FEDERAL COURT OF AUSTRALIA

Hicks v Nixon [2004] FCA 290

MIGRATION – special category visa – refusal by delegate – prior cancellation of special category visa previously held to be in jurisdictional error – appeal pending from that decision – applicant departed Australia pending hearing of appeal – applicant attempted to re-enter Australia – delegate refused application for special category visa to permit re-entry – whether applicant entitled to interlocutory orders restraining respondents from acting on the decision of delegate pending outcome of appeal – whether original visa ceased to have effect on applicant’s departure from Australia

PRACTICE AND PROCEDURE – discovery – whether applicant entitled to particular discovery in various categories – no such entitlement – no entitlement to orders for discovery in respect of protected information

Acts Interpretation Act 1901 (Cth) s 9

Commonwealth of Australia Constitution Act s 75(5)

Migration Act 1958 (Cth) ss 14, 15, 32, 42(1), 42(2A)(a), 79, 82(8), 189, 196, 474, 501D, 501G, 501(1), 501(2), 501(6), 501(6)(b), 503A, 503A(9), 503B(2), 503D, 503D(2)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No 114 of 1998)

Migration Legislation Amendment (Protected Information) Act 2003 (No 75 of 2003) Sch 1 cl 8, Sch 1 cl 8(1)(c)

Migration Regulations 1994 Sch 1 cl 1219, Sch 2 Subclass 444, reg 5.15A

Calvin v Carr [1980] AC 574 cited

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

Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242 cited

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55 applied

Lesi v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 420 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 cited

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 applied

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

Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 cited

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited

Ruddock v Taylor [2003] NSWCA 262 cited

WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 cited

STEPHEN EDWARD HICKS v NEVILLE NIXON and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W177 of 2003

RD NICHOLSON J

22 MARCH 2004

PERTH

THE COURT ORDERS THAT:

1.                  The applicant’s application for orders in terms of pars 1 and 2 of his notice of motion dated 11 September 2003 be refused.

2.                  In respect of the applicant’s application in terms of par 3 of that notice of motion:

(a)        discovery be ordered in respect of documents including tapes which record the proceedings leading to the decision made by the first respondent on 6 August 2003 and whether such proceedings were held on 5 or 6 August 2003;

(b)       the application for documents constituting or containing protected information and referred to in subpars 3(d) and 3(e) be refused so far as it relates to protected information but be allowed so far as such documents or portions of them are not protected information.

(c)        the application in terms of the remaining paragraphs be refused.

3.                  The applicant pay the respondent’s costs of the notice of motion. 

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

REASONS FOR JUDGMENT

1                     The applicant brings an application claiming orders in the nature of certiorari to quash a decision of the first respondent made on 6 August 2003 as delegate of the second respondent purporting to refuse the grant to the applicant of a Special Category (Temporary) (Class TY) subclass 444 Special Category Visa.  Orders in the nature of prohibition and mandamus are also sought as well as injunctive relief. 

2                     The applicant also brings a notice of motion seeking interlocutory orders that each of the respondents be restrained from acting on the decision of the first respondent made on 6 August 2003.  The orders so sought are in the same terms as the interlocutory orders referred to in the application.

3                     The notice of motion also seeks orders addressing issues of discovery.  These include questions relating to prohibited information.

principal relevant statutory provisions

4                     Special category visas are addressed in s 32 of the Act which reads:

‘32

(1)       There is a class of temporary visas to be known as special category visas.

(2)       A criterion for a special category visa is that the Minister is satisfied the applicant is:

            (a)        a non-citizen:

(i)                 who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and

(ii)               is neither a behaviour concern non-citizen nor a health concern non-citizen; or

(b)               a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

(c)               a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.’

The descriptions ‘behaviour concern non-citizen’ and ‘health concern non-citizen’ are defined in s 5 of the Act but the content of those definitions need not concern us here. 

5                     The legal foundation for the visa provided for in s 32 is also addressed in reg 5.15A and in Sch 1, Pt 2 cl 1219 and Sch 2, Subclass 444 of the Migration Regulations 1994.  These provisions read:

‘5.15ACertain New Zealand citizens

            For the purposes of paragraph 32(2)(c) of the Act, it is declared that the class of persons each of whom:

(a)         is a New Zealand citizen who holds, and has shown to an officer, a New Zealand passport that is in force; and

(b)         is not a health concern non-citizen; and

(c)          is a behaviour concern non-citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia;

is a class of person for whom a visa of a class other than Special Category (Temporary) (Class TY) would be inappropriate.’

Schedule 1, cl 1219:

‘1219   Special Category (Temporary) (Class TY)

            (1)        Form:  15

            (2)        Visa application charge:         Nil

            (3)        Other:

(a)               Application must be made:

(i)                 in Australia either in immigration clearance or after clearance; or

(ii)               if the applicant is to travel to Australia on a pre-cleared flight – outside Australia in immigration clearance.

(b)               The applicant must give the clearance officer a New Zealand passport that is in force.

(c)                Applicant is not the holder of a permanent visa.

            (4)        Subclasses:

                        444 (Special Category)’

evidence

6                     The applicant’s case relies on affidavits sworn by his solicitor on 14 August 2003, 11 September 2003, 25 November 2003 and by the applicant on 30 November 2003.  I have marked those affidavits exhibits A, B, C and D.  The respondents’ case brings the affidavit of Ms Ling, sworn on 8 October 2003.  I have marked that as exhibit 1.

chronology

7                     The applicant, a New Zealand citizen, first entered Australia on 21 July 1984.  He departed Australia on five occasions previously, the date of his most recent re-entry into Australia being 27 February 1994. 

8                     In February 2000 the applicant was convicted of offences relating to assault of police.  He was given a sentence of 10 months imprisonment suspended for 2 years. 

9                     On 31 January 2001 the applicant was convicted of resisting arrest and he was sentenced to an effective term of imprisonment of 10 months.  This included an order that he serve concurrently the term of 10 months previously given but suspended. 

10                  On 26 November 2002 the second respondent decided that the applicant did not pass the character test within s 501(2) of the Act and cancelled the applicant’s visa.  The applicant then held a ‘TY-444’ visa the authority for which resides in s 32 of the Act and in the previously mentioned regulations.

11                  As a consequence of the cancellation of his visa, the applicant was placed in migration detention. 

12                  On 30 December 2002 the applicant sought constitutional writs in relation to the second respondent’s decision of 26 November 2002.  The applicant’s application proceeded under the designation of W356 of 2002. 

13                  On 10 January 2003 the solicitor for the applicant sought an undertaking from the second respondent not to prevent or obstruct the applicant’s re-entry to Australia in the event that he departed Australia.  By letter dated 14 January 2003 from the Australian Government Solicitor on behalf of the second respondent it was stated that the applicant was free to depart Australia whenever he wished and to have his application dealt with by the Federal Court while he is overseas but that the second respondent was ‘not prepared nor in a position to provided him with any of the undertakings sought’. 

14                  On 19 January 2003 the applicant and his wife (an Australian citizen) voluntarily departed Australia to avoid the indefinite migration detention of the applicant and to await the outcome of the proceedings in the Federal Court. 

15                  On 21 July 2003 Justice French gave judgment in application W356 of 2002 in favour of the applicant.  His Honour ordered that certiorari issue to quash the second respondent’s decision made on 26 November 2002 to cancel the applicant’s visa and that the respondent be prohibited from acting upon the decision. 

16                  On 23 July 2003 the solicitors for the applicant wrote to the Department of Immigration & Multicultural & Indigenous Affairs addressing questions to the same end as those raised on 10 January 2003 and was advised that the matter of the applicant’s re-entry into Australia was an issue for consideration by the relevant delegate of the second respondent if and when the applicant decided to apply for re-entry into Australia. 

17                  On 30 July 2003 the second respondent appealed against the decision of French J.  The proceeding continued under the designation of W165 of 2003.  That proceeding was heard by the Full Court on 20 February 2004.  The judgement of the Full Court (Hill, Carr and Hely JJ) stands reserved.

18                  On 6 August 2003 the applicant and his wife attempted to board an aeroplane in New Zealand bound for Perth.  The applicant’s wife was allowed to proceed but the applicant was not. 

19                  The applicant was subsequently permitted to board an Air New Zealand aircraft bound for Sydney where he arrived on the evening of 6 August 2003. 

20                  After the applicant spoke with the first respondent on arrival and was interviewed by him, the first respondent purported to make the decision which is the subject of this proceeding.  That decision was one of refusal of the application by the applicant for a TY-444 visa.  The ground of the refusal was that the applicant did not pass the character test because he was associated with a person, group or organisation involved in criminal conduct, namely, by his own admission, an outlaw motorcycle group known as the ‘Rebels’. 

21                  On the morning of 7 August 2003 the applicant departed for New Zealand. 

22                  On 14 August 2003 this proceeding was commenced. 

23                  On 15 September 2003 by the notice of motion previously referred to, the applicant sought the interlocutory orders now under consideration and to the same effect as those sought in the application. 

interlocutory relief

24                  The case for the applicant proceeds through the following series of propositions:  (1) When the second respondent cancelled the applicant’s visa on 26 November 2002 in purported exercise of the powers in s 501(2) of the Act, the applicant ceased to be the holder of a visa.  (2) The consequence was that the applicant became an unlawful non-citizen and was liable to be detained and was detained:  ss 14, 15, 189 and 196 of the Act.  (3) When the applicant left Australia on 19 January 2003 he did not hold a visa.  This was because the decision of the second respondent made on 26 November 2002 cancelling the visa remained lawful and effective although liable to be set aside.  (4) When French J made orders on 21 July 2003 quashing the second respondent’s decision made on 26 November 2002 purporting to cancel the applicant’s visa the result was that the second respondent’s decision to that effect then became a nullity.  (5) Therefore, it is said, the applicant was restored to the position in which he was before the decision of the second respondent on 26 November 2002, namely, that he held a visa.  (6) Next it is submitted that when the aeroplane carrying the applicant towards Australia on 6 August 2003 entered the migration zone it came under the jurisdiction of this Court and of the Act, so that the orders of French J took effect and the applicant was to be regarded as holding a visa permitting him to remain in Australia, the emphasis being on ‘remain’: see s 5 of the Act and the definition of ‘enter Australia’ and ‘migration zone’.  (7) Therefore, the first respondent proceeded on a completely erroneous understanding of the situation, namely, that the issue was not whether the applicant was entitled to a grant but rather that it was required to be recognised that he held a visa entitling him to remain in Australia.  (8) Therefore, the respondents should be restrained from acting on the decision of the first respondent made on 6 August 2003 refusing the visa.  Additionally, they should be enjoined from doing so because the balance of convenience favoured the applicant. 

25                  Submissions for the respondents dispute these propositions.  Such submissions commence with reference to s 42(1) of the Act which provides that subject to certain exceptions, ‘a non-citizen must not travel to Australia without a visa that is in effect’.  One exception, provided for in s 42(2A)(a), is that subs (1) does not apply to a non-citizen in relation to travel to Australia ‘if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force’.  Attention is also directed to the fact that the special category visa is one which permits the holder ‘to remain’ in Australia:  see Sch 2 cl 444.511.

26                  The principal focus of the submissions for the respondents, however, is dependent upon the provisions of s 82(8) of the Act which provides that:

‘A visa to remain in, but not re-enter, Australia that is granted to a
non-citizen in Australia ceases to be in effect if the holder leaves Australia’. 

The case for the respondents is that the position at law was not that the decision of the second respondent made on 26 November 2002 remained lawful and effective, although liable to be set aside, until in fact set aside by French J on 21 July 2003.  Rather, it is said, that decision, being made beyond jurisdiction, never was a decision at all.  Consequently, when the applicant left Australia on 19 January 2003 he was the holder of a visa coming within the terms of s 82(8) so that such visa then ceased to be in effect. 

27                  The correctness or otherwise of each of these submissions depends upon characterisation of the decision of the second respondent on 26 November 2002.  For the applicant, reliance is placed on authorities asserting that the act of the Minister cancelling the visa remained valid and operative until set aside:  see for example Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242 at 277; Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 applying Forbes and Calvin v Carr [1980] AC 574.  For the respondents, reliance is placed on the recent statement of the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

28                  The issue in Bhardwaj was whether the Immigration Review Tribunal established under Pt 6 of the Act had power to make a second decision in circumstances where it had affirmed a decision under review in absence of knowledge that the applicant was unable to attend the scheduled hearing date and was seeking a later hearing date.  The High Court held that the Immigration Review Tribunal had power to make the second decision. 

29                  As the respondents would have it, a proper understanding of the reasoning in Bhardwaj and of the ratio of the majority establishes the proposition that jurisdictional error on the part of a decision-maker causes an administrative decision to be of no legal effect.  That ratio is constructed as follows.  First, reliance is placed on the reasoning of Gaudron and Gummow JJ reflected in the following passages of their reasoning.  At [46] they said:

‘In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as “void”, “voidable”, “invalid”, “vitiated” or, even, as “nullities”.  To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision.  And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.’

That is followed by the passage appearing at [51]:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.  A decision that involves jurisdictional error is a decision that lacks legal foundation is properly regarded, in law, as no decision at all (See Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, where Jordan CJ stated that constructive failure to exercise jurisdiction left “the jurisdiction in law constructively unexercised”.  See also R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243, per Rich, Dixon and McTiernan JJ; Posner v Collector for Inter-State Destitute Persons (Vict) (1946) 74 CLR 461, per Dixon J; Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 483, per Gibbs J; Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 349-350, per Wilson, Deane and Gaudron JJ; Craig v South Australia (1995) 184 CLR 163 at 179; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 227 [82], per Kirby J; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 453 [189], per Gummow and Hayne JJ).  Further, there is a certain illogicality in the notion that although a decision involves jurisdictional error, the law requires that until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.  A fortiori in a case in which the decision in question exceeds constitutional or infringes a constitutional prohibition.’

30                  Their reasoning is further reflected in the following passage at [53]:

‘In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct.  As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.  Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.  Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.  And that is so, regardless of s 33(1) of the Acts Interpretation Act.’

31                  Their Honours Gaudron and Gummow JJ nevertheless went on to conclude that there was no provision of the Act which, in terms, purported to give any legal effect to decisions of the Immigration Review Tribunal involving jurisdictional error and they concluded that the Act could not be construed as having that effect by implication. 

32                  The respondents’ contentions then rely upon the agreement by McHugh J in the reasons of Gaudron and Gummow JJ.  Additionally, reference is made to the reasoning of Hayne J which is said to provide further agreement to the reasoning of Gaudron and Gummow JJ. 

33                  The reasoning in Bhardwaj has recently been considered by a Full Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55.  Under the heading ‘The nullity question’ their Honours Gray and Downes JJ examined the reasoning of the members of the High Court in Bhardwaj at [30]-[39].  At [40] their Honours said:

‘This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function.  All six judges who formed the majority did so on that basis.  Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect.  Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition.  Kirby J in his dissenting judgment clearly did not.  Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect.  They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another.  Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party.  Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations.  The facts of Bhardwaj did not call for pronouncement upon these issues.  The IRT had itself chosen to ignore its previous decision.  The validity of that decision was an issue in the very proceeding with which the High Court was dealing.’

After referring to the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 their Honours concluded at [42]:

‘In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever.  All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.  As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 388-9; 153 ALR 490 at 515:

            An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.’

A similar view was expressed by Kenny J at [64] where she said:

‘For reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117 (Bhardwaj) is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision.  I reject the appellant’s submission in so far as they are to the contrary effect.’

34                  Not only must I accept the reasoning of the Full Court on the importance of the statutory content to the determination of the application of the principle of nullity found to be applicable in Bhardwaj but I consider that it follows clearly from the reasoning of all the members of the Court.  It is emphasised in the reasoning of Gleeson CJ, particularly at [8] and [12].  It was the approach taken by Gaudron and Gummow JJ even in the light of their reasoning relied upon for the respondent:  see [54].  This was agreed with by McHugh J.  Hayne J at [154] emphasised that the critical steps in the reasoning must begin and end in the statutory provisions which are the source of the power that has been or purported to have been exercised.  Callinan J asked whether the Immigration Review Tribunal had done what must be done (that is, reviewing the Minister’s decision) and whether it properly complied with its statutorily enunciated function:  at [163]. 

35                  With the importance of the statutory environment in mind, the submissions for the applicant point to aspects of the statutory provisions which, it is said, support the ‘deferred nullity theory’ upon which the applicant’s case seeks to rely. 

36                  Firstly, it is said that the decision of the second respondent made on 26 November 2003 was the exercise of a power whereas Bhardwaj was concerned with a duty falling on a tribunal.  Secondly, it is submitted that because the Act provides for the detention of an unlawful non-citizen, it cannot be the case that the second respondent’s decision was of no effect at all; it was the Minister’s decision to cancel the visa which gave rise to the liability of the applicant to detention.  Thirdly, it is said that at the time the applicant left Australia on 19 January 2003, the privative clause provision in s 474 was understood to preclude a challenge to a decision cancelling a visa on the ground of jurisdictional error.  However, on 4 February 2003, when the High Court handed the decision in Plaintiff S157, it became apparent that s 474 yielded to s 75(5) of the Constitution. 

37                  For the respondents it is submitted that the distinction between the decision of the Tribunal and the decision of the second respondent is a distinction without implications.  As to the possibility of the applicant having been wrongly detained, it is said that the Full Court in New South Wales in Ruddock v Taylor [2003] NSWCA 262 has recognised a liability of ministers for the tort of false imprisonment.  It is also submitted that in relation to the effect of the privative clause having been misunderstood up until 4 February 2003, nothing relevant can be made of it. 

38                  Concerning the detention, the submissions for the respondents point to the fact that s 189 does not make detention dependent upon whether a person is an unlawful non-citizen, rather, it is dependent upon whether ‘an officer knows or reasonable suspects that a person in the migration zone … is an unlawful non-citizen’.  Consequently, the duty to detain arises not from the fact of someone being an unlawful non-citizen but from the existence of the knowledge or reasonable suspicion. 

39                  I do not consider that the existence of the provisions for detention arising from ss 14, 15, 189 and 196 of the Act in particular, have the consequence of producing the result by way of implication of giving legal effect to a decision of the second respondent involving jurisdictional error subsequently detected.  None of the provisions or factors referred to in the above contentions for the applicant lead me to that conclusion. 

40                  It is helpful in the circumstances to go to the reasoning of Hayne J, particularly at [151], [152] and [153] in Bhardwaj.  There he relies upon the displacement of the presumption that an administrative act or decision is valid in circumstances where there is a challenge to its legal effect: at [151]-[152].  He described this as a recognition in circumstances where a court would have set a decision aside that the decision in question is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside:  at [152].  He concluded (at [153]) that ‘once it is recognised that a court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences’ (emphasis in original). 

41                  In the circumstances at issue here it was on 26 November 2002 that the second respondent exercised his powers and performed his duties to review the decision in relation to the cancellation of the applicant’s then visa.  That date preceded the date of the applicant’s departure from Australia on 19 January 2003.  When it was subsequently found by French J on 21 July 2003 that the decision of the second respondent in that regard was in jurisdictional error, it followed that that the decision could be seen to have no relevant legal consequences. 

42                  In my view it therefore follows that there is nothing in the Act pursuant to which the second respondent’s purported decision on 26 November 2002 would have been given effect because it was made in jurisdictional error. 

43                  It follows also that I accept the respondents’ submissions in relation to the application of the reasoning in Bhardwaj understood in the terms propounded by Gray and Downes JJ at [42] of their reasons in Jadwan and as accepted by Kenny J in the same case at [64] of the reasons. 

44                  The result is that I consider that when the applicant left Australia on 19 January 2003 he was a visa holder and that s 82(8) applied so as to cause that visa to cease to be of effect upon his departure.  Therefore, the interlocutory orders sought should be refused.  It is therefore not necessary to proceed to consider the balance of convenience.  In any case, my view would itself weigh adversely in that balance. 

45                  I do not consider that there is anything arising from the decision of the Full Court in Lesi v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 420 which inhibits me from reaching this conclusion.  That was a decision dealing with review under the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) and the effect of the provisions of the AAT Act dealing with review.  Their Honours there acknowledge that the setting aside by the tribunal under s 43 of the AAT Act of a deportation order made under s 200 of the Act did not mean that the initial decision was invalid:  at 428, at [30].  Furthermore, the AAT Act provides in s 41(1) that, subject to the section, the making of an application to the tribunal for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

46                  The reasoning of the Full Court in Lesi also considered the effect of s 82 of the Act.  At 433, at [53] the Full Court stated:

‘It is apparent that the Act has carefully addressed when and how a visa may be cancelled, and the consequences of its cancellation.  The fact of a visa ceasing to be in effect in certain circumstances is something which the Act has dealt with differently.  The expressions “cease to be in effect” or “be in effect” are not defined in the Act.  They should be taken to have their ordinary English meaning.  There is no indication in the Act that they have some different or more refined meaning.  Consequently, we consider the expression “cease to be effect” simply means cease to be operative to provide the entitlements which the visa would otherwise provide.  The visa itself is not to be taken to have been cancelled under s 82(4) simply because the provision does not say so.’

47                  The effect of this is to confirm that if the visa which the applicant held at the time of his departure from Australia, if not validly cancelled, ceased to be in effect on his leaving Australia.  In its terms, the visa was not permission for re-entry:  see s 79 of the Act.

48                  Nothing, therefore, arises from Lesi which could result in the grant of interlocutory relief to the applicant. 

49                  There is no reason to delay these reasons to await the decision of the Full Court on appeal from the decision of French J.  In the event the appeal is dismissed, the applicant would have been incontestably the holder of a visa on his departure from Australia on 19 January 2003 so that s 82(8) of the Act would have operated to occasion the visa to cease to have effect.  In the event the appeal is allowed, the position will be addressed in these reasons. 

discovery

50                  The orders sought in relation to discovery are framed so as to seek general discovery and particular discovery.  However, at the hearing counsel for the applicant abandoned the claim for general discovery.  General discovery was, in any event, ordered on 30 September 2003.

51                  The request for particular discovery is said to arise from the terms of the affidavit sworn by Ms Ling which particularises the following categories:

(a)        ‘all entries concerning the Applicant in the Migration Alert List (if any);’

            The foundation for this request is said to be the statement in an annexure to the affidavit of Ms Ling at p 17 referring to ‘MAL listing 519452’ giving an indication that the applicant’s entry to Australia would be assessed according to s 501(6)(b). 

(b)        ‘any instructions given by or on behalf of the Secondnamed Respondent concerning the Applicant at any time:

(i)                  before 21 July 2003;

(ii)                on or after 21 July 2003;’

The first foundation for this request is a statement in par 9 of the affidavit of the applicant sworn on 30 November 2003 in which he stated he was told by officers of Air New Zealand, in New Zealand, that ‘Canberra’ had told the airline that the applicant would not be allowed to enter Australia.  This is said to be corroborated by references at pp 16 – 17 of Ms Ling’s affidavit in exchanges between duty officers on entry operations concerning the fact that the applicant was travelling to Sydney.  It is said that these may have come about because the applicant was being sought for or watched pursuant to some instruction. 

(c)        This was not pursued in the applicant’s case.

(d)        This is dealt with below under the heading ‘Protected Information’.

(e)        ‘the Public record (Court Transcripts dated 22 February 2001) … which the Firstnamed Respondent referred to on page 2 of the decision record dated 6 August 2003;’

            This aspect is sought solely in relation to the public record relating to the sentencing of the applicant.  This is said to arise from a reference in the record of the first respondent’s decision to the ‘Public record’ providing evidence that he was a member of the Rebel Outlaw Motorcycle Gang and that in 2001 arguments were put forward for his defence before a court that he was a member of the Rebel gang.  It is said that Ms Ling’s affidavit annexes a transcript of the proceedings in the Court of Petty Sessions of Western Australia at Karratha on 22 February 2001.  However, nowhere is it stated by or on behalf of the first respondent that the transcript provided in the affidavit of Ms Ling is the transcript in its entirety and whether he had regard to anything else in the nature of a public record. 

(f)         ‘documents which record any conversation between the Applicant and any officer of the Secondnamed Respondent (including the Firstnamed Respondent) that occurred on 5 August 2003 or 6 August 2003, whether in Australia or New Zealand, as are in the possession of the Respondents;’

(g)        ‘any record of any communication between the Secondnamed Respondent or any officer on his behalf and any airline prepared on or after 21 July 2003 concerning the carriage of the Applicant from a place outside Australia to Australia;’

(h)        ‘all files concerning the Applicant in the possession of the Secondnamed Respondent.’

(i)         Deleted portions at p 73 of Ms Ling’s affidavit, being protected information (see par 8 of her affidavit).

52                  For the respondents it is submitted that the ambit of discovery is determined by the nature of the particular decision under challenge.  Here the decision was one involving the exercise of powers in a delegate arising pursuant to s 501(1) and s 501(6)(b) of the Act.  The grounds on which it is sought to challenge the decision of the first respondent raise only in one respect any issue bordering on mala fides by the first respondent.  That is ground (n) which reads ‘The decision was made for an improper purpose being as part of an orchestrated campaign to deny to the applicant the benefit of the judgment in his favour by Justice French in proceeding W356 of 2002 on 21 July 2003’. 

53                  The issue of discovery should be approached on the basis of O 15 r 15 of the Federal Court Rules that an order will not be made unless the Court is satisfied that the order is necessary.  The need will be determined by reference to the proceedings as pleaded.

54                  It is necessary for the issue of discovery to be considered in the light of two particular factors.  The first is the requirement in s 501G that the Minister give the applicant a written notice which sets out the reasons (other than non-discloseable information) for the decision.  That is, the decision-maker is required to set out in the reasons for decision the material on which the decision is based.  There is no claim in the application for review, save for the generalised allegation in par (n), that the decision was based on anything else, that it was (for example) made under dictation or that there exists any other ground which would make relevant material other than that referred to in the decision.  The second significant factor is the grounds of the application.  There are 13 grounds (pars (a) – (n)) asserting jurisdictional error in the decision of the first respondent.  Several of the paragraphs contain multiple allegations.  Some raise questions of law and no factual issues:  for example, pars (a), (d), (f), (g), (i), (k) and (m).  Other grounds raise factual issues:  for example, pars (b), (c), (e) and (l). 

55                  It is important to have in mind that the request is not limited to documents which are related to the allegations actually made by the applicant.  More significantly it is not limited to the documents known to the actual decision-maker. 

56                  Furthermore, the Court should not order discovery of documents which go outside the issues raised in the particular proceedings.  It is not a sufficient basis for the making of an order that there is a generalised allegation such as that in par (n):  see Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327; WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 567.

57                  Approaching the request for discovery with these principles in mind, I consider they should be resolved as follows:

(a)               This request arises from a document of officers other than the first respondent.  The record of the decision of the first respondent makes no reference to the Migration Alert List.  Discovery should therefore not be ordered. 

(b)               The generalised allegation in par (n) does not support an order for discovery in this respect. 

(e)        So far as this relates to the Public record, it is apparent from reference to the copy of the transcript exhibited to the affidavit of Ms Ling that the transcript provided is complete.  There is no scope for discovery. 

(f)         It is accepted for the respondents that documents, including tapes which record the proceedings involving the decision made by the first respondent ought to be part of the record before the Court so far as it relates to the actual decision that was made.  Discovery should be made in that respect. 

(g)        There is no proper foundation to order discovery in these terms. 

(h)        There is no foundation for making an order in these terms in the absence of anything to suggest that they were matters before the first respondent when he made his decision.

(i)         This refers to protected information. 

protected information

58                  Orders for discovery are sought in respect of two items of protected information.  The first is that described in par 3(d) of the notice of motion which reads:

‘(d)      documents recording any information which the First Respondent consulted on 6 August 2003, in the possession of the Respondents or either of them which is, or is thought to be, “protected information” concerning the:

(i)                 Applicant;

(ii)               the Rebels Outlaw Motorcycle Gang;

for the purposes of s 503A of the Migration Act;’

59                  The second is the second limb of par 3(e) which refers to ‘“Criminal intelligence from law enforcement agencies on the profile of the rebels outlaw motorcycle gang” which the Firstnamed Respondent referred to on page 2 of the decision record dated 6 August 2003;’.  The protected information to which the applicant has been denied inspection is that which appears as a blacked out portion of pp 70, 71 and 72 (repeated in the typed version at pp 73 – 74) and par 3 of a letter from the Australian Government Solicitor dated 17 November 2003 annexed to the affidavit of Ms Ling. 

The provisions concerning protected information are found in s 503A of the Act.  They were introduced on 1 June 1999 by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No 114 of 1998).  The relevant provisions of s 503A are:

‘503A

(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 the 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.

(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)       …

(4)       …

(5)       …

(6)       …

(7)       …

(8)       …

(9)       …

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

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

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

60                  For the applicant it is submitted that the first respondent erred in applying s 503A of the Act in denying the applicant natural justice and creating a jurisdictional error on the grounds set out in pars (i), (k), (l) and (m).  This is a reference to that portion of the decision of the first respondent and is described as ‘criminal intelligence from law enforcement agencies on the profile of the Rebels OMCG on their involvement in criminal activity’ and appears to overlap with request (d). 

61                  The decision of the first respondent is not presently under review.  Therefore, the applicant limits the submissions to ground (m) of the second amended application in that respect so far as discovery is now sought.  Ground (m) reads:

‘(m)     the decision was contrary to law because the First Respondent accepted that there were in existence on 6 August 2003 “gazetted agencies” for the purpose of s 503A of the Migration Act when this was not the case following the repeal of the definition in s 503A of the Migration Act by s 5D of the Migration Legislation Amendment (Protected Information) Act 2003 (Cth)(Act No. 57 of 2003) on 16 July 2003;’

62                  The relevant chronology is said to be as follows.  On 31 May 1999 the second respondent signed a gazette notice specifying ‘gazetted agencies’ for the purposes of s 503A(9) of the Act.  On 16 July 2003 the definition of ‘gazetted agency’ in that subsection was repealed and a new definition substituted by the Migration Legislation Amendment (Protected Information) Act 2003 (No 75 of 2003).  On 6 August 2003 the applicant entered Australia and the purported decision concerning him was made.  On 13 August 2003 Gazette GN32 was published.  It contained at p 2435 a notice dated 4 August 2003 purporting to specify certain ‘gazetted agencies’ for the new definition introduced on 15 July 2003.  By par 4 of the notice it was stated that ‘this instrument comes into effect upon publication’.  On 3 September 2003 Gazette notice GN35 contained a further notice specifying ‘gazetted agencies’ for s 503A(9) of the Act.  The notice was dated 14 August 2003 and by cl 4 it was stated ‘this instrument comes into effect upon publication’.  In terms it revoked the notice signed on 4 August 2003. 

63                  Against this chronology it is submitted for the applicant that on 6 August 2003 there was no legally effective definition of ‘gazetted agencies’.  The position was that while the Gazette notice signed on 31 May 1999 had not been revoked it had no force because the provision which gave it the force of law had itself been repealed.  It is submitted that no reliance can be placed on s 9 of the Acts Interpretation Act 1901 (Cth) as there was not a gap between the two statutory provisions but rather a gap between the operation of the notice in the Gazette GN32 and the notice in Gazette GN35.  It is said further that the change in definition was substantial and required a Gazette which distinguished between Australian and foreign law enforcement bodies and that was not done by the Gazette notice of 31 May 1999.  Therefore, it is said that the respondents cannot rely on the definition of ‘gazetted agency’ as the basis for refusing inspection of relevant documents because no such notice was operational on the material date of 6 August 2003. 

64                  The applicant further submits that the identity of the relevant agency was disclosed in the proceedings before French J.  Therefore, it is said, that has not been protected information.  In any event, it is said that the applicant should be able now to examine those parts of the document which contain this information:  NAAO v Secretary, Department of Immigration & Multicultural Affairs (2002) 117 FCR 401 at [25].

65                  Further oral and written submissions for the applicant addressed the relevance of the decision of the Full Court in Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 320 delivered on 1 December 2003.  The issue before the Full Court was whether the West Australian Police Service was a ‘gazetted agency’ for the purpose of the Gazette issued on 31 May 1999 to implement the definition of ‘gazetted agency’ in s 503A(9) of the Act as enforced between 1 June 1999 and 16 June 2003.  That definition was:

‘Gazetted Agency means a body, agency or organisation that is:

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

(b)       specified in a notice published by the Minister in the gazette.’

It was conceded before the primary judge in Evans that the protected information came from the West Australian Police Service, that concession being said to be in line with the Full Court decision in NAAO.  That statement of law was reversed from 16 July 2003 by s 503B(2) which was introduced into the Act by the Migration Legislation Amendment (Protected Information) Act 2003.

66                  It is submitted for the applicant that the effect of the decision of the Full Court in Evans was to uphold the conclusions of the primary judge that the original 1999 Gazette was defective because it failed to specify any agency and that the notice could be read down to refer at least to the reference to the gazetted agency.  Reliance is placed for the applicant on the observations of Gray J in the Full Court to the effect that provision such as s 503A should be given a strict construction:  see at [13]. 

67                  For the applicant it is additionally contended that the first respondent did not inform the applicant of how the information in the ‘protected information’ established that the second respondent had a reasonable suspicion that the Rebels Outlaw Motorcycle Group ‘has been or is involved in criminal conduct’ (s 501(6)(b)) and how this information, and any information specific to the applicant, justified the making of the discretionary decision under s 501(2) of the Act. 

68                  For these reasons the applicant seeks discovery of the documents containing the protected information. 

69                  To address these submissions it is necessary to turn to further provisions of the Act.  Section 503D reads:

‘503D

(1)               If section 503A or 503B applies to information communicated by a gazetted agency to an authorised migration officer so that the information cannot be divulged or communicated except as provided for in sections 503A, 503B and 503C, then sections 503A, 503B and 503C apply to similarly protect the agency’s details from being divulged or communicated as if the details were the information communicated by the agency.

(2)               A reference in subsection (1) to agency’s details is a reference to any information in relation to the gazetted agency including the agency’s name and the conditions on which the communication of information by the agency occurred.

(3)               In this section:

gazetted agency has the same meaning as in section 503A.’

The application of s 503D is dealt with in Sch 1 cl 8 of the Migration Legislation Amendment (Protected Information) Act 2003 which reads:

‘(1)      Section 503D of the Migration Act 1958 applies to:

(a)               agency details in relation to protected information if the information is given to an authorised migration officer on or after the commencement of this item; and

(b)               agency details in relation to protected information given to an authorised migration officer before the commencement of this item if:

(i)                  the details or information is the subject of a request for access under the Freedom of Information Act 1982; and

(ii)                no decision under the Freedom of Information Act 1982 in respect of the request has been made, or has been taken to be made, before the commencement of this item; and

(c)               agency details in relation to protected information given to an authorised migration officer before the commencement of this item if the details or information is the subject of a process for the production of documents that has not been completed or complied with before the commencement of this item; and

(d)               agency details in relation to protected information given to an authorised migration officer before the commencement of this item if, after the commencement of this item, the details or information becomes either:

(i)                  the subject of a request for access under the Freedom of Information Act 1982; or

(ii)                the subject of a process for the production of documents.

(2)       In this item:

            process for the production of documents includes discovery and a subpoena for production of documents.

            process information means information that is:

(a)               communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; and

(b)               relevant to the exercise of a power under section 501, 501A, 501B or 501C.’

70                  The words ‘agency’s details’ take their meaning from s 503D(2).  Furthermore, as a consequence of the provisions in cl 8(1)(c), even if the information was given to an authorised officer before the commencement of the section, s 501D would apply as a consequence of cl 8 if discovery has not been completed or complied with before the commencement of the section.  It is irrelevant whether the agency details were protected information at the time of the decision to not grant a visa to the applicant. 

71                  It is also the case that the fact that this matter falls into the transition period of the new provisions had no effect on the outcome.  While s 503A(9) was repealed and substituted, the change was only to alter the definition of a gazetted agency.  The instrument made in 1999 specifying gazetted agencies for the purposes of the Act was not repealed until 13 August 2003, when the new instrument took effect.  Accordingly, there was at all times an instrument specifying gazetted agencies.

72                  In any event, the relevant time is not the time when that information was received.  The prohibition in s 503A operates at the time when the officer is to divulge or communicate the information.  If, at that time, the information is protected information it may not be divulged.  This is consistent with the intention disclosed in the transitional provisions in regard to s 501D. 

73                  For these reasons I consider that the applicant is not entitled to any order of discovery which would give to him access to protected information.

74                  The applicant contends in the alternative that he should be entitled to discovery of so much of the documents which comprise protected information as can be discovered without revealing protected information.  In particular, the applicant seeks discovery of so much of the documents as would reveal the date, or dates, on which the so-called ‘protected information’ considered by the first respondent was communicated by the agency.  In the written submissions for the respondents it is stated that a discovery list could do no more by way of identifying a document which is protected information than to state that it is a letter, or memorandum or the like from a (not named) gazetted agency, give the date of the document, and that it is protected information.  Therefore, so far as the documents are accepted as not falling within the scope of protected information, it is appropriate that discovery be made and the orders should reflect this. 

Associate:

Dated:              22 March 2004