FEDERAL COURT OF AUSTRALIA

WAKJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1336

MIGRATION – protection visa – refusal of protection visa – exclusion from Refugees Convention – Article 1F – serious non-political crime – declaration that applicant excluded person – failure to give written reasons – insufficiency of departmental minute to Minister – provision of reasons ordered

Migration Act 1958 (Cth)

Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2003) 203 ALR 33 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 201 ALR 327 cited

WAKJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W171 OF 2003

FRENCH J

11 OCTOBER 2004

PERTH

THE COURT ORDERS THAT:

1.         The Hon. Philip Ruddock, MHR, formerly the Minister for Immigration and Multicultural and Indigenous Affairs, on or before 8 November 2004 give written reasons for his decision to refuse the applicant the grant of a protection visa made on 27 May 2003.

2.         The respondent is, by 8 November 2004, to provide written submissions and any affidavit evidence on which he or she relies to support the proposition that the documents referred to in the applicant's notice to produce filed 6 October 2004 should not be produced to the Court.

3.         The applicant to file its written submissions in reply by 22 November 2004.

4.         The question of production of the documents will be decided on or about 29 November 2004.

5.         The application to be re-listed for hearing at a date to be fixed in December 2004.

6.         Liberty to apply.

7.         Costs today reserved.

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

REASONS FOR JUDGMENT

1                     The factual and procedural background to the present application is conveniently set out in the first six paragraphs and following of the Minister's outline of submissions, which I paraphrase for convenience.

2                     The applicant says he is a Shi'a Muslim of Arabic ethnicity and a national of Iraq.  He came to Australia on 25 March 2001 by boat, without lawful authority, accompanied by his wife and three children.  He and his family made applications for protection visas on 12 April 2001.  His wife and three children were issued with temporary protection visas on 26 February 2002 and they were then released from immigration detention, and presently live in Perth.  In the meantime, the applicant was investigated for his alleged involvement in what are broadly called people smuggling offences, contrary to s 233(1)(a) of the Migration Act 1958 (Cth) (the Act).  He was charged and tried on four counts before a judge and jury in the District Court.  He was convicted of one offence on 26 March 2003.  He was acquitted of the other three:  one on a jury verdict and two on a directed verdict.

3                     For the offence for which he was committed, the applicant was sentenced by Jenkins DCJ, as she then was, in the District Court on 1 April 2003 for a period of two and a half years' imprisonment, with a direction that he be released after 15 months on entering into a recognisance of $5,000 to be of good behaviour for a further period of 15 months.  He lodged an appeal against that conviction and sentence on 10 April 2003.  On 2 April 2004, the Court of Criminal Appeal in Western Australia dismissed his appeal.

4                     On 15 April 2003, the then Minister had sent to the applicant notice of his intention to consider refusing his application for a protection visa by reason of the operation of Art 1F of the Refugees Convention.  The notice also indicated that the Minister was considering or might declare him to be an excluded person under s 502 of the Act.

5                     On 27 May 2003, after receiving and considering a Minute from officers of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), the Minister personally refused the application for a protection visa on the basis that the applicant was excluded from the protection of the Refugees Convention by the operation of Art 1F.  It was said, he did not meet the definition of a refugee in Regulation 785.221. I presume for the moment, although it is not necessary to deal with the matter right now, that this was a reference to the absence of any protection obligations on the part of Australia rather than a question of whether the applicant met the definition of ‘refugee’.  If the application of the Convention to a person is excluded by reason of Article 1F then it matters not that that person would fall within the definition of ‘refugee’.

6                     The Minister made a decision, on the same day, that, because of the seriousness of the circumstances giving rise to his decision to refuse the application, it was in the national interest that the applicant be declared an excluded person in accordance with subs 502(1) of the Act. He declared the applicant to be an excluded person.  This, without going into the statutory detail for the moment, had the effect that there was no merits review available in the Administrative Appeals Tribunal as would otherwise apply to a decision refusing a protection visa on the basis of Art 1F.

7                     In accordance with the Act, the Minister did prepare a statement to the parliament, which presumably was duly tabled, although there is no direct evidence of that before the Court at the present time.  On 10 July 2003, a letter was sent to the applicant notifying him of the Minister's decision.  The applicant was then in Hakea Prison at Canning Vale in Western Australia.  The letter said, inter alia, that:

‘After examining your case, the Minister has decided that you are excluded from the provisions of the Refugees Convention because Article 1F of the Convention applies to you.  Article 1F of the Convention states...’

The letter went on:

‘As a result, the Minister has also decided that you fail to satisfy Regulation 785.221 of the Migration Regulations, which states:

            785.221           The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.’

The letter continued:

The Minister has refused your application for a Protection Visa. 

Matters that were taken into account by the Minister included:

.           Your response to the Notice of Intention to consider refusal of your protection visa application;

.           A copy of the transcription from the Trial Judge's sentencing;

.           A copy of the decision is attached as signed by the Minister.  Sections of this decision have been omitted.  The Department is prevented from disclosing this information pursuant to Information Privacy Principle 11 of that Act;

.           Information over which the Commonwealth claims legal professional privilege, including some information contained in the decision record which has been omitted; and

.           “Personal information” within the meaning of the Privacy Act 1988.  The Department is prevented from disclosing this information pursuant to Information Privacy Principle 11 of that Act;

.           The national interest.’

It also said:

‘As part of the Minister's decision to refuse your visa application he also declared you to be an excluded person by issuing a certificate under section 502 of the Migration Act 1958 (“the Act”).  Under sections 500(1) and 500(4) of the Act, a person declared to be an excluded person under section 502 of the Act cannot make an application to a Tribunal for a review of a decision to refuse to grant that person a visa.  I have attached the text of s502 of the Act for your information.’

8                     Attached to the letter was a copy of the decision record which was, in effect, the Minute put before the Minister and bearing his endorsement of the relevant decisional options at the end of that paper.  On 6 August 2003, the applicant filed an application in this Court under s 39B of the Judiciary Act 1903 (Cth), claiming orders quashing the Minister's decision to declare him to be an excluded person and refusing him a protection visa.  He also sought an order that he be granted a protection visa.  The grounds were stated very briefly, alleging unparticularised failure to accord procedural fairness, consideration of matters that the Minister was not entitled to consider, failure to consider relevant matters and that the decision was induced or affected by fraud or actual bias.  The application seems to have been prepared with some form of assistance, but with limited awareness of the available bases for judicial review of decisions of this character. 

9                     The matter came before Lee J for directions on 26 March 2004.  In the meantime, on 15 March 2004, a migration adviser from the Catholic Migrant Centre, assisting the applicant, had sent a letter to DIMIA referring to the notification of 10 July and requesting reasons for the decision to refuse the grant of the protection visa under s 65.  The letter said:

‘As the decision is currently under consideration in the Federal Cour (sic) we would appreciate your response as soon as possible.’

This letter was tendered without objection for the purpose of this morning's proceedings. 

10                  On 26 March 2004, the applicant appeared in person but assisted by an interpreter and by Ms Le Sueur of the Catholic Migrant Centre who, according to the listing record, appeared as a friend of the Court.  Various directions were made for the preparation of a Court Book, the filing of an amended application and written submissions and the like.  There was no direction requiring that the Minister provide reasons for his decision.  There is no record that any request for such an order was made. 

11                  Pursuant to the directions, an amended application was filed on 20 August 2004 and that application claimed various forms of declaratory relief and other relief.  It did not, however, claim any relief related to the reasons for decision.  The matter came on for hearing this morning by which time a proposed further amended application had been filed.  It was filed on 5 October 2004.  It included a new claim for a writ of mandamus to direct the Minister to give reasons for his decision made on 27 May 2003 refusing to grant the applicant a protection visa.  There was also a contention in the application that the Minister failed to accord the applicant procedural fairness by not disclosing to the applicant, or providing him with an opportunity to comment on two documents referred to in the Minute, being a memorandum dated 6 May 2003 entitled ‘Investigations Into Alleged Threats by [the applicant] and His Wife’ and a copy of the Prosecution Report dated 3 April 2003.

12                  A notice to produce had been filed on 6 October seeking production from the Minister of the protection (class XA) decision record and attachments signed by himand any documents that were before himin making the decision to refuse the applicant a protection visa and to make a declaration under s 502 of the Act.  This was directed to obtaining an unexpurgated version of the Minute which, as delivered to the applicant, contained blanks relating to the  contents of the two documents which I have just mentioned and which were referred to in the proposed further amended application.

13                  The Minister did not object to the amendment of the application in terms of the proposed further amended application, but contends that an order for the provision of the reasons should be declined for discretionary reasons to which I will return shortly.

14                  Secondly, counsel for the Minister indicated that consideration is still being given to the very recent ground raised in relation to the production of the two documents, which I have referred to as the memorandum of 6 May 2003 and the prosecution report of 3 April 2003.  It may perhaps be helpful to indicate that those two documents are referred to by designation in Part C of the Minute as the following:

‘A copy of the Senior Legal Officer's Memorandum dated 6 May 2003 titled "Investigation Into Alleged Threats by [The Applicant] and His Wife..."

A copy of the Prosecution Report dated 3 April 2003, incorporating a memorandum from the Senior Assistant Director of Prosecutions to Onshore Compliance Integrity Support Branch dated 10 April 2003.’

They were, respectively, attachments A4 and A5 of the Minute submitted to the Minister.  They were not provided to the applicant and reference to their contents in the body of the copy of the Minute provided to the applicant has been blanked out.  The Minister's counsel declined to produce the documents on the basis that issues of both legal professional privilege and Privacy Act 1988 (Cth) issues were still under consideration, having regard to the recency with which those matters were raised.

15                  There are, of course, substantive grounds raised in the proposed further amended application, but it is apparent from what I have already said that the issues relating to the provision of reasons and the production of the two documents are, in a sense, threshold questions which will affect the conduct of the case, depending upon how they are determined. As I foreshadowed to counsel, an appropriate course is for me now to determine the question whether I should direct that the Minister provide reasons for the decision that was made in May 2003. That would require their provision by the Honourable Mr Ruddock, who was Minister at the time and who actually made the decision. I should also give directions leading to the determination of the issue whether or not the two documents which are attachments to the Minute should be produced by the Minister to the applicant.

16                  The latter question, I think, as I have foreshadowed, can be dealt with on the basis of submissions on the papers, together with supplementary affidavit evidence, and I am prepared, unless the parties indicate that oral argument is necessary, to deal with the matter of their production in that way.  That may include, if it is thought appropriate, inspection of the documents myself.  I will make some directions about that process at the end of these reasons.

17                  There is no dispute that the Minister was required to provide reasons for his decision to refuse to grant a protection visa.  The requirement arises out of s 66(1) of the Act, which provides:

‘(1)      When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

(2)       Notification of a decision to refuse an application for a visa must:

            (a)        if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and

            (b)        if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and

            (c)        unless subsection (3) applies to the application - give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa;...’.

Subsection (d) is not applicable in this case. 

18                  Subsection (3) provides:

‘This subsection applies to an application for a visa if:

(a)       the visa is a visa that cannot be granted while the applicant is in the migration zone; and

(b)       this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.’

19                  It is apparent from the foregoing that subs (3) does not apply in this particular case, conditions (a) and (b) being conjunctive.  The temporary protection visa for which the applicant was applying is not a visa that cannot be granted while he is in the migration zone. The Minister was required to give written reasons why the relevant criterion, which in this case was the question of the existence of protection obligations on the part of Australia owed to the applicant, was not satisfied.  As appears from subs 66(4):

‘Failure to give notification of a decision does not affect the validity of the decision.’

20                  The question that arises is the nature of the obligation to give reasons for the decision.  The content of the obligation depends upon whether or not s 25D of the Acts Interpretation Act 1901 (Cth) applies.  That applies to requirements for the provision of written reasons in the making of decisions.  That is subject to the general provisions of s 2 of the Acts Interpretation Act, namely that a contrary intention may be disclosed in a particular statutory context.  However, I am not satisfied that there is any contrary intention exposed in s 66 which would negative the application of s 25D to the requirement to give written reasons under subs 66(2)(c) of the Act.

21                  The debate between the parties, as indicated earlier, was not on the question whether there was an obligation on the part of the Minister to provide reasons for the decision but whether, firstly, the provision of the Minute complied with that obligation and, secondly, if not, whether as a matter of discretion, having regard to the delay that has occurred since 6 May and the utility of providing reasons, an order to provide reasons should be refused.  So far as the Minute is concerned, there has been discussion in a number of cases of the extent to which, and circumstances in which, a departmental Minute or Issues Paper or decisional record, as they are variously called, attached to a notification of the outcome constitutes written notification of the reasons for decision.

22                  In accordance with the general analysis I undertook in Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2003) 203 ALR 33 that a Minute endorsed with the ministerial decision may constitute reasons for decision if it indicates a unique pathway of reasoning to the particular decision that was made. Where there are two choices, to grant or to refuse a visa,  and there are only two lines of reasoning exposed in the decisional record, namely, one which would support the refusal of the visa and the other which would support the grant of the visa, it may be open to the Court to infer that the document, as a whole, sets out the reasons for the decision that was taken.

23                  The Minute relied upon in this case does not fall within that description. It is sufficient to have regard to the observations in par 49 of the document, where it is said:

‘Given the conviction under section 233 of the Migration Act, as well as the number of witness statements and the consistency in the claims made by witnesses, and the fact that the witnesses were from seven different unauthorised vessels that journeyed to Australia it is open to you to conclude that there are ‘Serious Reasons for Considering’ that [the applicant] has committed a ‘serious non-political crime outside the country of refuge prior to his admission to that country’.’ 

As is indicated in that paragraph, and in the balance of the materials set out in the Minute, the conviction under s 233 itself is offered as a basis for considering that the applicant had committed a serious non-political crime, as are witness statements and other materials said to support the proposition that he was more widely involved in people smuggling across a number of incidents and a number of boats.  It was said in par 57:

‘It should be noted that it is open to you to put your own weight on the totality of the evidence contained in the Brief of Evidence to the DPP(in addition to the fact of the guilty finding on the one charge) given the different proof standard required for 1F exclusion.  It should also be re-iterated here, that ‘A person does not need to have been charged with or convicted of a crime to come within the ambit of Article 1F’.’

24                  It does not appear, from the ministerial endorsement of the decisional options in Part F of the Minute, whether he has, in effect, relied solely upon the conviction under s 233 of the Act or more broadly upon the other materials and, if so, to what extent he has relied upon the other materials put to him by the departmental officer who prepared the relevant paper.  In the circumstances, the paper put to the Minister does not disclose, in my opinion, a unique path of reasoning so that one could say, ‘Yes, that paper discloses the basis upon which the Minister arrived at his decision.’  For that reason, I am satisfied that the Minute attached to the notification sent to the applicant did not constitute written reasons for the decision, complying with the requirements of s 66(2)(c) of the Act.  The question then becomes one of discretion:  whether I should and, if so, on what basis, direct that the Minister provide written reasons.

25                  The precise nature of the obligation under subs 66(2) is attached to the process of notification.  That is to say:

‘Notification of a decision to refuse an application for a visa must give written reasons why the criterion was not satisfied.’

The notification has come and gone.  Notification was given but didn't comply with the requirement to give written reasons.  Mandamus would not achieve a precise performance of the obligation imposed by the Act.  It is nevertheless open, under the powers conferred upon the Court by s 23 of the Act, as an incident of the exercise of the jurisdiction and having regard to the purpose for which, as a matter of public policy, reasons are required to be provided, to direct that the Minister provide reasons for the decision which was made.  Such provision will obviously be to the best of his ability having regard to the time that has elapsed.

26                  It is true, as the counsel for the Minister pointed out, that there has been a considerable lapse of time since the notification was made and that the claim for an order for the provision of reasons has only recently been agitated in the proposed further amended application. That said, I note, in mitigation that written reasons were requested in March of this year.  I note also that prior to the notification of the Minister's decision in July 2003, there had been decisions of this Court relating to a similar obligation imposed by s 501G of the Act.  They made it clear that the obligation to provide those reasons was not satisfied by the provision of a Minute which allowed for different pathways of reasoning to the decision that was actually made.  That position was confirmed in the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 201 ALR 327, although it was handed down after the notification in this case.

27                  The legal position was clear at the time that the notification of the ministerial decision was made.  That is a factor which weighs in favour of the making of a direction to the Minister.  I appreciate, of course, that the person who will have to provide the reasons for decision is not the person who now occupies the office of Minister for Immigration and Multicultural and Indigenous Affairs.  Because it was a personal decision, it must be the reasons of the person who made it that are produced.  I appreciate also that, in the provision of those reasons, all that the former Minister can be expected to do is to refresh his memory as best he can by reference to the materials that were before him or otherwise, and to provide a set of reasons based on his best recollection.  The question whether or not such reasons will be tendered and, if tendered, will be admitted is a matter that can await the further hearing.

28                  There is here an important entitlement that the applicant did not receive. The minister did not comply with it.  This is a decision of great importance, the applicant being excluded by the Minister’s decision from the grant of a temporary protection visa in circumstances in which his wife and three children have been granted such protection visas and are resident in Perth.  The Minute as disclosed to him leaves out part of some of the materials upon which the Minister based his decision.

29                  I do not, in directing that the Minister provide reasons, want to preclude any argument or determination about the provision of what are said to be privileged documents or documents to which the Privacy Act applies.  To the extent that the Minister had regard to those documents, no doubt reference to that matter should be included in the reasons without the Minister being required to actually disclose the contents of the document in advance of a determination of the matters raised about their disclosure which have yet to be determined.

30                  I will make the followingdirections with respect to these reasons.

1.         The Hon. Philip Ruddock, MHR, formerly the Minister for Immigration and Multicultural and Indigenous Affairs, on or before 8 November 2004 give written reasons for his decision to refuse the applicant the grant of a protection visa made on 27 May 2003.

2.         The respondent is, by 8 November 2004, to provide written submissions and any affidavit evidence on which he or she relies to support the proposition that the documents referred to in the applicant's notice to produce filed 6 October 2004 should not be produced to the Court.

3.         The applicant to file its written submissions in reply by 22 November 2004.

4.         The question of production of the documents will be decided on or about 29 November 2004.

5.         The application to be re-listed for hearing at a date to be fixed in December 2004.

6.         Liberty to apply.

7.         Costs today reserved.

Associate:

Dated:              18 October 2004