FEDERAL COURT OF AUSTRALIA

Peters v Administrative Appeals Tribunal [2004] FCA 1426

MIGRATION – Character test – Prohibited information – Information before Delegate which was not before AAT – Whether AAT performed its “review” role – Information before AAT to which the applicant did not have access – procedural fairness.

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585

Plaintiff S157/2002 v Cth (2003) 211 CLR 476

Nabe v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Minister for Immigration & Multicultural & Indigenous Affairs v George [2004] FCAFC 276

STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546

Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

SONNY PETERS v ADMINISTRATIVE APPEALS TRIBUNAL

SAD 145 OF 2004

SELWAY J

4 NOVEMBER 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application for leave to amend the grounds of review to raise a ground of perceived bias is refused.

2.         The application is dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant has applied seeking orders of certiorari, prohibition and mandamus pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the first respondent (“the AAT”) given on 8 June 2004 (Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585).  In that decision the AAT approved a previous decision of a delegate of the second respondent (the Minister) to cancel the applicant’s visa pursuant to s 501 of the Migration Act 1958 (Cth) (“the Act”).  The applicant says that the decision of the AAT is invalid.  For the reasons given below the application must be dismissed.

2                     The factual context is not in dispute.  It is helpfully set out in the reasons of the AAT:

‘The applicant was born on 12 June 1962 in Tamauranu, New Zealand, and is 41 years of age. He migrated to Australia with his wife and children in January 1992. He has three children, a daughter, Bianca, aged 18, a son Mark, aged 13, and a daughter, Hayley, aged 11. His wife and children are permanent residents. The applicant’s oldest brother moved to Australia in the early 1980’s and is a priest in the Uniting Church at Port Augusta. He has two other brothers in Australia who live in Geelong and Adelaide respectively. He has an older sister who lives in New Zealand, but he has not been in contact with her for many years. His mother lives at Port Augusta, and his late father also lived there until his death. His burial place is at Port Augusta. His youngest brother’s only child is named after the applicant, and is now six years old. The applicant is very close to this nephew.

The applicant applied for Australian citizenship on 4 June 2002. ..[His] application for citizenship … states that the applicant first arrived in Australia on 23 January 1992. Item 43 of the application form requires the applicant to disclose whether he or she has "ever been convicted of, or found guilty of, ANY offences". The applicant ticked the "Yes" box against this question, and later in the same question provided the following information regarding his previous convictions:

       “1.    Elizabeth Court – 1994.  Social Welfare overpayment.  Money paid back before sentencing. 12 month suspended sentence.

       2.      Elizabeth Court – 1994. Assault charge.  Suspended sentence, community service.

       3.      Elizabeth Court 1999.  Item of disguise. $300 fine.

       4.      Adelaide Court. Demanding money by menaces. 2000. Charges were dropped.”

The assault conviction in Australia resulted in a penalty of 12 months imprisonment, which was suspended on his entering into a good behaviour bond. The Tribunal notes that it was not necessary for the applicant to disclose the last charge, because Item 43 of the form only refers to convictions and pending proceedings and not charges which were not proceeded with. It is also noted that a further conviction in 1998 for failing to register a motor vehicle was not disclosed.

In his witness statement …the applicant refers to three convictions in New Zealand, including in particular a conviction for assault occasioning grievous bodily harm arising out of a "very wild brawl" in 1979 at a town, Moerewa, and after turning 17, he was sentenced to 6 years and 9 months in jail for that offence…. The convictions for assault in New Zealand and Australia meant that the applicant had a substantial criminal record for the purposes of s 501(6)(a) of the Act, since they each resulted in a sentence of imprisonment of 12 months or more: s 501(7)(c).

On 5 February 2003 the Department for Immigration and Multicultural and Indigenous Affairs (“DIMIA”) issued the applicant with a notice of intention to consider cancelling his visa pursuant to s 501(2) of the Act…..The notice advised, in effect, that the grounds on which the visa might be liable to cancellation related to the character test and, in particular, the matters referred to in sub-paragraph 501(6)(a) of the Act (the substantial criminal record ground), sub-paragraph 501(6)(b) (the association ground), sub-paragraph 501(6)(c) (the not a good character ground), and sub-paragraph 501(6)(d) (the ground entailing "significant risk of engaging in criminal conduct or other activities harmful to another person in Australia or to the Australian community"). The notice from DIMIA went on to say that the Department was in possession of information from the INTERPOL and the SAPOL showing that the applicant had a criminal record involving sentences of imprisonment of 12 months or more, and that he was a member of an outlawed group (which was presumably a reference to the applicant’s then membership of the Bandidos Motorcycle Club….). It said further that the information was protected under s 503A of the Act and could not be divulged to him. The notice then invited the applicant to comment, and the applicant by his solicitors made submissions to DIMIA in response to the notice….)

A delegate of the respondent decided on 29 October 2003 that there were grounds to cancel the applicant’s visa pursuant to s 501(2) of the Act…., and a notice of visa cancellation was served on the applicant on 16 March 2004 (exhibit A1, pages 5 - 11). The applicant has been held in detention since then.’

3                     Section 501 of the Act relevantly provides:

‘Decision of Minister or delegate—natural justice applies

(1)       …

(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.

…

Character test

(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.

Substantial criminal record

(7)       For the purposes of the character test, a person has a substantial criminal record if:

(a)        the person has been sentenced to death; or

(b)        the person has been sentenced to imprisonment for life; or

(c)        the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)        the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e)        the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

…

(11)     For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

(a)        it does not involve violence, or threatened violence, to the person; or

(b)        it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

Definitions

(12)     In this section:

court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.’

4                     The applicant accepts that he did not pass the character test.  He accepts that the delegate of the Minister, and subsequently the AAT, could, in the exercise of their respective discretions, determine to cancel his visa. 

5                     The applicant argues, however, that the process by which the Tribunal reached its decision to confirm the decision to cancel his visa was a breach of its duty under the Act, both in failing to perform its function of “review” and in failing to afford the applicant a fair hearing.  This argument is based upon certain information which was before the delegate being withheld from the AAT until immediately before the AAT delivered its decision and some information that was before the delegate never having been provided to the AAT.

6                     The relevant information was withheld under s 503A of the Act.  Section 503A(1) relevantly provides that, if information is communicated to an authorised migration officer by a gazetted agencyon condition that it be treated as confidential information and the information is relevant to the exercise of a power under ss 501, 501A, 501B or s 501C, the officer must not divulge or communicate the information to another person, except where the other person is the Minister or an authorised migration officer and the information is divulged or communicated for the purposes of the exercise of a power under ss 501, 501A, 501B or 501C.  Subsections (3) and (5)-(8) of s 503A provide:

(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.

…

(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).

(5A)     If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3):

            (a)     the member or members of the tribunal must not be required to divulge or communicate the information to the Federal Court or the Federal Magistrates Court; and

            (b)     the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Magistrates Court.

The information may only be considered by the Federal Court or the Federal Magistrates Court if a fresh disclosure of the information is made in accordance with:

            (c)     a declaration under subsection (3); or

            (d)     subsection 503B(6).

(6)       This section has effect despite anything in:

            (a)     any other provision of this Act (other than sections 503B and 503C); and

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

(7)       To avoid doubt, if information is divulged or communicated:

            (a)     in accordance with paragraph (1)(a) or (b); or

            (b)     in accordance with a declaration under subsection (3);

the divulging or communication, as the case may be, is taken, for the purposes of the Information Privacy Principles set out in section 14 of the Privacy Act 1988 , to be authorised by law.

(8)       If any Act (whether passed before or after the commencement of this section) provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise.’

7                     In this case the relevant delegate was relevantly authorised and received the “protected information”.  The applicant was represented by solicitors.  They were informed that protected information held by the delegate could not be disclosed pursuant to s 503A of the Act.  No objection was taken.  It would appear that the claim that s 503A of the Act applied was accepted by the applicant and his advisers.

8                     Initially the AAT was not relevantly authorised to receive at least some of the “protected information”.  At least some of it was not provided to the AAT.  It would seem clear that the AAT expressed some concern about this.  The AAT conducted its hearings from 5 – 7 May 2004.  On that occasion only some of the confidential material was put before the Tribunal.  “Confidential submissions” were made on behalf of the Department in relation to it.  The applicant and his advisers were not privy to this material or to the submissions.  On 31 May 2004 the Australian Government Solicitor (acting for the Department) advised the AAT in writing that “a gazetted agency has now indicated that it may consent to the release of a summary of some of the other protected information to the Tribunal”.  The applicant’s legal advisers objected to this course in a letter dated 2 June 2004.  The basis of the objection was that the respective parties had closed their cases before the AAT and the Department should not be permitted to bring further “secret” information before the Tribunal.  In response to this correspondence the AAT set out its position in writing.  It thought that as much material as possible should be before it, but it wished to consider the extent to which the applicant would be prejudiced by the late receipt of the material.  The AAT also expressed concern about receiving a summary only of the material that was before the delegate.  The matter came on for hearing on 4 and 8 June 2004.  It would appear that the legal advisers for the Department made an application to tender three documents.  One, (R3) was a summary of “protected information”, another (R4) was an affidavit by a lawyer from AGS deposing to the accuracy of the summary information and another (R5) comprised a declaration under s 503A(3) together with some other documents clarifying and expanding information in other exhibits.  The application was heard in the absence of the applicant or his legal advisers.  The AAT determined to receive the documents.  Further submissions were then heard from both sides.  The Tribunal delivered its decision later on the day of 8 June 2004.  It is noted that if the AAT had not made its decision on that day, it would have been taken to have “affirmed the decision of the delegate” see s 500(6L) of the Act.

9                     In relation to the protected information, the AAT commented as follows:

‘As mentioned above, the Tribunal has received in evidence certain protected information, namely the information in exhibits R2, R3, R4 and R5. The respondent applied to tender exhibit R3 almost one month after the conclusion of the hearing, but explained that the gazetted agency from which the relevant information had come had only very recently, and of its own initiative, consented to the further protected information in this exhibit being made available to the four persons named in one of the declarations referred to in paragraph 3 above. Exhibits R4 and R5 were tendered on a further resumption of the hearing this day, and these provide further information as to matters included in exhibit R3. Counsel for the applicant strongly objected to the late tender of exhibits R3, R4 and R5, and to the Tribunal’s indulgence in extending the time in which exhibits R4 and R5 were tendered. The Tribunal took the view that it should be as fully informed as possible before making its decision, and had asked the respondent to clarify certain aspects of the protected information. The Tribunal was told that the respondent was not able to tender the information earlier, because of the late receipt of the information from the relevant agency. The Tribunal is satisfied that the applicant has not been prejudiced by the lateness of the tendering of exhibits R3, R4 and R5. By virtue of s 503A(5) and s 503D(1) of the Act, the Tribunal must not divulge or communicate the information in these exhibits to any person other than the Minister or a Commonwealth officer. This means that neither the applicant nor the applicant’s advisers can be made aware of the information in question. The prohibition on divulging the information would, apart from the provisions of s 503A(6), raise issues as to whether the non-disclosure of the information would constitute a breach of natural justice or procedural fairness. During the course of the proceedings and after hearing submissions from counsel for the applicant on whether this was appropriate, the Tribunal excluded all other persons from the hearing room and explored with Messrs Prince and Kennedy whether it was possible to inform the applicant at least of the generic nature of the information, in order to ensure that procedural fairness was observed as far as possible. However, after hearing submissions from the respondent’s counsel, the Tribunal decided that it was not possible to provide any such generic information to the applicant or his advisers without infringing the relevant sections of the Act.

…

In the present matter, it appears that the delegate who made the original decision had access to additional protected information which has not been provided to this Tribunal on the hearing of these proceedings. This would appear to be inconsistent with the role of the Tribunal to review the primary decision, and to arrive at a correct or preferable decision. The Tribunal appreciates that the respondent must consult with the relevant law enforcement or intelligence agency from which the information originated before divulging it to this Tribunal. However, it would clearly be preferable for this Tribunal to receive all of the information possessed by the original decision-maker in all cases where that information is relevant to the issues before the Tribunal. The Tribunal suggests that DIMIA should explain this to the agency concerned whenever there is an application to this Tribunal to review a delegate’s decision, so that the Tribunal will be fully informed as to the facts on which the delegate’s decision was based.

Counsel for the applicant submitted that in determining the weight and use to be made of the protected information, the Tribunal should assess the inherent quality of the information, and take into account that the material was untested, in the sense that there had been no opportunity for the applicant to comment on or contradict the information. By way of illustration counsel contrasted incontrovertible information, such as video tape evidence, with hearsay information from a police officer or informant, where there were risks of the information being untruthful, exaggerated or otherwise unreliable. As against this, counsel for the respondent submitted that if the Tribunal were to treat the protected information with less weight than the information would otherwise be entitled to, because it was not divulged or communicated to the applicant, then that would amount to an improper attempt to avoid the clear intention of Parliament by imposing sanctions in connection with the exercise of the Minister’s discretion, and counsel cited Minister for Immigration and Multicultural and Indigenous Affairs v Ball (supra) per Dowsett J (dissenting) at [30], as well as other passages from Evans v Minister for Immigration and Multicultural and Indigenous Affairs (supra).

The submission of the respondent’s counsel seems to be taken primarily from Ball, where the issue depended on the application of s 503A in a case where the Minister personally made a decision under s 501(2) to cancel the respondent’s visa, and the Court held that to require the Minister in those circumstances to provide the protected information to the respondent would be to impose sanctions in connection with the exercise of the Minister’s discretion. The Tribunal accepts that it would defeat the clear intention of Parliament if the Tribunal were to disregard the protected information on the grounds that it could not be made available to the applicant or tested in the traditional forensic manner. However, whilst this extreme approach would not be permissible, the Tribunal is nevertheless required to evaluate all of the evidence before it, including the protected information. In performing this function the Tribunal considers that it would be appropriate to take into account whether it has been possible to give the applicant an adequate opportunity to comment on or if appropriate, challenge the protected information, and if this is not possible, the weight and evidentiary value of the information concerned will be affected, depending on its nature and whether the information is such that it is inherently reliable. It seems to the Tribunal that its task in the present matter is to evaluate all of the evidence before it, and that the evidence which is protected information should be evaluated in accordance with the above approach. The Tribunal is satisfied that the applicant had a sufficient opportunity in his evidence-in-chief to address the protected information, and that the cross-examination of the applicant in relation to the protected information was taken as far as it could be taken without infringing s 503A and s 503D of the Act.’

10                  As already noted, these proceedings are brought pursuant to s 39B of the Judiciary Act 1903 (Cth).  In order to succeed the applicant must show that there was a jurisdictional error in the process, reasoning or decision of the AAT.

11                  It is noted that the applicant could have brought proceedings pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  Counsel for the applicant candidly admitted that the reason for not doing so was the view taken that such appeals were excluded by s 476 of the Act, usually called the privative clause.  However, it is clear that the privative clause has no application if the relevant decision is a nullity by reason of a jurisdictional error: see Plaintiff S157/2002 v Cth (2003) 211 CLR 476.  There are special procedural requirements applicable to “appeals” under s 44 of the AAT Act, including the requirement that some matters be heard by a Full Court: see s 44(3)(b) of the AAT Act.  In this case no issue is taken with the use of the statutory writs rather than the procedure under the AAT Act.  As nothing turns on the issue, it is unnecessary to deal with it further, except to note that an “appeal” under s 44 of the AAT Act may be the more appropriate procedure and that there is a discretion not to grant a statutory writ if a more appropriate procedure was available but was not used.

12                  Both parties are agreed that I should proceed on the basis that the AAT was correct in its assessment that the delegate “had access to additional protected information which has not been provided to this Tribunal on the hearing of these proceedings”.  That additional information was additional to that in R2 to R5.  The applicant says that the AAT had a duty to obtain the whole of the file that was before the delegate and that its failure to do so was a jurisdictional error.  In the ordinary course this is undoubtedly correct.  In the ordinary course a decision of a delegate to revoke a visa under s 500 of the Act must be notified in writing to the person affected and must be accompanied by two copies of every document in the delegate’s possession or control which was relevant to the making of the decision: s 501G(2) of the Act.  There is also an obligation upon the delegate to lodge with the AAT two copies of “every document or part of a document that is in the person’s possession or under the person’s control and is considered by the person to be relevant to the review …”:  s 37(1)(b) AAT Act.  As counsel for the applicant correctly argued, the nature of the “review” process to be undertaken by the AAT must be understood in this context: see Nabe v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263at [42]-[43]; [48]-[51].  I accept that in circumstances where the duty to provide the relevant information (either to the person affected or to the AAT) has been breached and such breach results in unfairness then there may be a jurisdictional error: see Minister for Immigration & Multicultural & Indigenous Affairs v George [2004] FCAFC 276 at [52]-[56]; STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546 at [21]‑[22].

13                  But these general propositions can only be understood in the statutory context.  That context clearly includes s 503A of the Act.  It is perfectly clear that the obligation upon the delegate to provide 2 copies of the material held by him or her to the person affected, does not apply to “protected information”: see s 501G(2)(f) of the Act.  Similarly, it is clear that the obligation upon the delegate to provide copies of the material to the AAT does not apply to protected information: see s 503A of the Act and see Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91. 

14                  That being the case it is clear that there is no breach by the AAT of its duty to conduct a “review” merely because it does not have access to “protected information”.

15                  It also follows that there is no breach of any duty upon the Tribunal to afford procedural fairness to the applicant merely because it could not give him access to the protected information.

16                  This is not to suggest that I would necessarily have agreed with the procedure adopted by the AAT.  However, that is not the issue before this Court.  The only issue before this Court is whether there was jurisdictional error. 

17                  The applicant also argued that the AAT had a duty to ensure that the relevant documents properly fell within the terms of s 503A of the Act.  There are cases where it is hotly contested that the relevant information is “protected information” within s 503A of the Act: see, for example, Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242.  But in this case the relevant information had been claimed to be protected information from the very beginning.  There was no dispute about it.  No issue was raised before the Tribunal that the information was not properly protected information.  The AAT proceeded on that basis.  In my view there was no jurisdictional error in it doing so.

18                  The applicant also argued that the “summary” provided to the AAT was not itself “protected information” with the consequence that that summary should have been made available to the applicant so that he would have an opportunity to answer it.  The short answer to this argument is that “information” in s 503A does not refer to the physical document, but to the “knowledge” recorded within it.  So understood, it is a breach of s 503A of the Act to impart that knowledge, or any part of it, whether or not the actual document is imparted.  It follows that a summary of the information will still comprise “protected information” so long as it imparts knowledge communicated by a gazetted agency and otherwise falling within s 503A of the Act.

19                  The applicant sought leave to amend his grounds of review so as to raise a question of perceived bias.  The applicant said that the receipt by the Tribunal of the relevant information on the last day upon which it could give a decision, and after hearing submissions from the Department in the absence of the applicant or his advisers, would lead a reasonable observer to perceive that the AAT was not impartial.  In the ordinary course confidential discussions by the trier of fact with only one party may well result in a claim for perceived bias.  However, the issue must always be understood in the context in which it arises.  In this case the information was “protected information”.  There was no choice about receiving it in confidence.  If it was to be received it necessarily had to be in confidence.  The only issue was whether it should have been received or not.  The AAT was sensitive to the problem.  It referred to the advantage of it receiving all available information – an advantage reflected in the AAT Act.  Indeed, one of the grounds of complaint by the applicant is that the AAT did not receive all of the information.  The AAT expressly referred to the potential unfairness to the applicant and concluded that it was “satisfied that the applicant [had] not been prejudiced by the lateness of the tendering of exhibits R3, R4 and R5”.  This may be little comfort to the applicant, but in my view a reasonable bystander, aware of these matters, would accept that the AAT was doing its best in a difficult situation.  Of course, such situations are not unknown even for courts which are faced with issues of public interest immunity, legal professional privilege and so on.

20                  In my view the argument that the AAT was affected by perceived bias cannot succeed.  Leave to amend the grounds of review in order to raise that ground is refused.

21                  For these reasons the application must be dismissed.  Having reached this conclusion it is unnecessary for me to consider what effect s 500(6L) of the Act might have if the decision of the AAT was affected by jurisdictional error, and the time limit specified in that section has subsequently expired.  That may involve a Constitutional issue.  I make no comment on that question.

Associate:

Dated:              4 November 2004