FEDERAL COURT OF AUSTRALIA

Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1532

MIGRATION – application for writ of certiorari in respect of decision of Minister to cancel visa on character grounds – privative clause decision – where Minister relied on protected information – where issues paper disclosed applicant's wife falun gong practitioner – whether failure to take into account protection obligations owed to applicant's wife and consequently protection obligations to applicant – where a criterion for a protection visa can be membership of same family unit as a refugee – where Australian domestic law extends protective effect of Refugees Convention to members of a family unit of a refugee but where no international obligations under Refugees Convention to members of family unit of a refugee unless members are refugees themselves – no failure to take into account relevant consideration in cancelling visa under s 501 – delay in serving notice of decision did not establish Minister not acting in good faith – criminal conduct and general conduct not mutually exclusive

Migration Act 1958 (Cth) ss 501, 501C

Herrera v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 314 referred to

Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 applied

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 applied

HAI DONG ZHAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N543 OF 2002

MOORE J

26 NOVEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent's costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This application is brought under s 39B of the Judiciary Act 1903 (Cth).  The applicant seeks judicial review (by an application for a writ of certiorari and other relief) of a decision of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') of 13 February 2002 to cancel his visa ('the cancellation decision').

Background

2                     The applicant is a national of the People's Republic of China ('China').  Before being detained after his visa was cancelled, the applicant lived with his wife and teenage daughter.  He and his wife ran two childcare centres.  He had been to Australia a number of times.  Most recently, he arrived in Australia on 21 September 1999 on an existing Business (Long Stay) (nominated dependent) Visa (Subclass 457) ('the Business Visa') which was in effect until 23 September 2002.  His wife was the primary visa holder.

3                     On 28 September 2001 the applicant applied for a permanent visa, Subclass 845 – Established Business in Australia visa (nominated dependent).  On 13 February 2002 the Minister cancelled his Business Visa (being the cancellation decision to which these proceedings relate) on the grounds that the Minister reasonably suspected that the applicant did not pass the character test and that the Minister was satisfied the cancellation of the visa was in the national interest.  The decision was made under s 501(3) of the Migration Act 1958 (Cth) ('the Act').  He was informed of this decision by letter dated 26 February 2002 from an Acting First Assistant Secretary of the Department of Immigration and Multicultural and Indigenous Affairs ('the Department').  On 4 June 2002 he was apprehended and detained.  On 10 June 2002, the applicant applied to the Minister to revoke the cancellation decision.  On 29 August 2002, the Minister decided not to revoke the cancellation decision.

4                     It should be emphasised that in these proceedings, the applicant challenged only the cancellation decision, namely the decision of 13 February 2002.  It should also be noted that the application was filed in June 2002 but that on the application of both parties, the matter was not listed for hearing because the Minister had been asked to consider the position of the applicant in another context.  That is, the applicant applied for a protection visa after his Business Visa was cancelled and that application has not yet been dealt with.  The parties took the view until recently that it was unnecessary to have this application heard and determined.

Issues Paper

5                     The letter of 26 February 2002 enclosed what was said to be the "decision record".  This appears to have been a reference to a document entitled 'Issues for consideration for possible visa cancellation under subsection 501(3) of the Migration Act 1958 (Cth)' ('Issues paper').  In the concluding section of the document the Minister signified that he reasonably suspected the applicant did not pass the character test and was satisfied the cancellation of the visa was in the national interest.  In that section the Minister also signified he was cancelling the visa.  This section was signed by the Minister and dated 13 February 2002.

6                     Before proceeding to consider the Issues paper in more detail, it is convenient to note the legislative framework in which the cancellation decision was made.  Section 501(3) of the Act provides that the Minister may cancel a visa if the Minister reasonably suspects that the person holding the visa does not pass the character test and the Minister is satisfied that the refusal or cancellation is in the national interest.  Section 501(6) sets out the circumstances in which a person does not pass the character test for the purposes of s 501(3).  In particular, s 501(6)(c) provides:

(6) For the purposes of this section, a person does not pass the character test if:

…

(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; …

7                     The rules of natural justice do not apply to a decision under s 501(3).  However, s 501C applies if the Minister makes a decision under s 501(3) to cancel a visa.  Under s 501C(3), as soon as practicable after making the decision, the Minister must give the person a written notice that sets out the decision and particulars of the relevant information and invite the person to make representations to the Minister about revocation of the cancellation decision.  This was purportedly done by the letter of 26 February 2002.

8                     Under s 501C(2), ‘relevant information’ constitutes information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

9                     Under s 5(1), the expression, ‘non-disclosable information’ means information or matter whose disclosure would, in the Minister’s opinion:

be contrary to the national interest because it would:

(i) prejudice the security, defence or international relations of Australia; or

(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

(b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

10                  Under s 501C(4), the Minister may revoke the cancellation decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).

11                  Under s 501C(5) the power to revoke may only be exercised by the Minister personally.  If the Minister revokes the cancellation decision then, pursuant to s 501C(6), the decision is taken not to have been made. 

12                  Section 503A(1) relevantly provides that:

(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

…

13                  In the letter of 26 February 2002, it was noted that certain attachments to the "decision record" (that is, the Issues paper) were not being provided as they were protected under s 503A.  The letter also forwarded a copy of the Minister's "Direction 21" being "Direction under section 499-Visa refusal and cancellation under section 501 of the Migration Act 1958" ('Direction 21').

14                  It is not in issue that the Issues paper was provided to the Minister before making the cancellation decision.  The document was in several sections.  The second section, Part B, identified grounds for cancellation (and set out s 501(3)) and two short paragraphs referring to the "evidence of grounds for cancellation".  The evidence referred to was protected information received by the Department concerning the applicant.

15                  The third section of the Issues paper, Part C, was headed "Assessment".  In that Part there was an analysis of the character test, a discussion of what might constitute reasonable suspicion for the purposes of s 501(6)(c)(ii) together with an observation that there was a reasonable suspicion in relation to the applicant that he did not pass the character test because of his past and present general conduct having regard to the protected information.  There was also an analysis of what might constitute the national interest, a discussion of the judgment of the High Court in Re Patterson: Ex parte Taylor(2001) 207 CLR 391 and an observation that the national interest may have required action in relation to the applicant.  It was put this way:

There is also a view that the "National Interest" may include Australia's "reputation" and "good name in the world".  It is certainly reasonable to conclude that Australia's international reputation and good standing would be damaged if it provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country and seek to evade that country's law enforcement action. Given Mr Zhao's record in evading law enforcement activities, and that Australia's international reputation and good name is paramount, you may find that it is in the national interest that action be taken quickly to prevent him disappearing into the community before his case is dealt with.  (Emphasis added)

There was also a discussion in this Part, of how the legislative provisions would operate if a decision to cancel was made and how the applicant would be able to respond to such a decision. The Minister was advised that because the information forming the basis for the decision was protected information, the applicant's ability to obtain revocation under s 501C may be limited.  However, he was advised that 'Mr Wong [sic – this is an incorrect reference to the applicant] may be able to convince you to exercise your powers of revocation under section 501C'.

16                  The fourth section of the Issues paper, Part D, was headed "Discretion".  It commenced by noting that if the Minister concluded the applicant did not pass the character test and was satisfied that cancellation of the visa was in the national interest, the Minister had a discretion to decide whether the applicant should be permitted to remain in Australia.  In this Part there were a number of headings and subheadings.  The first headings concerned "The Primary Considerations".  Under this heading there were three subheadings, namely "Protection of the Australia (sic) community", "Expectations of the Australian community" and "the Best interests of the child".  Under the subheading "Protection of the Australia Community" the following remarks were made:

the protected information … may lead you to conclude that the nature of Mr Zhao's conduct is "very serious" within the meaning of the Direction [Direction 21].

…

It is open for you to find that there is a risk of Mr Zhao's conducting activities of a like nature to that identified in the protected information…

17                  Under the subheading "Expectations of the Australian community" the following remarks were made:

Based on the protected information, it is open for you to find that the offences are such that the Australian community would expect that Mr Zhao's visa would be cancelled.

18                  Under the subheading "The Best interests of the Child" the following was said:

The Best interests of the child

25. Mr Zhao has one child, Rui Zhao, who is 16 years and 8 months old and resides with him and his wife in Australia.  Ms Rui Zhao currently holds a subclass 457 Business (Long Stay) (nominated dependent) visa.  Mr Zhao's wife, Ms Huang Jia Zhen, is the primary visa holder.

26.  Direction No. 21 indicates that "In general terms, the child's best interest will be served if the child remains with its parents."  In this case, DIMIA Movement Records show that Ms Rui Zhao (dob 19 May 1985) first arrived in Australia on 11 March 19999 at the age of 13 years and 10 months and due to her making three trips overseas since then, the sum total of her residence in Australia is less than two years.  It should be noted that Ms Rui Zhao is a Chinese national residing temporarily in Australia and as such it could be considered that Ms Rui Zhao would find no difficulty in returning to China should Mr Zhao's visa be cancelled.

27.  On the other, her mother Ms Huang Jia Zhen, has applied for a permanent subclass 845 Established Business in Australia visa listed her daughter as a dependent.  Should the visa be granted and should Ms Huang Jia Zhen elect to remain in Australia with her daughter rather than return to China, then cancellation of Mr Zhao's visa would result in the separation of Ms Zhao from her father.

19                  The following section in Part D dealt with what were described as "Other considerations".  There were three considerations identified.  They were "Ties to the Australian community" (containing two elements, family ties and business ties), "Rehabilitation and recent good conduct" and "Other international obligations".  The first two were dealt with in the following passage:

Other considerations

a)      Ties to the Australian community

Family Ties

28. Mr Zhao has a wife and child currently residing in Australia.  Both his wife and daughter are Chinese citizens on 457 business (Long Stay) visas.  As Mr Zhao is the secondary visa holder, the cancellation of his subclass 457 visa would not result in the cancellation of his wife or child's visa.

29. On 28 September 2001 Ms Huang lodged an application for a subclass 845 – Established Business in Australia visa listing Mr Zhao and daughter as nominated dependents.  A decision has yet to be made on this visa.

30.  It should be noted that there is evidence on file contained in two references submitted by staff members at A & C International Group Pty Ltd, that Ms Huang is a Falun Dafa practitioner.  On 22 July 1999 Falun Gong was formally banned in China. Since then, the Chinese government has cracked down on Falun Gong teachers and practitioners.  In light of this, it is possible that Ms Huang may decide to remain in Australia rather than return to China with her husband. 

…

c)      Rehabilitation and recent good conduct

32.  The Department has no evidence of rehabilitation and recent good conduct.

In the section dealing with "Other international obligations" the following observation was made:

Direction 21 indicates that the decision-maker must also consider any international obligations that may be owed to Mr Zhao.  The protected information does not reveal any issues that would engage Australia's international obligations

20                  The relevant part of Direction 21 provides:

2.18     Where relevant, decision-makers are required to consider the international obligations contained in this section.

…

2.22     In cases where issues of protection pursuant to the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration in the decision making process.

2.23     If Article 33(1) of the Refugees Convention does not apply to the non-citizen, there is no obligation on Australia to provide the non-citizen with protection under the Refugees Convention.  If Article 33(1) applies, then there will need to be consideration whether the non-system can claim the benefit of Article 33(1).

I now turn to consider the applicant's challenge to the cancellation decision.

Consideration of the issues raised in the application

21                  The cancellation decision is a privative clause decision.  Accordingly, it is immune from challenge unless it is attended by jurisdictional error.  The applicant has sought to establish it was.  The application was advanced on several bases.  A number concerned events after the cancellation decision was made on 13 February 2002.  One submission made on behalf of the applicant was that there was a material delay in notifying the applicant of the decision though the evidence as to precisely when the applicant was informed (by being given the letter of 26 February 2002) is not clear (it was sometime after 14 March 2002 and before 21 May 2002).  This delay was apparently said to evidence lack of good faith on the part of the Minister and also a failure to comply with the requirement in s 501C(3) that notice be given as soon as practicable.  Another point was that the notice of the decision (the letter of 26 February 2002) did not inform the applicant of all particulars of relevant information, again a matter required by s 501C(3).  That was because the letter did not provide the name of the agency which had provided the protected information which was disclosable information.  That latter proposition is correct: see NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401, and was not disputed by the Minister.

22                  However these matters are generally irrelevant.  I accept the submission made on behalf of the Minister that a failure to comply with s 501C(3) does not affect the validity of the cancellation decision which puts in train the procedures in s 501C: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 (at [139] - [145]).  Assuming that events after a decision of this type might found an inference that the Minister did not act in good faith (it is unnecessary to consider how conduct so characterised might constitute jurisdictional error), the conduct pointed to in this case goes nowhere near establishing the Minister did not act in good faith.  Indeed, as counsel for the Minister submitted, the material before me suggests that any delay in serving the notice arose from the conduct of the applicant and his desire to avoid the Department and departmental officers.

23                  Another submission made on behalf of the applicant, concerned the apparent anomaly arising from the Minister dealing with the matter on the basis of the general conduct of the applicant and not any alleged criminal conduct on his part.  This submission was based on the reference in the Issues paper to the applicant's "record in evading law enforcement activities" (see [15] above) and the fact that the protected information must have come from a law enforcement agency having regard to the scope of s 503A.  I was, in effect, asked to infer from these two matters that the protected information on which the Minister's decision was based, concerned criminal conduct of the applicant in China.  Yet in the letter of 26 February 2002, it is indicated that the Minister's decision was based on his assessment of the applicant's general conduct.

24                  The first point to note is that unless what is said in the Issues paper informed the respondent why the visa was cancelled in the sense of explaining how the Minister arrived at the adverse conclusion reached, the Issues paper cannot be taken to be the reasons for decision of the Minister: see Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 at [49] and [68].  This legal proposition has relevance to other issues discussed later.  The second point is that s 501(6)(c), when it speaks of a person's criminal conduct on the one hand, and general conduct on the other, does not create a mutually exclusive dichotomy: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195-196.  Accordingly the premise on which this submission was based (that conduct cannot be viewed as general conduct as well as criminal conduct) is not a sound one whatever the nature of the jurisdictional error alleged to have arisen because the Minister based his decision on the applicant's general conduct.

25                  The next submission on behalf of the applicant concerned a statement in the Issues paper concerning the applicant's wife.  The Issues paper noted, in effect, that the wife had applied for a subclass 845 Established Business in Australia visa and that if the application was successful then she and the daughter might remain in Australia.  It was submitted that this assumption could not have been made because if the applicant was found to not pass the character test then a criterion for the grant of the visa to the wife could not have been met (see the criterion in subclass 845.224(2)(a) which requires all members of the family unit to satisfy, inter alia, public interest criterion 4001 which, without descending into specifics, raises the character test).  Even if this submission is correct (concerning the effect in the present case of the criterion in subclass 845.224(2)(a)) it raises a false issue for at least this reason (putting aside what use, if any, can be made of the Issues paper to ascertain the Minister's reasons).  This matter was referred to in the Issues paper to deal with one of two situations.  The first was that the applicant would return to China without his family (thus breaking up the family unit and separating him from his daughter) and the second was that he would return to China with his family (avoiding the consequences just referred to).  The fact that the author of the Issues paper may have been mistaken about the possibility of the wife and daughter remaining in Australia on a subclass 845 Established Business in Australia visa (and, as a consequence, the Minister was misled) meant that an issue was wrongly raised for the Minister's consideration (that the family might be broken up).  But it was a consideration which militated against the cancellation of the visa.  That is, the Minister was asked to take into account a consideration which favoured the applicant but which, on the applicant's argument, should not have been taken into account.  Whatever may be the legal effect, if any, of the issue (of the family being broke up) being raised it would scarcely support (in whole or in part) the grant of the discretionary remedy of certiorari against the Minister.

26                  The next submission on behalf of the applicant concerned the alleged failure of the Minister to take into account three matters.  Again, I proceed on the assumption (in the applicant's favour) that any such failure on the part of the Minister might point to jurisdictional error: but see Herrera v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 314 at [5].  I also proceed on the basis that what was said or not said in the Issues paper indicates what was and what was not taken into account by the Minister (see the judgment of the Full Court in Minister for Immigration and Multicultural Affairs v W157/00A above).  The first of the matters was the best interests of the daughter.  It is said that the Issues paper reveals that the Minister would not have taken into account the best interests of the daughter.  No such inference, in my view, can be drawn.  The position of the daughter was clearly adverted to in the Issues paper.

27                  The second matter it was contended the Minister failed to take into account, was Australia's protection obligations to the applicant's wife.  There was material before the Minister which indicated the wife was a member of the Falun Gong movement.  Arguably this may have raised a question, if it were relevant, about Australia owing protection obligations to the wife.  This was relevant for the applicant, so it was contended, because if Australia owed protection obligations to the applicant's wife, it owed similar obligations to the applicant which was a relevant consideration.  It may be accepted, for present purposes, that Direction 21 requires consideration of two related matters (its precise legal effect on the Minister is another question).  The first concerns "issues of protection pursuant to the [Refugees] Convention".  The second is the application of Article 33(1) to a person to whom it applies.

28                  It may be accepted that a criterion for a protection visa can be that a person is a member of the same family unit as a person who claims to have a well founded fear of persecution (and to whom Australia has protection obligations under the Refugees Convention): see the criterion for subclass 866 (Protection) visa in 866.211(b).  However because a protection visa can be obtained by a person who is in the family unit of a refugee, it does not follow that Australia has international obligations to that person under the Refugees Convention.  As the High Court discussed in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441 (at [21]-[25]) Australian domestic law extends the protective effect of the Refugees Convention to members of the family unit of a refugee (as reflected in the criterion in 866.211(b)) because of Recommendation B in the Final Act of the Conference of Plenipotentiaries of 1951.  There are no international obligations under the Refugees Convention to members of the family unit of a refugee (unless they are, themselves, refugees).  It would appear to follow that Direction 21 does not, in terms, raise for consideration whether the holder of a visa which might be cancelled under s 501 is, or might be, a member of the family unit of a person to whom Australia might owe protection obligations under the Refugees Convention.  Accordingly, and assuming the evidence establishes the Minister failed to consider this question (which it does not) it was not a question required to be considered for the reasons advanced on behalf of the applicant in these proceedings.

29                  The third matter was the good conduct of the applicant.  It was contended that the Minister failed to take into account the good conduct of the applicant revealed by a letter from the Australian Federal Police that, in effect, the applicant did not have a criminal record in Australia.  It is not apparent to me that this was a matter the Minister was obliged to consider.  The matter concerning the applicant's character raised by the Issues paper, it can be inferred, was conduct of the applicant in China prior to arriving in Australia.  Not having a criminal record in Australia was probably a neutral consideration but, in any event, was not something requiring consideration assuming (which has not been proved) that it was material that was available to the Minister when he made the cancellation decision and was not taken into account. 

30                  The application should be dismissed with costs.

31                  I should record in these reasons that after the hearing I was provided by the Minister with a confidential annexure (annexure K) to a submission to the Minister concerning an application by the applicant for a protection visa.  The solicitor acting for the applicant had sought the production of the submission.  There was an issue about confidentiality and it was agreed that I could read the submission to ascertain whether there was anything in it which would indicate that at the time the cancellation decision was made, the Department had in its possession information which might have suggested the applicant was a Falun Gong practitioner.  I had read the submission before the hearing and I indicated at the hearing that the submission did not contain such information.  I said, however, that annexure K, which was referred to in the submission but not annexed to the copy I had been provided with, might possibly contain such information.  It was agreed that I be provided with a copy of the annexure and read it for the same purpose I read the submission.  I have read Annexure K and it does not indicate that the Department had in its possession, at the time the cancellation decision was made, information which might have suggested the applicant was a Falun Gong practitioner.

Associate:

Dated:              26 November 2004