FEDERAL COURT OF AUSTRALIA
Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838
ESTOPPEL – Anshun estoppel – whether applicant estopped from bringing further judicial review proceedings – grounds of review available in earlier proceeding – delay not attributable to the respondent – applicant had legal representation in earlier proceeding – no “special circumstances” exist to justify bringing of present application
PRACTICE AND PROCEDURE - whether application for an enlargement of time to seek constitutional writs ought to be allowed – no satisfactory explanation for delay – prospects of success does not warrant extension of time – extension of time not necessary to do justice between the parties – application refused
Migration Act 1958 (Cth) ss 4(1), 4(4), 5, 501, 501C
High Court Rules 2004 rr 4.02, 25.06.1, 25.07.2
Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 referred to
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 referred to
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 cited
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 cited
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 cited
Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402 cited
Kruger v The Commonwealth (1997) 190 CLR 1 referred to
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to
Wong v Minister for Immigration and Indigenous Affairs (2004) 146 FCR 10 referred to
BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 cited
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114 cited
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 referred to
APPLICANT M117 OF 2007 v MINISTER FOR IMMIGRATION AND CITIZENSHIP
VID 1101 OF 2007
KENNY J
5 DECEMBER 2008
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1101 OF 2007 |
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BETWEEN: |
APPLICANT M117 OF 2007 Applicant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
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KENNY J |
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DATE OF ORDER: |
5 DECEMBER 2008 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application for an enlargement of time be refused.
2. The application for an order to show cause be dismissed.
3. The applicant pay the respondent’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1101 OF 2007 |
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BETWEEN: |
APPLICANT M117 OF 2007 Applicant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
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JUDGE: |
KENNY J |
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DATE: |
5 DECEMBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
INTRODUCTION
1 In this proceeding, the applicant challenges the Minister’s decision to cancel a bridging visa granted to the applicant in May 1997 and the Minister’s subsequent decision not to revoke that decision. The decisions under challenge were made in early June 2005 and on 12 October 2005 respectively. This is not the first time that these two decisions have been the subject of judicial review. For the reasons I am about to state, I would dismiss his application.
2 The applicant is a citizen of the People’s Republic of China. The applicant arrived in Australia on 1 February 1997 on a Temporary Business Entry (Class UC) visa, subclass 456. He was subsequently granted a further subclass 456 visa, which expired on 26 May 1997.
3 The history of the applicant’s further visas is a complicated one. On 23 May 1997, the applicant was granted a Bridging visa A (Class WA) visa, subclass 010 and also applied for a Business – Long Stay visa, subclass 457. A delegate of the Minister refused his application for a long stay business visa on 16 June 1998. The applicant unsuccessfully applied to the Migration Internal Review Office, which affirmed the delegate’s decision on 7 September 1998. The bridging visa granted in May 1997 allowed the applicant to remain in Australia until 28 days after he was notified of the decision of the Migration Internal Review Office.
4 Also in June 1997, Interpol contacted the Australian Federal Police regarding serious criminal offences allegedly committed by the applicant in China before he entered Australia. A year later, in June 1998, the Australian Federal Police received an arrest warrant issued by Tianjin Public Security Bureau in China. The Police passed this information to officers of the Minister’s Department.
5 On 8 December 1998, the applicant was granted a Bridging visa A and lodged an application for a protection visa. A delegate of the Minister refused the applicant’s protection visa application on 20 January 1999. The applicant unsuccessfully applied for review by the Refugee Review Tribunal, which affirmed the delegate’s decision on 17 December 1999. The Tribunal’s decision was set aside by this Court on 18 March 2008. The bridging visa granted in December 1998 expired 28 days after the Tribunal’s decision, that is, on 14 January 2000. Assuming (as the Minister’s Department did) that the applicant had no other visa than this visa, the applicant became an unlawful non-citizen after 14 January 2000.
6 Departmental efforts to locate the applicant failed until 24 February 2004, when the applicant was stopped by the Victorian police for a traffic offence. The police notified the Department and the applicant was taken into immigration detention. Shortly afterwards, on 27 February 2004, the applicant applied for a Bridging visa E. A delegate of the Minister refused this application on 2 March 2004. The applicant unsuccessfully applied for review by the Migration Review Tribunal, which affirmed the delegate’s decision on 12 March 2004.
7 Two days earlier, on 10 March 2004, Interpol issued a “Red Notice” setting out information relating to the allegations made against the applicant by the Chinese authorities. Under the heading “Fugitive wanted for prosecution” the Interpol Red Notice gave particulars of the alleged fugitive, including name, birth, nationality, and physical description, as well as particulars of “judicial information”. The “Summary of facts of the case” under this latter heading read as follows:
CHINA, Tianjin: On 20 December 1996, [the applicant] and two accomplices kidnapped a 15-year-old boy and killed him as they did not receive the ransom of RMB 1,5000,000 (EUR 145,000) they had demanded.
The charge was said to be kidnapping and murder. On 23 June 2004, the applicant was informed that a warrant for his arrest had been issued by the Chinese authorities. The applicant remained in immigration detention in Australia.
8 On 23 May 2005, a Departmental officer examined the relevant files and decided that the applicant had never been correctly notified of the decision of the Migration Internal Review Office in September 1998 affirming the delegate’s decision to refuse the applicant a long stay business visa. A consequence of this failure was that the bridging visa granted in May 1997 was still current. Accordingly, on the basis of the Departmental officer’s decision, the applicant was released from detention.
9 On 25 May 2005, Departmental officers interviewed the applicant and issued him with a notice of intention to consider cancellation of the May 1997 bridging visa. After the interview, a delegate of the Minister decided to cancel this bridging visa and the applicant was detained in immigration detention. On 26 May 2005, the applicant applied to the Migration Review Tribunal for review and, on 7 June 2005, the Tribunal set aside the delegate’s decision.
10 In early June 2005, the Minister at the time made one of the decisions challenged in this proceeding. This was the Minister’s decision to cancel the applicant’s bridging visa under s 501(3) of the Migration Act 1958 (Cth). By a letter dated 9 June 2005, the applicant and his legal representatives were informed of the cancellation decision and were also given, amongst other things: (1) a statement of the Minister’s reasons; (2) the Interpol Red Notice; (3) the warrant of arrest issued by the Tianjin Public Security Bureau; and (4) Ministerial General Direction Number 21 – “Visa Refusal and Cancellation under Section 501 of the Migration Act 1958”.
11 By letters dated 16 June 2005 and 9 August 2005, the applicant made representations to the Minister under s 501C of the Migration Act as to why the Minister’s decision should be revoked. On 12 October 2005, the Minister made the second decision under challenge in this proceeding. This was the Minister’s decision not to revoke her decision to cancel the applicant’s bridging visa.
12 On 26 October 2005, the applicant commenced a proceeding in this Court, which was transferred in the following month to the Federal Magistrates Court. A Federal Magistrate dismissed the applicant’s application to set aside the Minister’s decisions on 26 May 2006. The applicant did not seek to appeal against this judgment.
13 On 22 May 2006, the Chinese Ministry of Foreign Affairs provided a note that “they will not carry out the death penalty for crimes that the individual whose repatriation has been requested, [the applicant], committed before repatriation”.
14 Two years later, on 8 October 2007, the applicant filed an application in the High Court of Australia seeking constitutional writs in respect of the decisions under review. This application was supported by affidavits sworn by the applicant and his solicitor, Ms Psihogios-Billington. On 18 October 2007, the proceeding “including any application for enlargement of time” was remitted to the Federal Court, “to be heard and determined subject to Part 25 of the High Court Rules 2004”.
LEGISLATIVE FRAMEWORK
15 In order to understand the issues that fall for determination, it may be helpful to set out the relevant provisions of the Migration Act.
16 The Minister’s decision to cancel the applicant’s visa was made under s 501(3). This and related provisions read as follows:
Decision of Minister – natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
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.
It is common ground that the applicant does not have a substantial criminal record as defined in s 501(7).
17 The Minister’s decision not to revoke her decision to cancel the applicant’s visa was made under s 501C, which relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) except in a case where the person is not entitled to make representations about revocation of the original decision … invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).
(5) The power under subsection (4) may only be exercised by the Minister personally.
…
(8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.
…
(11) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
18 Section 5 defines “non-disclosable information” as, among other things, “information … whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would … prejudice the security, defence or international relations of Australia”.
THE MINISTER’S DECISIONS
19 The Minister gave reasons for the decision pursuant to s 501(3) and (6)(c)(ii) to cancel the applicant’s visa. The Minister’s reason relevantly read:
CHARACTER TEST
1. On 26 May 1997, an arrest warrant was issued by the Tianjin Public Security Bureau in respect of [the applicant].
2. On 10 March 2004, an Interpol Red Notice was issued for the arrest of [the applicant]. This notice stated that, on 20 December 1996, [the applicant] and two accomplices kidnapped a 15-year old boy and killed him after they did not receive the ransom … they had demanded.
3. My Department also received further information relating to [the applicant’s] character, which is protected under section 503A of the [Migration Act].
4. It is my practice to be guided by the General Direction 21 … in considering the application of the character test. The Direction states (at paragraph 1.10) that, in the absence of countervailing factors, a non-citizen is not of good character if they are the subject of unresolved charges involving serious offences.
5. I considered [the applicant’s] alleged conduct to be very serious, and noted that there was no evidence that he is seeking to address these allegations through the [Chinese] legal system. On this basis, I formed the necessary suspicion that [the applicant] is not of good character on account of his past and present general conduct, and that he therefore does not pass the character test by virtue of s 501(6)(c)(ii) of the Act.
NATIONAL INTEREST
6. I considered 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, or are wanted to face charges for such crimes. On this basis, I was satisfied that cancellation of [the applicant’s] visa was in the national interest.
20 Under the heading “Discretion” and the sub-heading “Protection of the Australian Community”, the Minister stated that she gave “primary consideration to the protection of the Australian community, taking into account the seriousness and nature of [the applicant’s] alleged conduct, the likelihood that such conduct might be repeated and whether visa cancellation in this instance would have a deterrent effect”. As to each consideration, the Minister said:
(a) Seriousness and nature of conduct
10. [The applicant] has been accused by the [Chinese] authorities of kidnapping a 15-year-old boy and, later, killing him. This constitutes a crime that I consider to be very serious.
11. The nature of [the applicant’s] alleged conduct, in the absence of any evidence to indicate that he is attempting to rectify or dispute these allegations with [Chinese] authorities, is such that I gave this consideration great weight.
(b) Risk of recidivism
12. I considered that I had insufficient information before me to assess [the applicant’s] risk of recidivism, given that he has not been convicted of any criminal offence.
13. Accordingly I did not place any weight on this consideration.
(c) General deterrence
14. I considered that I had insufficient information before me to assess whether cancellation of [the applicant’s] visa would have a deterrent effect on others.
15. Accordingly I did not place any weight on this consideration.
21 The Minister also stated that she gave “primary consideration to the expectations of the Australian community”, concluding:
17. Australians would not want their community to be a haven for non-citizens seeking to avoid prosecution for serious crimes in another country. In this regard, I noted that there is no evidence that [the applicant] is attempting to rectify or dispute these allegations through the [Chinese] legal system.
18. In view of the serious nature of [the applicant’s] alleged offences, and given that there is no evidence that he is seeking to contest the allegations in [China], I believe that the Australian community would expect [the applicant’s] visa to be cancelled. I gave moderate weight to this consideration.
22 Finally, before stating her conclusion, the Minister noted that she gave “some weight” to that fact that: (1) the applicant “does not appear to have any family, business or social ties to the Australian community, and that [her] Department has no evidence of rehabilitation or recent good conduct”; and (2) “the possible engagement of Australia’s international obligations in relation to [the applicant], should he ultimately be returned to [China]”.
23 The Minister concluded that:
23. I considered all relevant matters including (1) the evidence set out in the issues paper and its attachments; (2) an assessment of the character test as defined by s 501(6) of the Act; (3) an assessment of the national interest; and (4) the Ministerial Direction under s 499 of the Act and decided to cancel [the applicant’s] visa.
24. In reaching my decision, I concluded that the seriousness of the charges and the expectations of the Australian community outweighed all other considerations.
24 In relation to the Minister’s subsequent decision in October 2005 not to revoke her earlier decision, a statement signed by the Minister said:
16. I have considered all representations made on behalf of [the applicant] in relation to my decision to cancel [the applicant’s] subclass 010 (Bridging A) visa under s 501(3) of the Act.
17. I have also considered all other relevant matters including (1) the evidence set out in the original issues paper and its attachments, (2) the character test as defined by s 501(6) of the Migration Act 1958, (3) Direction 21 under s 499 of that Act.
18. I have decided that:
…
(c) I AM NOT SATISFIED that [the applicant] passes the character test and, therefore, my original decision to cancel [the applicant’s] visa under s 501(3) of that Act is NOT REVOKED.
the application
25 An amended application was filed, with leave, after the hearing. This amended application reflected the case made by the applicant at the hearing on 31 July 2008. By this amended application, which was filed on 4 August 2008, the applicant seeks judicial review of the Minister’s decisions, first, to cancel his visa and, secondly, not to revoke the cancellation decision. To the extent necessary, the applicant also seeks an enlargement of time for the filing of the application.
26 The grounds upon which the applicant relies are:
(1) the decision of the Minister to cancel the applicant’s visa was made for an ulterior or improper purpose because the purpose was to extradite the applicant to China. Put another way, “[t]he available material and the circumstances of this case support an inference that the Minister was actuated by the purpose of assisting the Chinese authorities in a form of disguised extradition”.
(2) there was no evidence to support the finding that the applicant did not pass the character test. At most, there were allegations of criminal conduct unsupported by evidence.
(3) the Minister took into account an irrelevant consideration that there was no evidence that [the applicant] was seeking to address these allegations through the [Chinese] legal system.
(4) the Minister’s decision was so unreasonable that no reasonable decision-maker would have made it because the Minister took into account and relied heavily on the fact that there was no evidence that [the applicant] was seeking to address these allegations through the [Chinese] legal system.
(5) The Minister could not, on any reasonable basis, have reached the decision that the applicant was not of good character.
27 The applicant did not pursue an earlier posited denial of natural justice/procedural fairness ground.
THE APPLICANT’S SUBMISSIONS
28 The applicant argued, first, that, on the material before the Court, there was “a proper basis for an inference that when the Minister made the decision to cancel the applicant’s visa, [the Minister] did so with the intent of returning him to face criminal charges in China”. If this were the Minister’s purpose, then, so the applicant submitted, it was an improper purpose.
29 The applicant relied on the following factors as providing the basis for inferring that the Minister’s purpose was to return the applicant to China to meet the charges against him.
(a) At the time of the Minister’s decision, there was no extradition treaty between China and Australia.
(b) In the Minister’s written statement of reasons, it was noted four times that the applicant had not sought to address these allegations through the [Chinese] legal system.
(c) The decision to cancel the applicant’s visa was “solely based on the outstanding alleged charges”.
(d) The Minister considered, as a relevant matter, that Australia could not be seen to provide, in the Minister’s words, “a safe haven for people who have committed serious crimes in another country, or are wanted to face charges for such crimes”.
(e) The decision to cancel the applicant’s visa was based on “mere allegations without any documentary foundation or proof, such as in the nature of an authenticated or signed warrant, charge sheets, witness statements, forensic evidence etc”.
(f) China had requested “the applicant’s removal/extradition to face the alleged criminal charges”.
(g) The decision to cancel the applicant’s visa was made, in part, on the basis of present conduct, that is, the applicant’s failure to address the allegations through the Chinese legal system.
(h) The Minister personally cancelled the applicant’s visa immediately after the Tribunal’s decision setting aside the decision to cancel the applicant’s visa under s 116(1)(e) of the Migration Act. In its reasons for decision, the Tribunal had specifically noted that: (1) the charges against the applicant were serious, but that these were no more than allegations against the applicant, which he had denied; (2) Australia had done nothing to facilitate removal of the applicant to China, although aware of the allegations since 1997; and (3) there was neither an extradition request nor evidence justifying such an order.
(i) Some time prior to the Minister’s decision to cancel the applicant’s visa, the executive government had undertaken “an international treaties obligations assessment”.
The applicant argued that, since there was evidence justifying an inference of improper purpose, then the “onus … shifts to the Minister to disprove the purpose”.
30 Secondly, the applicant argued that “[t]he decision that the applicant was not of good character was made on the basis that he had outstanding or unresolved charges” against him and “[t]here was no evidence of any outstanding or unresolved charges”. Instead, according to the applicant, there were merely “allegations supported by scant material of a hearsay nature and unsourced”.
31 Thirdly, the applicant contended that the Minister took into account an irrelevant consideration when referring, as she did, to the fact that that there was no evidence that the applicant was seeking to address the allegations against him through the Chinese legal system. The applicant argued that this consideration was irrelevant to the Minister’s consideration of the character test and to the exercise of discretion.
32 The applicant contended that there could be no “positive expectation or obligation … to contact the prosecuting country in relation to an outstanding prosecution”. The applicant submitted that such an obligation “would be unfair and unduly harsh, particularly in light of the circumstances”, including that: (1) the applicant had “previously represented that China has a … system of corruption, abuse and unaccountability”; (2) the allegations against him “date back to 1996 and the applicant was first made aware of them in 2004”; (3) the applicant had “not been provided with any brief of evidence or, at the very least, charge sheets”; (4) the applicant had consistently denied his involvement in the alleged crimes; and (5) the applicant had been in immigration detention for the past several years.
33 The applicant sought such extensions of time as were necessary, although conceding that he had given no explanation for the delay. The applicant argued that, notwithstanding the dismissal of his previous application for judicial review, there were special circumstances justifying judicial re-examination of the Minister’s decisions.
RESPONDENT’S SUBMISSIONS
34 The respondent argued that the Court should not enlarge the time limits. The respondent submitted that the two years’ delay between the making of the Minister’s second decision in October 2005 and the commencement of this proceeding in the High Court in October 2007 was a “considerable” one, which had not been explained.
35 The respondent contended that there were no special circumstances that would justify the Court in holding that the applicant was not estopped from bringing the claims the subject of this application.
36 The respondent submitted that the applicant had not made out his case on improper purpose. The respondent argued that:
Provided the purpose of an exercise of power under these provisions remains to regulate … the entry and presence of aliens in Australia, the fact that exercises of power under these provisions might also take into account other considerations, including the reputation of Australia, will not bring such exercises outside the subject matter, scope and purposes of these provisions and the Act.
… The consideration of Australia being used or being seen to be used as a safe haven was a matter going to the regulation of aliens’ entry and presence in Australia, and was a consideration within the scope of the provisions and the Act.
37 The respondent submitted that the Minister’s reasons showed that she was actuated by her assessment of the Australian community’s expectation that the bridging visa should be cancelled, and not by “the purpose of complying with a request from the [Chinese authorities] to surrender the Applicant”. This was, so the respondent said, a proper consideration, which demonstrated a proper purpose.
38 The respondent contended that the existence and contents of the Interpol Red Notice meant that the no evidence ground must fail. The respondent further submitted that s 501 of the Migration Act conferred a broad discretion, which entitled the Minister to have regard to the matters mentioned in her reasons. Further, the respondent argued that “[t]he contents of the Interpol Red Notice [were] a probative basis for the finding of reasonable suspicion that the Applicant did not pass the character test, and a basis for the exercise of discretion against him”. The respondent further submitted that:
The observations of the Minister are not to be judged through a prism of criminal law procedures concerning the Crown’s burden of proof. The question is not whether the reasoning process was ‘unfair or unduly harsh’, but whether there was a probative basis for the decision. The Interpol Red Notice provided such a basis.
39 In supplementary contentions filed with leave, the respondent submitted that it was not open to the applicant to rely on the Wednesbury unreasonableness ground in challenging the anterior process by which the Minister formed her satisfaction of reasonable suspicion that the applicant did not pass the character test, because this ground was directed to the outcome of the discretion and, in this case, it was plainly open to a reasonable decision-maker to cancel the applicant’s visa on the basis of the Interpol Red Notice and the arrest warrant. Further, the respondent argued that the applicant’s failure to contests the allegations was a probative matter in relation to each of two particular factors informing the exercise of the Minister’s discretion: (a) the seriousness and nature of the allegations; and (b) community expectations.
CONSIDERATION
40 I commence this discussion by assuming, for the moment, that the applicant could overcome any expired time limits and the estoppel problem, and turn to the merits of his application. At the end of these reasons, I examine whether this assumption is correct.
Ground 1 – Improper purpose
41 The applicant’s improper purpose argument was solely directed to the Minister’s decision under s 501(3) to cancel the applicant’s visa. The applicant’s argument was, presumably, that, if this decision were vitiated by an improper purpose, then neither it nor the Minister’s subsequent decision under s 501C(4) not to revoke it would stand. Alternatively, perhaps, the applicant assumed that, if the Minister had an improper purpose in making the first decision, the Minister’s purpose was the same in making the subsequent decision. It is unnecessary to explore whether these assumptions should be accepted, because I would reject the case the applicant seeks to make as to improper purpose.
42 The nature of the power that s 501(3) confers must be borne steadily in mind. Under s 501(3) of the Migration Act, the Minister may cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the character test; and the Minister is satisfied that the cancellation is in the national interest. A visa-holder does not pass the character test if, having regard to “the person’s past and present general conduct”, the person is not of good character: see s 501(6)(c)(ii).
43 In June 2005, the Minister stated that she reasonably suspected that the applicant did not pass the character test, because, having regard to the applicant’s past and present conduct, the applicant was not of good character. The Minister’s statement of reasons made it clear that the Minister reached this conclusion having regard to the fact that: (1) the Tianjin Public Security Bureau had issued an arrest warrant for the applicant in May 1997; (2) an Interpol Red Notice had been issued for the applicant’s arrest in March 2004, stating that the applicant was wanted for the kidnap and killing of a 15-year-old boy; (3) further information about the applicant’s character had been received (which was protected under s 503A of the Migration Act); and (4) General Direction No 21 stated in [1.10] that, in the absence of countervailing factors, a non-citizen was not of good character if he was the subject of unresolved charges involving serious offences. The Minister assessed the applicant’s alleged conduct as “very serious” and noted there was “no evidence” that he was seeking “to address these allegations through” the Chinese legal system.
44 It was clearly open to the Minister to consider each of the facts to which her reasons referred and to assess the conduct alleged against the applicant as “very serious”. The applicant did not challenge the effect of [1.10] of General Direction No 21, being a direction issued under s 499 of the Migration Act. If the Minister had been aware that the applicant had sought to address the allegations via the Chinese legal system and had taken this fact into account, it could scarcely be said that the Minister had acted improperly in so doing. It is, therefore, difficult to maintain (as the applicant does) that the Minister acted improperly in merely noting that the applicant had done nothing of this kind. Moreover, in this context, it does not appear that this “noting” indicated that the noted matter weighed heavily against the applicant. The “noting” might signify that little could be drawn from the applicant’s conduct in this regard. Perhaps, the most that the noting indicated was that the applicant’s response to the allegations was not a factor positively militating in his favour. This “noting” provides no basis for the inference as to improper purpose that the applicant would have the Court draw.
45 The terms of s 501(3) also required the Minister to have regard to whether cancellation was in the national interest. Absent anything in the statutory context that might limit the conception, national interest is a very broad conception indeed, which is ordinarily given content by the executive. The Minister concluded that cancellation was in the national interest because she “considered 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, or are wanted to face charges for such crimes”. The damage to Australia’s international reputation that might result from allowing a non-citizen to remain in the country plainly falls within the ordinary conception of national interest. An essential purpose of a power such as s 501(3) confers is to regulate the entry into, and presence in, Australia of non-citizens: see Migration Act, ss 4(1) and 4(4). If (as in this case) the purpose of the exercise of the power is to bring to an end a non-citizen’s presence in Australia, by reference to the very kind of matter to which the provision directs attention, the proposition that the exercise of power was for a purpose other than the statutory purpose fails.
46 The Minister’s reasons show that there were two considerations to which she gave greatest weight in exercising her discretion: (1) the protection of the Australian community; and (2) the expectations of the Australian community. In connection with the former matter, the Minister considered, amongst other things, the seriousness and nature of the applicant’s alleged conduct. In connection with the latter matter, the Minister sought to articulate community expectations. It was plainly open to the Minister to take this approach. The applicant relies on the Minister’s articulation of community expectations, which after stating Australians would not want their community to be a safe haven for non-citizens seeking to avoid prosecution, again “noted” that there was “no evidence” that the applicant was “attempting to rectify or dispute these allegations through the [Chinese] legal system”. The applicant also relies on the fact that the Minister made the same comment after again referring to the “very serious” nature of the conduct alleged against the applicant. In this regard, however, I would repeat my observations in [45] above. As indicated above, perhaps the most that this noting indicates is that the applicant’s response to the allegations cannot amount to a factor positively militating in his favour. It provides no basis for the inference as to improper purpose that the applicant would have the Court draw.
47 As the respondent acknowledged, the Minister doubtless knew that, if the applicant were removed from Australia, he would be returned to China since he was a citizen of that country. It might reasonably be assumed that, on his return, he would be arrested and face the charges to which the Interpol Red Notice referred. It does not follow from this, however, that the Minister’s purpose in cancelling the applicant’s visa under s 501(3) was to effect his extradition to China. Unless it can be said that the Minister’s purpose in exercising power under s 501(3) was to bring the applicant to justice in China, the exercise of power was not an improper one: see Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 731 per Wilcox and French JJ. In Schlieske 84 ALR at 731, a case concerned with the lawfulness of a Ministerial deportation order, their Honours said:
The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act … But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country. At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition.
48 The reasons that the Minister gave for the decision to cancel the applicant’s visa under s 501(3) do not provide any sufficient basis for an inference of improper purpose. The cogency and weight of the material before the Minister was for the Minister to assess. Provided there was a probative basis for the decision, it is not open to the Court to second-guess the Minister in this regard and, in so doing, impute an improper purpose. Further, the fact that the Minister’s decision followed almost immediately on the decision of the Migration Review Tribunal cannot be regarded as indicative of improper purpose since the Minister’s powers under s 501 of the Migration Act are separate and distinct from those of the Tribunal: see Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408-09 per Heerey, Lindgren and Emmett JJ, approved in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 535 per Gleeson CJ and Gummow J; also 565 per Hayne J. The applicant’s reference to “an international treaties obligations assessment” is, as the respondent observes, irrelevant in the present connection.
49 For the reasons stated, even if the applicant passed the threshold difficulties of delay and estoppel, I would reject the first ground that the applicant advanced.
Grounds 3 and 4 – Irrelevant Consideration and Unreasonableness
50 These two grounds both focussed on the fact, referred to already, that the Minister’s reasons for her decision to cancel the applicant’s visa under s 501(3) “noted”, on three occasions, that there was “no evidence” that the applicant was seeking to address the allegations as to his conduct in kidnapping and killing a child “through the [Chinese] legal system” (see [5], [17], [18]) and, on a fourth occasion (see [11]), referred to the absence of this evidence in the context of the weight to be given to the seriousness of the alleged conduct. Accordingly, I deal with these two grounds together.
51 The argument for the applicant focussed on the asserted fact that the applicant had no positive obligation to contact the Chinese prosecuting authorities; the time that had elapsed since the issue of a warrant for his arrest and his being made aware of the allegations against him; his position as an immigration detainee; his denials; and the lack of “a brief of evidence or charge sheets”. If the applicant’s failure was to take up the matter with the relevant Chinese authorities was not irrelevant, then, so the applicant said, it was “of no probative value” and, thus, the consideration was “unreasonable”. I would reject these submissions.
52 Section 501 of the Migration Act confers a very wide discretion, which permits the Minister to take into account a variety of matters, providing they are within the subject-matter, scope and purpose of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 per Kiefel and Bennett JJ; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at 310 per Tamberlin, Sackville and Stone JJ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at 595 per Ryan, Lander and Crennan JJ; and Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402 at 423 per Ryan and Tamberlin JJ. In exercise of the discretion that s 501 confers, the Minister may consider such matters as the protection of the community and community expectations. As the discussion concerning ground 1 shows, the Minister had a basis for regarding as relevant the fact that the applicant had not attempted to dispute the allegations with the authorities in China. The consideration was not irrelevant in the sense that it did not lie within the subject-matter, scope and purpose of the statutory power. It was for the Minister to determine whether she would have regard to the consideration and, if so, how much weight should be given to it.
53 For much the same reason, it cannot be said to have been unreasonable in the Wednesbury sense for the Minister to refer to the fact that the applicant had not sought to dispute the allegations with the authorities in China, assuming for the moment that Wednesbury unreasonableness might cover such a complaint as the applicant makes here. This is not to say that the applicant had a positive legal duty to take the matter up with the authorities. This would go too far. As indicated above, the point being made by the Minister is a narrow one. It may have been a fact militating in his favour had the applicant sought to contest the allegation within the Chinese legal system. The applicant had not done so and, therefore, this circumstance could not assist him. It was, as I have said, open to the Minister to take this approach.
54 Further, the Wednesbury unreasonableness ground, as stated by Brennan CJ in Kruger v The Commonwealth (1997) 190 CLR 1 at 36, relies upon the proposition that “when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”: see also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650 per Gummow J. Where a body fails to act in this way, the body acts beyond power. I am inclined to accept that, as the respondent submitted, the applicant’s challenge is directed to a strand in the process of the Minister’s reasoning, as opposed to the actual exercise of discretion. That is, the nature of the applicant’s challenge is not one that falls within the principle of Wednesbury unreasonableness.
55 In relation to these irrelevant consideration and unreasonableness grounds, the applicant raised three other subsidiary arguments. First, a question was raised as to whether the Minister had proper regard to the applicant’s “past and present general conduct” as s 501(6)(c)(ii) of the Migration Act required him to do. The Minster’s reasons for deciding to cancel the applicant’s visa made clear that she did. It will be recalled that the Minister stated that she considered the applicant’s alleged (past) conduct to be very serious and noted that there was no evidence that he was (presently) seeking to address these allegations within the Chinese legal system. The fact that, so far as the Minister’s decision was concerned, the most significant conduct was the applicant’s past conduct does not detract from this conclusion.
56 Secondly, the applicant contended that the Minister’s approach cast a positive burden of proof on him. There was no burden of proof as such cast on the applicant. What the applicant complained of was the product of the statutory regime. Under s 501(3), the discretion to cancel a visa arises when the Minister “reasonably suspects” that the visa-holder does not pass the character test (as set out in s 501(6)). Section 501C(4) then operates so as to require a person whose visa has been so cancelled to satisfy the Minister that the person passes the character test before the discretion to revoke the cancellation decision is enlivened. The applicant in this case failed to satisfy the Minister that he passed the character test.
Grounds 2 and 5 – No evidence or no reasonable basis for finding or deciding that the applicant did not pass the character test
57 These two grounds covered essentially the same argument and, accordingly, I also deal with them together. As noted above, these grounds relied on the applicant’s argument that there was no evidence to support the Minister’s finding as to character. I would reject these grounds for the following reasons.
58 First, the applicant’s argument disregarded the fact that, under s 501(3), the Minister was merely required to form a “reasonable suspicion” that the applicant did not pass the character test. The contents of the Interpol Red Notice provided a legitimate basis for this finding. The Interpol Red Notice referred to a “charge” of kidnapping and murder. Secondly, the applicant sought to assess the Minister’s exercise of discretion under s 501(3) by reference to principles applicable within the Australian criminal system. An assessment of this kind is inappropriate in the present context, which is concerned with an exercise of Ministerial discretion to cancel a visa, having regard to considerations disclosed to the Minister in the course of administering the Act. Procedures and standards applicable under the Australian criminal law are inapplicable in this context.
59 For the foregoing reasons, I would reject the challenge to the Minister’s decisions that the applicant sought to make.
Estoppel
60 As the respondent contended, however, the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 was applicable to this proceeding and, unless there were special circumstances shown, the applicant was estopped from bringing this further judicial review proceeding.
61 It will be recalled that the applicant had previously sought judicial review of the Minister’s cancellation and non-revocation decisions in the Federal Magistrates Court on the ground that the decisions disclosed jurisdictional error in that the Minister: (1) failed to take into account a relevant matter; and (2) breached the rules of natural justice. Further, the applicant alleged jurisdictional error in that:
Given the circumstances surrounding the allegations against the Applicant and the absence over a seven and a half year period of any attempt to execute the warrants or initiate extradition proceedings, each of the decisions amounted to a misuse of the cancellation power.
62 A Federal Magistrates dismissed the judicial review application on 26 May 2006, and the applicant did not seek to appeal against the judgment. In the circumstances, the Anshun principle applied: see Anshun 147 CLR 589 at 602. The applicant submitted, however, that he ought not be precluded from raising new grounds of judicial review as there were “special circumstances” within the meaning of the Anshun principle to justify him doing so.
63 These special circumstances included that:
(a) There was no special disadvantage for the respondent but there was a significant adverse consequence for the applicant, being “a real risk to his life and liberty”.
(b) The Minister did not take into account the applicant’s concerns, including his complaints about the application of s 503A, although the applicant had raised them with the Minister.
(c) There was a public interest in ensuring that the process of cancellation was a fair one. In this case, the Minister’s decision was vitiated as a “disguised extradition” or for unreasonableness.
(d) The Minster and/or her department became aware of these serious allegations in 1998 but they were not put to the applicant until 2004.
(e) The applicant had unsuccessfully sought redress through other legal avenues.
(f) The applicant had been in immigration detention since May 2005 and had been diagnosed as having a major depressive disorder.
64 For the following reasons, I consider that this submission should be rejected. First, as the Court said in Wong v Minister for Immigration and Indigenous Affairs (2004) 146 FCR 10 at 20:
There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the executive government and its representatives, but only to individuals. This is because the executive is a respondent by force of statute or of the Constitution and is not subject to the same psychological burden that may weigh on individual litigants; they cannot be “vexed” in the same way by instigation of subsequent proceedings. That may be a more appropriate basis, namely that of accepted public policy, to ensure that representatives of the executive government cannot rely on the principle of Anshun estoppel to frustrate, in effect, the intended legislative mandate. However that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action.
65 Secondly, the grounds of review upon which the applicant would seek to rely were available to him when the Federal Magistrate heard the earlier proceeding. There was no relevant uncertainty in the law, which might explain and justify the failure to raise them at the earlier time: compare BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [31]-[37] per Carr, Tamberlin and Conti JJ. Further, although the applicant’s written submissions questioned the application of s 503A, the applicant abandoned this argument at the hearing: see also Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 at [72]-[91] per Jacobson and Bennett JJ. It is also to be borne in mind that, in the Federal Magistrates Court, although not the subject of oral submissions, the applicant’s amended application included a ground that resembled the “disguised extradition” ground, which the applicant sought to raise in this proceeding (see [61] above).
66 Thirdly, I do not consider it was open to the applicant to attribute fault to the respondent on account of the respondent’s alleged delay. As the factual outline above discloses, the Department was unable to locate the applicant for the four years prior to his meeting with the Victoria Police in February 2004. In any event, I accept that any delay on the respondent’s part had no bearing on the applicant’s failure to raise the present grounds in his previous judicial review proceeding. Further, the applicant had legal representation in the Federal Magistrates Court proceeding, a factor which militates the relevance of arguments based on his immigration detention and alleged depression. The fact that the applicant had sought and failed to achieve a resolution of his immigration status that was favourable to him had little bearing and did not constitute a special circumstance.
67 Accordingly, the applicant did not, in my view, show special circumstances and he is estopped from bringing the claims that are the subject of the present application.
Extension of time
68 Given that the applicant is estopped from bringing this application, it is probably unnecessary to say much about the time limits made applicable by the order remitting the proceeding to this Court. The applicant applied in the High Court for orders to show cause why writs of certiorari, prohibition and mandamus should not issue, although he did not include a claim for mandamus in his amended application filed on 4 August 2008. The High Court Rules 2004 relevantly limit the time for making application for certiorari and mandamus. Rule 25.06.01 provides that an application for an order to show cause why a writ of certiorari should not issue must be made within six months after the date of the relevant judgment, order, conviction or other proceeding. Rule 25.07.2 provides that an application for an order to show cause why a writ of mandamus should not issue to a judicial tribunal must be made within two months of the date of the refusal to hear or within such time as is, under special circumstances, allowed by the Court or a Justice. Assuming that the time limits in rule 25.06.01 and 25.07.2 apply (see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114 at 120 indicating that r 25.07.2 does not), they may be enlarged under rule 4.02.
69 The application was made in the High Court some two years after the Minister made her decision not to revoke her cancellation decision. The applicant conceded that he had given no satisfactory explanation for the delay: see Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495 per McHugh J. Further, the applicant did not proffer any explanation as to why the grounds pursued in this proceeding were not pursued in the earlier proceeding in the Federal Magistrates Court. Just as importantly, as the forgoing discussion shows, the prospects of success on the application are not such as to warrant an extension of time. An extension of time for seeking relief of this kind “can only be granted if it is necessary to do justice between the parties”: see Marks 177 ALR at 495. An extension of time is not necessary to do justice in this case. Accordingly, I would refuse the application for an enlargement of time.
DISPOSITION
70 For the reasons stated, the application should be dismissed, with costs. Application to enlarge time should also be refused.
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I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 5 December 2008
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Counsel for the Applicant: |
Mr J Montgomery SC with Ms N Karapanagiotidis |
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Solicitor for the Applicant: |
Asylum Seeker Resource Centre |
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Counsel for the Respondent: |
Mr P Gray |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
31 July 2008 |
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Date of Judgment: |
5 December 2008 |
