C1–10 were given to Mr Coyne by the MPS on or about 3 November 2000.  (In his affidavit Mr Coyne described these documents as the ‘the Bundle’.)  Mr Coyne says that, to the best of his recollection, the Bundle was handed to him by an officer of the MPS.  The significance of this mode of communication is that elsewhere Mr Coyne  states that delivery of documents by hand to him from the MPS ‘occurred when MPS had sensitive information to give to [him or the Regional Director at the Australian Embassy] other than at a time when a formal meeting was scheduled’.

107               In par 12 of his affidavit Mr Coyne states that he believed that the information in the documents contained in the Bundle was of a kind to be ‘treated as confidential information’, and gives the following reasons for that belief:

‘(a)      the formal framework under which the exchange of such information took place which includes the MOU and the Minutes;

(b)       the circumstances surrounding the exchanges including that they occurred hand-to-hand in the present of relatively senior Department officers including the Regional Director and relatively senior MPS officers;

(c)        the sensitive nature of the documents; and

(d)       documents containing information of this nature were often stamped by MPS with “Law Enforcement – Protected” and its Chinese equivalent.’

108               I deferred ruling on the admissibility of subpar (a).  I now reject subpar (a) for the reasons I gave in [105] for rejecting par 8.

109               Other parts of Mr Coyne’s affidavit described his belief and conduct concerning the Bundle.  I accept that he believed that the documents in the Bundle were given to him by the MPS on the understanding that he would treat them as confidential and that he did so.  This evidence does not, however, establish as a matter of objective fact, that the MPS did indeed communicate the information contained in the documents in the Bundle to Mr Coyne on the basis that he would treat it as confidential.

110               Paragraphs 16 and 17 of Mr Coyne’s affidavit were as follows:

‘The Bundle comprised 102 pages in a bound booklet.  The documents in the Bundle included Chinese language documents and English translations.

At the foot of each page of the Bundle is stamped the words “Law Enforcement – Protected” in English and Chinese.  To the best of my recollection that stamp was already on the documents in the Bundle when they were given to me by MPS and to the best of my knowledge and belief that stamp was applied by or on behalf of MPS.’

I infer from this evidence that the MPS was indicating to any reader of the stamp imprint that the documents were in aid of law enforcement and that the reader was not to regard himself or herself as being at liberty to divulge their contents.

111               Mr Wong relies on the distinction drawn between a condition on the one hand, and a mere ‘hope or expectation’ on the other, noted in SWB Family Credit Union Ltd v Paramatta Tourist Services Pty Ltd (1980) 48 FLR 445 at 454 per Smithers J, and referred to recently in Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 at 138–139 per Heerey J.  The Minister replies that it is not necessarily appropriate, in the construction of s 503A, to take an approach which was developed in the commercial context of s 47(2) of the Trade Practices Act 1974 (Cth) (‘the TP Act’).  (Even in s 47(2) the word ‘condition’ has a broad meaning – see s 47(13)(a) of the TP Act.)  I agree.  The context contemplated is one in which a cooperative body, agency or organisation communicates information to an authorised migration officer.  The sanction for non-observance of a condition that the information be treated as confidential will, I presume, not be a legal one:  rather, it will be the end of cooperation and the drying up of the source of information.

112               While it is true, as senior counsel for Mr Wong submits, that it is possible that the endorsement ‘Law Enforcement – Protected’ is for MPS’s internal purposes only, the fact is that it was borne by the documents in the Bundle delivered by the MPS to Mr Coyne.  I infer that the message was addressed to Mr Coyne as to any other reader employed in the Department.

113               I need not attempt to define the expression ‘on condition that’ in s 503A(1).  I conclude that the stamp imprint establishes that the information in Attachments C1–10 was communicated to an authorised migration officer, Mr Coyne, by the MPS on condition that it be treated as confidential.

114               This conclusion makes it unnecessary for me to refer to Mr Riviere’s affidavit.

Was the information contained in Attachments C1–10 communicated by a ‘gazetted agency’ as defined in s 503A(9) of the Act?

115               As already observed, the information contained in Attachments C1–10 was communicated to Mr Coyne by the MPS.  Was the MPS a gazetted agency?  The answer depends on the terms and validity of a notice purportedly under s 503A(9), which was dated 31 May 1999, signed by the Minister, and published in the Commonwealth of Australia Gazette No GN23, 9 June 1999 (‘the Notice’).

116               The operative part of the Notice was as follows:

‘I, Philip Ruddock,Minister for Immigration and Multicultural Affairs, acting under subsection 503A(9) of the Migration Act 1958 as amended by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998:

1)                 SPECIFY each body, agency or organisation that is responsible, in a Country or Territory listed in Schedule 1 of this Instrument, for law enforcement, criminal intelligence, criminal investigation or security intelligence in that Country or Territory listed in Schedule 1.

2)                 This Instrument comes into effect on 1 June 1999.’

117               Schedule 1 to the Notice was an alphabetical list of numerous countries, including ‘China People’s Republic of’ (and ‘Australia’).

118               Paragraph (1) of the Notice simply repeats words from the definition of ‘gazetted agency’ in s 503A(9).  Mr Wong relied on Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 (‘Evans’).  In that case, Merkel J answered a separate question to the effect that the Notice was not a valid exercise of power by the Minister under s 503A(9).  However, his Honour answered a further separate question to the effect that the invalid parts of the Notice were severable, so that the Notice operated at law to specify the Western Australian Police Service for the purposes of par (b) of the definition of ‘gazetted agency’ in s 503A(9).  In so holding, his Honour took into account two provisions of the AI Act.  The first was s 46(2) which provides:

‘Where an Act confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution:

(a)               specifying, declaring or prescribing a matter or thing; or

(b)               doing anything in relation to a matter or thing;

then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things.’

119               The second provision of the AI Act taken into account by Merkel J was the provision relating to severance found in s 46(1)(b), which provides:

‘(1)      Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a)        …

(b)       any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.’

120               Merkel J referred to doubts as to the validity of the Notice expressed (obiter dicta) by a Full Court in NAAO v Secretary, Department of Immigration & Multicultural Affairs (2002) 117 FCR 401 (‘NAAO’) at [31]–[41] and concluded that the Notice failed to ‘specify’ any body, agency or organisation.  His Honour also concluded that s 46(2) of the AI Act did not save the Notice from invalidity, because it did not specify any ‘class or classes’ of bodies, agencies or organisations, either.

121               Nonetheless, his Honour applied the form of ‘severance’ recognised in s 46(1)(b) of the AI Act, and held as follows (at [44] and [45]):

‘[44]   Ultimately, I have concluded that it is unnecessary finally to determine which parts of the notice must be severed in reliance upon s 46(1)(b) as I am satisfied that, if need be, severance down to “criminal investigation” agencies in Australia, which will include the Western Australian Police Service, is valid and will amount to a specification of a class.  It is clear that in Australia the primary agencies responsible for criminal investigation (the National Crime Authority, the respective state, Northern Territory and federal police services and agencies such as the independent state anti-corruption commissions) are readily identifiable.  While there may be some argument about whether certain other agencies may also fall within that description, the limited number of such agencies and the clarity and ready applicability of the relevant criterion have led me to conclude that the class described possesses the requisite clarity and precision.

[45]    The severance discussed, other than inevitably narrowing the scope of the notice:

·        would enable the valid portion to operate independently of the invalid portion in a manner that does not change the substantial purpose and effect of the notice; and

·        does not give the notice a substantially different operation or effect;

and, accordingly, is required by s 46(1)(b).’

122               Since the hearing before me, an appeal by Mr Evans from Merkel J’s decision has been dismissed by a Full Court (Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 320) as was a cross-appeal by the Minister and the Commonwealth from his Honour’s decision ruling that the Notice was not a valid exercise of power by the Minister under s 503A(9).

123               The positions taken by their Honours in the Full Court (Gray, Kenny and Downes JJ) can be summarised as follows:

First question:  Whether the Notice was a valid exercise of power?

                        Gray J:             No

                                    Kenny J:           No

                                    Downes J:        Yes

Second question:  Whether, by reason of s 46(1)(b) of the AI Act, the reference in the notice to a ‘body, agency or organisation that is responsible [in Australia, on of the many countries listed in Schedule 1 to the Notice] for …criminal investigation’ could be severed, with the result that the Western Australian Police Service was a gazetted agency?

                                    Gray J:             No

                                    Kenny J:           Yes

                                    Downes J:        Unnecessary to answer

124               There was a majority (Gray and Kenny JJ) in agreement with the primary Judge’s negative answer to the first question.  Accordingly, the cross-appeal by the Minister and the Commonwealth was dismissed.

125               As to the second question, there an equal division of opinion (as between Gray J and Kenny J).  Accordingly, s 16(a) of the Federal Court of Australia Act 1976 (Cth) required that the judgment appealed from be affirmed.  In the result, Mr Evan’s appeal was required to be dismissed.

126               In the circumstances, I am bound to hold that the Notice was not a valid exercise of the power conferred on the Minister by s 503A(9).  The Minister submits, however, that I should hold that the severance principle reflected in s 46(1)(b) of the AI Act can be applied in such a way as to produce the conclusion that the Notice specifies the MPS.

127               The Minister’s submission raised two questions.  First, should I follow, on the one hand, Merkel J, and, on appeal, Kenny J, or, on the other hand, Gray J on appeal, in the Evans litigation?  Secondly, if the former, is the MPS, in effect, specified?

128               I will deal with these questions in turn.  However, since the matter has been discussed at length in Evans at first instance and on appeal, I will give briefer reasons than I might otherwise do.

129               I accept that ‘a body, agency or organisation’ that is responsible for one of the functions of a kind referred to in the definition of ‘gazetted agency’ in s 503A(9) is a ‘thing’ for the purposes of s 46(2) of the AI Act.  I also accept that there is no difficulty in applying s 46(1)(b) to the Notice:  the Notice provides ready means of severance by referring to:

·        a ‘body, agency, organisation’;

·        responsibility for ‘law enforcement, criminal intelligence, criminal investigation or security intelligence’; and

·        numerous countries by name.

130               As will be seen later, the Minister relies upon ‘law enforcement’ and ‘criminal investigation’ roles of the MPS.  Accordingly, the question becomes this:  does the Notice, by referring to each body, agency or organisation that is responsible for law enforcement or criminal investigation in the PRC, ‘specify’ a class of bodies, agencies or organisations for the purposes of s 503A(9) of the Act and s 46(2) of the AI Act?  In my opinion, it does not.

131               The Oxford English Dictionary gives the primary meaning of the verb to ‘specify’ as ‘to mention, speak of, or name (something) definitely or explicitly’ and the Macquarie Dictionary gives it as ‘to mention or name specifically or definitely’.  Does the Notice name definitely and explicitly a class of bodies or organisations that are responsible for law enforcement or criminal investigation in the PRC?  With respect, I agree with Gray J in the Full Court in Evans that it does not do so and find myself in disagreement with the primary Judge, Merkel J, and with Kenny J in the Full Court, in that case.  In my opinion, the use of word ‘specify’ in the definition of ‘gazetted agency’ in s 503A(9) requires the Minister to do more than what he did in the Notice, even when the Notice is read on a country by country basis in respect of the countries specified in Schedule 1 to it.  In my opinion, it is not a specification of a ‘body, agency or organisation’ that is responsible for law enforcement or criminal investigation in [the PRC], for the Minister to refer simply to ‘each body, agency or organisation that is responsible [in the PRC] for law enforcement, … , [or] criminal investigation, … in [the PRC]’.  In my opinion, the use of the word ‘specified’ in the definition of ‘gazetted agency’ required the Minister, in the first instance, to take the responsibility of identifying more precisely which bodies, agencies or organisations of a foreign country satisfy the formula in the definition.  But the terms of the Notice leave this question to be authoritatively addressed for the first time in the course of litigation, such as the present proceeding.

132               This conclusion makes it unnecessary for me to consider the second question, but I will do so.  The Minister relies on affidavit evidence of Mr Coyne and Mr Riviere as showing that the MPS is responsible in the PRC for law enforcement and criminal investigation in that country.  The Minister relies on the second sentence in par 7 of Mr Coyne’s affidavit which was set out at [103] earlier.  The Minister also relies on par 12 of Mr Riviere’s affidavit sworn on 23 October 2003, in which Mr Riviere stated:

‘12.      Throughout the period I was an officer with IPCS [Investigations Policy and Coordination Section], security or criminal intelligence and related information provided by Agencies [“overseas governments, Australian government agencies and Australian, overseas and international bodies involved in law enforcement, criminal intelligence, criminal investigation and security intelligence”] to the Department at overseas posts, including information provided by the Ministry of Public Security of the People’s Republic of China (MPS) to officers at the Beijing post, was forwarded to the Department’s Central Office, and specifically to IPCS, by diplomatic bag or occasionally by secure facsimile transmission to IPCS.’

133               Paragraph 12 of Mr Riviere’s affidavit is unpersuasive on the present issue.  For all that paragraph tells me, the MPS may have qualified as an ‘Agency’ by reason of being part of an overseas government, and even if it was an agency by reason of being ‘involved’ in one of the activities mentioned, it does not follow that it was ‘responsible for’ that activity in the PRC for the purposes of the definition of ‘gazetted agency’ in s 503A(9).

134               On the basis of Mr Coyne’s affidavit, however, I find that the MPS is a government department of the PRC;  is ‘in charge of law enforcement’ in the PRC;  and has, as one of its functions, ‘criminal investigation’.  If I had held that it was appropriate to regard the Notice as ‘specifying’ each of:

• a class of bodies, agencies or organisations responsible for law enforcement in the PRC; and
• a class of bodies, agencies or organisations responsible for criminal investigation in the PRC,

I would have concluded that the MPS satisfied the former description and perhaps the latter.  I say ‘perhaps’ because there is a question which I need not resolve.  This is whether, in order to satisfy the definition of ‘gazetted agency’, a body, agency or organisation which has criminal investigation as one of its functions, is ‘responsible for’ that activity within a country or part of a country.  I am, however, satisfied on the evidence that the MPS is responsible for law enforcement in the PRC.

135               The Minister submits that it would be futile to set aside the refusal to revoke decision (and the original decision) and to remit the matter to the Minister on the ground that the Notice was not a valid exercise of the power under s 503A(9).  The reason is that the definition of ‘gazetted agency’ in s 503A(9) was repealed and replaced with the following definition by the Migration Legislation Amendment (Protected Information) Act 2003 (Cth) (No 75, 2003) (assented to on 15 July 2003), s 3, Sch 1, Item 5D, which commenced on 16 July 2003 (see s 2, Table, Item 3 of that Act): 

‘gazetted agency means:

(a)       in the case of an Australian law enforcement or intelligence body—a body specified in a notice published by the Minister in the Gazette; or

(b)       in the case of a foreign law enforcement body—a body in a foreign country, or a part of a foreign country, that is a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette; or

(c)        a war crimes tribunal established by or under international arrangements or international law.’

The following definition of ‘foreign law enforcement body’ was inserted in s 503A(9) at the same time by the same amending Act:

‘foreign law enforcement body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in a foreign country or a part of a foreign country.’

136               Pursuant to the new definition of ‘gazetted agency’, the Minister published a new notice.  The new notice was dated 4 August 2003 and was published in the Commonwealth of Australia Gazette No GN32, 13 August 2003 (at p 2435).  There was, however, an error in the notice.  It contained in par 3 a reference to ‘the definition of “foreign countries”, or parts of foreign countries, in subsection 503A(9) of the Migration Act 1958, as amended …’.  These words were clearly intended to be ‘the definition of “gazetted agency” in subsection 503A(9) of the Migration Act 1958, as amended …’.  Fortunately, the error was soon noticed by those responsible, and a further notice dated 14 August 2003 was published in Gazette No GN35, 3 September 2003 (at p 2602), which revoked and replaced the one of a few days earlier.  Omitting formal parts, the notice now states, so far as relevant:

‘I, PHILIP RUDDOCK,… hereby:

1.         …

2.         …

3.         SPECIFY each of the foreign countries, or parts of foreign countries, listed in Schedule 2 to this notice, as foreign countries, or parts of foreign countries, for the purposes of paragraph (b) of the definition of “gazetted agency”, in subsection 503A(9) of the Migration Act 1958, as amended by the Migration Legislation Amendment (Protected Information) Act 2003.

4.         This Instrument comes into effect upon publication.’ 

Schedule 2 was a lengthy alphabetical list of foreign countries, or parts of foreign countries, which included ‘China People’s Republic of’ (unlike Schedule 1 to the Notice, Schedule 2 to the new notice does not include Australia, the Australian law enforcement or intelligence bodies being dealt with in par 2 of, and Schedule 1 to, the new notice).

137               On Mr Coyne’s evidence, the MPS is a body, agency or organisation that is responsible for law enforcement in the PRC and deals with, if it is not responsible for, criminal investigation in the PRC.

138               I do not accept that it would necessarily be futile to remit the refusal to revoke matter to the Minister.  I have held that the Minister was obliged by s 501C(3) of the Act to give particulars of, in effect, the information contained in Attachments C1–10 to Mr Wong, and that the MPS was not a gazetted agency at the time when it supplied that information to the authorised migration officer, Mr Coyne.  I make no assumptions as to the course which the Minister may be advised to take, in the light of these holdings, in relation to the refusal to revoke decision.

The effect of my conclusions above on the original decision

139               I do not accept Mr Wong’s submission that the validity of the original decision is also affected as the result of my acceptance of his submission that s 503A did not prevent the Minister from obeying s 501C(3)(a)(ii).

140               Mr Wong submits that the original decision and the refusal to revoke decision were two phases of a single process.  In my opinion, however, the terms of the Act are too clear to support this view:  there is one decision under s 501(3) made by the Minister personally to which the rules of natural justice and the Code of Procedure do not apply, and a separate decision under s 501C(4), also made by the Minister personally, to which the natural justice style provision of s 501C(3) applies.

141               In seeking a basis on which the original decision can be impugned as a result of his successful attacks on the refusal to revoke decision, Mr Wong would characterise the obligation imposed on the Minister by s 501C(3) as a provision for ‘delayed natural justice’ attached to the original decision made under s 501(3).  In my opinion, however, the terms of s 501(5) are too clear:  they do not permit an indirect attachment of natural justice style requirements to the original decision.

142               As noted earlier, Mr Wong relies on a passage from the judgment of Gleeson CJ, Gummow and Heydon JJ in Palme at [44].  While their Honours acknowledged as a possibility that a step which logically and temporally succeeds the making of a decision in exercise of power may be a condition precedent to that exercise, their Honours noted that whether it is depends on whether, on the construction of the particular Act, it was a purpose of the Act that an act done or not done in breach of the provision should be invalid (their Honours cited Project Blue Sky at [93]).  McHugh J stated (at [55]):

‘The prosecutor contends that the Minister’s failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa.  Jurisdiction is the authority to decide.  It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision.  Nevertheless,  it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision.  If it has, a decision that does not give reasons will be made without authority.  Whether a scheme has that effect is determined by applying the principles stated by this Court in Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355]. In Project Blue Sky, the majority Justices rejected [(1998) 194 CLR 355 at [92]–[93]] the traditional distinction between “mandatory” and “directory” requirements, saying that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.’

143               Applying this ‘purpose of the legislation’ test, I do not think that it was a purpose of s 501C(3) to render invalid an original decision taken earlier by the Minister under s 501(3), if s 501C(3) should not be complied with.

144               I do not accept, either, that the giving of the erroneous advice to the Minister in the Decision Record that s 503A prohibited, inter alia, the Minister himself, from disclosing to Mr Wong particulars of the information contained in Attachments C1–10, affects the validity of the original decision.  Before making the original decision, the Minister had a choice whether to make it under s 501(1) or s 501(3), and he chose the latter, knowing that the rules of natural justice and the Code of Procedure did not apply to it.  He also chose s 501(3) on the assumption also that s 503A would prohibit him from giving to Mr Wong particulars of the information contained in Attachments C1–10, and that Mr Wong’s right under s 501C(3) to make representations about revocation would, as a result, be rendered largely ineffectual.

145               I do not accept that, if the Minister had understood (correctly) prior to taking the original decision, that s 501C(3) obliged him to give Mr Wong particulars of the information contained in Attachments C1–10, he might have elected not to proceed under s 501(3), and, instead, to proceed under s 501(1).  As it was, knowing that Mr Wong’s right to make representations would be rendered largely ineffectual by the lack of particulars of relevant information, the Minister was prepared to choose the s 501(3) route, rather than the s 501(1) route.  Why, it may be asked rhetorically, should it be supposed, in the light of the choice which the Minister in fact made, with the understanding that he then had, that he might have preferred that Mr Wong be entitled to the benefit of full natural justice rights and the Code of Procedure in connection with the original decision, just because the alternative was that he would be entitled to the benefit of s 501C(3)(a)(ii) in connection with the later decision whether to revoke the original decision?  There is no reason to suppose that the Minister might have so preferred.

Anshun Estoppel

146               In the First Earlier Proceeding and the Second Earlier Proceeding, Mr Wong did not submit that s 503A and the Notice did not have the effect of prohibiting the Minister from divulging to him particulars of the information contained in Attachments C1–10.  It was assumed, certainly by Mr Wong and his legal representatives, that the Decision Record was correct in its statement (see [34] above) that the information contained in Attachments C1–10 was s 503A protected information, and could not be ‘disclosed to the applicant or his legal advisers and agents for comment’.

147               As already observed, the argument as to the proper construction of s 503A (see [86]–[100] above) and as to the invalidity of the Notice as an exercise of the power given by s 503A(9) (see [115]–[134] above) which Mr Wong now puts, are, according to his submission, relevant to his attack in N 297/03 on the original decision as well as his attack in N 298/03 on the refusal to revoke decision.  Those arguments clearly properly belonged to his attacks on those respective decisions in the First Earlier Proceeding and the Second Earlier Proceeding:  cf Henderson at 115 (ER 319).

148               The construction and validity arguments to which I have just referred are also so relevant to the subject matter of the First Earlier Proceeding and the Second Earlier Proceeding, that it was unreasonable for Mr Wong not to have relied on them in those proceedings:  Anshun at 602–603.

149               As noted earlier (see [49], [61]–[64]), even where, as I have just held, the positive conditions for the operation of Anshun estoppel exist, there is a ‘special circumstances’ exception:  cf Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981) VR 81 at 89;  Macquarie Bank at 558 per Clarke JA, with whom Priestley JA agreed;  Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296, 298–9;  Stuart v Sanderson at [29]–[36] per Madgwick J;  BC at [24] per Sackville J.

150               Mr Wong relies on the following matters as demonstrating that, although it may be found, as I have found, that it was unreasonable for him not to have raised the construction and validity arguments in the Earlier Proceedings, there are special circumstances justifying his being permitted to raise them now:

(1) }

(2) }     (again) the matters referred to in paras (a), (b) and (c) in [73] above;

(3) }    

(4)        s 501C(3) made it mandatory for the Minister to give particulars of relevant information to Mr Wong, and Anshun estoppel should not lightly be permitted to defeat such a provision, particularly one designed to afford ‘natural justice style’ safeguards;

(5)        ground (i) in N 297/03 and ground (d) in N 298/03, being ‘natural justice’ grounds, arguably could not have been relied on prior to the High Court’s decision on 4 February 2003 in S157 (all the judgments in the Earlier Proceedings, both at first instance and on appeal, were given in 2002, that is, before the High Court decision in S157);

(6)        both the construction and invalidity questions are complex;

(7)        the gazetted agency argument was based on the decision of Merkel J in Evans;

(8)        in an affidavit filed in Court on the hearing, Mr Leung has testified that on the hearing of the First Earlier Proceeding by Tamberlin J on 12 June 2002, Mr Wong accepted for the purpose of that proceeding that the Minister’s contention that s 503A prohibited disclosure to Mr Wong of any particulars of the information contained in Attachments C1–10.  Mr Leung’s affidavit continued:  ‘At that time it was proposed to contest this contention in proceedings in the Administrative Appeals Tribunal’.

151               Mr Wong was represented by senior and junior counsel in the First Earlier Proceeding and by junior counsel in the Second Earlier Proceeding (different senior counsel from senior counsel who now appears for him;  the same junior counsel has appeared for Mr Wong in both Earlier Proceedings and appears for him on the present hearing).  If the construction and gazetted agency arguments, which I have upheld, had occurred to them, counsel representing Mr Wong in the Earlier Proceedings would no doubt have put those arguments.

152               I will now turn to the special circumstances relied on by Mr Wong.

(1)        It is not shown that the refusal to issue to Mr Wong a student visa, which I presume would have allowed him to remain in Australia for a particular purpose for a limited period, raises ‘important issues concerning the life and liberty of the appellant’ or that the present ‘proceedings … [are] analogous to criminal proceedings’.

(2)        I accept that the Minister is a respondent by reason of his role under the Act, and is not subject to the same pressures of costs and time which often weigh on other litigants.  This consideration is entitled to some weight.  But Ministers, like other litigants, are ordinarily entitled to the benefit of Anshun estoppel.  Moreover, Anshun estoppel serves the public interest by ensuring that taxpayer funded government departments and courts are not troubled with the same legal dispute more than once.

(3)        I do not accept that it is a relevant special circumstance for present purposes that Mr Wong has sought judicial review ‘in the context of a complex bifurcated process of review’ (a reference to the alternative sources of judicial review available in the High Court of Australia and this Court).

(4)        Subsection 501C(3)’s requirement that the Minister give Mr Wong particulars of the relevant information was mandatory and no attempt was made to give them because of the understandable but mistaken view that s 503A prohibited the Minister from doing so.  Without the particulars, Mr Wong was disabled from making representations effectively addressing the information which was the Minister’s reason, or a part of the Minister’s reason, for making the original decision.  In my opinion, it is a weighty consideration in favour of Mr Wong that, if Anshun estoppel defeats him, the Minister will have disobeyed the mandatory provision found in s 501C(3), and the legislative policy reflected in that section will have been frustrated.

(5)        It is arguable that ground (i) in N 297/03 and ground (d) in N 298/03 could not have been relied on in the Earlier Proceedings but, since the decision of the High Court in S157, it is plain that that view does not reflect the law.  I do not, however, consider this a ‘special circumstance’ for present purposes.  Not only is there no evidence that Mr Wong refrained from relying on those grounds because that view of the law was taken by his legal advisers:  rather, there is the affidavit of his solicitor, Mr Leung (referred to at [150](8) above) to the effect that Mr Wong accepted as correct the Minister’s understanding of the effect of s 503A.

(6)        I agree that the construction question is complex, but I do not regard this as a ‘special circumstance’ for present purposes:  it was no more complex in the year 2000 than it is now, and its complexity did not prevent it from being raised in the Earlier Proceedings any more than it has prevented it from being raised now.

(7)        Merkel J delivered judgment in Evans on 30 July 2002.  Tamberlin J heard the First Earlier Proceeding on 12 June 2002 and delivered judgment on 6 August 2002.  Wilcox J heard the Second Earlier Proceeding on 6 November 2002 and delivered ex tempore reasons for judgment on that day.

Although it is understandable that the gazetted agency arguments debated before Merkel J in Evans were not put to Tamberlin J before he delivered judgment, seven days later in the First Earlier Proceeding, I do not infer from timing considerations that there was any difficulty in the gazetted agency argument being put before Wilcox J in the Second Earlier Proceeding (there is no testimony before me as to why, in fact, the gazetted agency point was not taken in either of the Earlier Proceedings).

(8)        I do not regard Mr Leung’s affidavit explanation as establishing a special circumstance.

153               In my opinion, there are special circumstances on the basis of which I should not apply Anshun estoppel.  On my construction of s 503A, or, in the alternative, on the basis of the gazetted agency argument which I have upheld, the Minister has failed completely to obey the mandate of s 501C(3), with the result that Mr Wong has not had an effective opportunity, which the Parliament intended he should have, of responding to the case made against him.  It is a serious matter that there should be a total non-compliance by the Minister with a mandatory statutory provision (I must put entirely to one side the fact that both the construction question and the gazetted agency question are difficult and finely balanced, and that it is readily understandable that the view was taken in the Department, and the Minister advised, that s 503A prohibited him from giving particulars of the information in Attachments C1–10 to Mr Wong).

154               In the exercise of my discretion, by reason of the special circumstances referred to, I decide that Anshun estoppel does not prevent Mr Wong from relying on the construction of s 503A which he has advanced, or on the argument that the Notice was not a valid exercise of the power given to the Minister by s 503A(9).

155               I must next consider whether Anshun estoppel prevents Mr Wong from relying on sub-ground (c)(i) in N 297/03 and on sub-ground (a)(i) in N 298/03.  These sub-grounds are in substance identical and can be summarised as being that the Minister was not advised of, and did not take into account, the fact that Mr Wong had no history of conviction for any criminal offence.  The factual background to this ground is set out at [24]–[27] above.

156               I am not persuaded that there is any good reason why the new sub-ground was not advanced in the First Earlier Proceeding and the Second Earlier Proceeding.  Mr Wong did not discover in June 2003 any information more than what he had in 2002 on the question whether the Minister had been advised of the contents of the CNCC.  Mr Wong knew, of course, that he himself had provided the CNCC to the Australian Consulate General in Hong Kong in June 1999, apparently in connection with his original application for a visa permitting him to enter Australia.  He knew that he had so provided it, from the time when he provided it, that is, June 1999.  The further documents provided by the solicitors to the Minister to Mr Wong’s solicitor in June 2003 may have refreshed Mr Wong’s memory of that which he already knew, but they went no further.  In my opinion, Mr Wong was in as good a position to raise the new sub-grounds in the First Earlier Proceeding and the Second Earlier Proceeding as he has been to raise them in N 297/03 and N 298/03.

157               Anshun estoppel prevents Mr Wong from relying on the new sub-grounds now.

Proceeding N 1308/03  (the Minister’s Appeal from the AAT)

158               I outlined the background to the AAT appeal at [19]–[23] above.

159               In his outline of argument dated 30 October 2003, the first day of the hearing before me, Mr Wong challenges the competency of the appeal on the ground that there was no ‘decision’ of the AAT within s 44(1) of the AAT Act.

160               Before the AAT Mr Wong asked the AAT to exercise its power given by s 64(1) of the FOI Act to require the Minister to produce the documents which the Minister contended were protected by s 503A, to the AAT for inspection by the Deputy President for the purpose of his deciding whether they were ‘exempt documents’ within s 37 of the AAT Act.

161               The Deputy President heard the parties’ submissions, and by reference to NAAO and Merkel J’s decision in Evans, concluded that the Notice was not a valid exercise of the Minister’s power, and that the possibility of severance under s 46(1)(b) of the AI Act did not save the Notice in its application to either the MPS or Interpol Canberra.  The ninth and final paragraph of the AAT’s reasons was:

‘In conclusion, the Tribunal’s decision is that s 503A(1) does not protect either documents supplied by the Ministry of Public Security of the People’s Republic of China or Interpol Canberra from disclosure, because they are not “gazetted agencies” for the purposes of s 503A(9) of the Act.’

162               The AAT’s reasons were delivered ex tempore.  After delivery of them, there was lengthy discussion between the Deputy President and counsel for the parties, during which many things were said as to the course which should be followed.  Counsel for the Minister indicted that the Minister would appeal, and applied for an adjournment ‘to enable that to be done’.  Senior counsel for Mr Wong opposed the application for adjournment and asked that cross-examination proceed.  Counsel for the Minister said that the only appropriate direction or order for the Deputy President to make was ‘some form of stay of the ruling … pending the further determination of the application’.  Senior counsel for Mr Wong said that a stay would be beside the point because the AAT had not yet given a direction requiring the Minister to produce documents to the AAT.  The matter remained unresolved when, on the Minister’s application, the AAT adjourned the proceeding to 7 October 2003 for a directions hearing by telephone, and to 14 and 15 October 2003 for further hearing.

163               In Director-General of Social Services v Chaney (1980) 31 ALR 571 a Full Court held by majority (Deane J and Fisher J, Northrop J dissenting) that an ‘appeal’ from a preliminary ruling and an interim order that the AAT had made was incompetent.  The preliminary ruling was one that the AAT had jurisdiction to hear the subject application for review.  The interim order was one suspending the operation of a direction of the Director-General.  Deane J (with whose reasons on the point Fisher J agreed) said (at 593):

‘The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.  Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act.  The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent “decisions” may properly be given.’  (my emphasis)

A Full Court approved of this passage in Alcoa of Australia Ltd v Swiss Aluminium Australia (1986) 64 ALR 317 (at 318).  In the present case, the Deputy President’s ruling was not ‘the effective decision or determination of the application for review’ which was before the AAT.

164               The Minister submits that the AAT proceeding can properly be divided into two or more separate parts in respect of which independent ‘decisions’ may properly be given, and, apparently, that one of those parts is a part relating to Attachments C1–10.

165               I do not agree.

166               The AAT proceeding related to more documents than Attachments C1–10 and to more forms of exemption than one based on s 503A(9).

167               Even as to Attachments C1–10:

·        the AAT had a discretion whether to order production to itself under s 64 of the FOI Act and as to any final order to be made in relation to those documents; and

·        it would remain for the AAT to consider the effect of the (defective) notice published in the Gazette on 13 August 2003, the day before it delivered its decision.

168               I will dismiss the application in the AAT appeal as incompetent.

169               In the alternative to his submission that the AAT appeal is not incompetent, in his written submissions the Minister seeks leave to amend to apply under s 39B of the Judiciary Act.  The application is opposed.

170               I refuse the application.  The AAT has not committed any jurisdictional error, and, on the evidence, is not about to do so.  My decision in N 298/03 is favourable to Mr Wong.  If the hearing is resumed before the AAT, the Deputy President will no doubt take into account my reasons for that decision and any other considerations which may be relevant at the time.

conclusion

171               The parties have agreed that they have been heard on the question whether, if orders nisi were to be made, they should be made absolute: see [5] and [6] above, and O 51A r 5(1)(a) of the Federal Court Rules.  Accordingly, in N 298/03, being satisfied that orders absolute should be made, I will proceed directly to make orders absolute in that proceeding with costs.

172               In N297/03, in which Mr Wong has failed, full argument has also been heard as on a final hearing.  The application was arguable.  The appropriate course is to make orders nisi and to discharge them immediately with costs.  The parties agree that this procedure is appropriate.

173               I take the view that the purported application pursuant to s 39B of the Judiciary Act in N 297/03, and the purported amended application pursuant to s 39B of the Judiciary Act in    N 298/03, were both intended, not to commence separate proceedings, but to provide a convenient means of stating the amended grounds relied on in the proceedings remitted by the High Court.  In each of N 297/03 and N 298/03, I will order that the proceeding be ‘otherwise dismissed’ in order to make clear that if the Court’s jurisdiction under s 39B should be thought to have been invoked, nothing survives the making of the orders referred to in [171] and [172] above.

174               The AAT appeal will be dismissed with costs.

Associate:

Dated:                          6 February 2004

In each of proceedings N 297 of 2003 and N 298 of 2003:

In proceeding N 1308 of 2003: