FEDERAL COURT OF AUSTRALIA
FUD18 v Minister for Home Affairs [2020] FCA 48
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The judgment not be published beyond the parties until further order.
3. The parties have until 4:00pm on 7 February 2020 to advise the Court of any orders for redaction sought.
4. Unless either party applies by 4:00pm on 7 February 2020 for a different order with respect to costs, the applicant pay the respondent’s costs.
5. If either party applies for a different order as to costs in accordance with order 4:
(a) the party applying for such an order file with the application for costs:
(i) a submission of not more than 2 pages identifying the order sought and why it is contended such an order should be made;
(ii) any evidence proposed to be relied upon;
(b) the party against whom such an order is sought file within 3 days of receipt of the application:
(i) a responding submission of not more than 2 pages; and
(ii) any evidence relied upon.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THAWLEY J:
BACKGROUND
1 The applicant is a Vietnamese citizen. On 8 September 2000, the applicant’s wife was granted a subclass 126 Independent visa by the Australian Embassy in Ho Chi Minh City. The applicant and his daughters were granted the same visas as members of the family unit. They came to Australia shortly thereafter.
2 The applicant’s wife and two daughters remained in Australia until they were granted Australian citizenship on 22 September 2004. The applicant did not become an Australian citizen. The applicant spent the majority of his time in Vietnam where he was a senior executive in a large State-owned corporation. He had been appointed a director of Vinashin Finance Company (VFC) in March 2020.
3 After being granted citizenship in 2004, the applicant’s wife and youngest daughter returned to Vietnam to live with the applicant. The elder daughter remained in Australia.
4 The applicant’s visa expired on 8 September 2005.
5 The applicant was appointed as the General Director of VFC in November 2005. After a restructure, he was appointed in June 2006 as a member of the Board of Directors and the Head of the Supervisory Board of the Vietnam Shipbuilding Industry Group by the Prime Minister of Vietnam. He was appointed as the Chief Financial Officer on 15 June 2009.
6 The applicant departed Vietnam on 28 July 2010 and returned to Australia on 30 July 2010 on a subclass 456 Business (Short Stay) visa. His wife and younger daughter came with him. The family have lived permanently in Australia since that time.
7 The applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) visa on 24 August 2010 and was granted a Bridging A visa on the basis of that application.
8 On 18 February 2011, the Investigative Security Agency of Vietnam issued an arrest warrant for the applicant. An Interpol Red Notice (IRN) was published in relation to the applicant on 11 March 2011. The IRN included:
FUGITIVE WANTED FOR PROSECUTION
1. IDENTITY PARTICULARS
[The applicant was identified]
2. JUDICIAL INFORMATION
SUMMARY OF FACTS OF THE CASE: VIETNAM, Hanoi, from 01 January 2005 to 28 July 2010: While being the financial Director of Vinashin Corporation, [the applicant] had activities violating the State’s regulation on economic management. It caused serious consequence to his Corporation (State Company). After committing crime, he fled away. Consequently, [the applicant] is wanted by the Police of Vietnam for deliberately acting against the State’s regulations on economic management, causing serious consequences (stipulated in Article 165 – Criminal Code of Vietnam).
ADDITIONAL FACTS OF THE CASE: N/A
ACCOMPLICES: N/A
ARREST WARRANT OR JUDICIAL DECISION 1
CHARGE: Deliberately Acting Against the State’s Regulations on Economic Management, Causing Serious Consequences
LAW COVERING THE OFENCE: Article 165 – Criminal Code of Vietnam
MAXIMUM PENALTY POSSIBLE: 20 years. Imprisonment
TIME LIMIT FOR PROSECUTION OR EXPIY DATE ARREST WARRANT: None
ARREST WARRANT OR JUDICIAL DECISION HAVING THE SAME EFFECT: No.
68/ANDT, issued on18 February 2011 by the investigative security agency of Vietnam in Vietnam
Name of signatory: [The applicant’s] Copy of Arrest Warrant available at the General Secretariat in the Language used by the Requesting Country.
3. ACTION TO BE TAKEN IF TRACED
LOCATE AND ARREST WITH A VIEW TO EXTRADITION
The country at the request of which the present notice has been published has given assurances that extradition will be sought upon arrest of the person, in conformity with its national laws and/or the applicable bilateral and multilateral treaties.
PROVISIONAL ARREST
For the country at the request of which the present notice has been published, this Red Notice is to be treated as a formal request for provisional arrest. Please apply provisional arrest, in conformity with national laws and/or the applicable bilateral and multilateral treaties.
Immediately inform INTERPOL Hanoi and the ICPO-INTERPOL General Secretariat that the fugitive has been found.
9 Although the IRN was issued on 11 March 2011, it is not clear exactly when the applicant became aware that the IRN existed and I infer that he did not know the content of it until much later, as set out below.
10 On 20 April 2011, the applicant lodged an application for a Return (Residence) (Class BB) Five Year Resident Return (subclass 155) visa (subclass 155 visa). This application was made on the basis that it was a “more logical application to make given [the applicant’s] prior permanent residence status”.
11 On 29 May 2018, over seven years after his third visa application had been lodged, the applicant filed an application in the Federal Circuit Court of Australia seeking relief including:
2. A Declaration that the delay in considering and finalising the application a Return (Residence)(class BB) Five Year Resident Return (subclass 155) visa lodged with the Sydney office of the Respondent on 20 April 2011 has been unreasonable
…
4. A WRIT OF MANDAMUS compelling the Respondent to consider and decide the application a Return (Residence)(class BB) Five Year Resident Return (subclass 155) visa lodged with the Sydney office of the Respondent on 20 April 2011 according to law.
12 The grounds of the application included:
1. The Respondent has committed error of laws by failing to consider and decide the visa applications lodged by the Applicant on 24 August 2010 and 20 April 2011 as required by section 47 of the Migration Act 1958 (“the Act”), and by failing to make decisions on the applications as required by section 65 of the Act.
Particulars
…
f. The Act does not specify any period of time within which a valid visa application must be processed. However, absent a reasonable explanation periods of 7 years and 8 months (Partner visas) and 7 years (Resident Return visa) are grossly unreasonable in the circumstances of these cases.
13 The commencement of the Federal Circuit Court proceedings evidently prompted action. On 25 June 2018, a delegate of the Minister notified the applicant of his decision to refuse the application for the grant of the Partner visas, namely the Partner (Temporary) (Class UK) (Subclass 820) visa and the Partner (Residence) (Class BS) (Subclass 801) visa.
14 On 28 June 2018, a delegate of the Minister wrote to the applicant advising him that the Minister intended to consider refusing to grant the subclass 155 visa under s 501(1) of the Migration Act 1958 (Cth) (First Notice) on the basis that:
The Department of Home Affairs holds information about your criminal history listed at the end of this notice, which suggests that you may not pass the character test by virtue of s 501(6)(h) of the Migration Act.
15 The applicant’s solicitor wrote to the solicitor for the respondent on 25 July 2018, noting that the Minister had not provided “any evidence obtained from Interpol to the effect that there is an Interpol notice in place in relation to [the applicant]” and seeking withdrawal of the First Notice on the basis that:
… at least one of the jurisdictional facts demanded by s 501(6)(h) of the Migration Act 1958 … is not present and as such there is no lawful basis upon which an adverse decision under this power could be made against our client.
16 On 27 July 2018, a delegate of the Minister wrote to the applicant to “re-issue” the First Notice and provide further or updated information. In the Second Notice, the Minister stated:
The Department of Home Affairs holds information received by the Australian Federal Police and Interpol that you are subject to an active Interpol Red Notice (IRN) which remains in effect. This is the same IRN referred to in the Internet media articles listed below (see enclosures). Please note that not all IRNs are approved for public dissemination and thus the relevant IRN in this case does not appear on the Interpol website.
On the basis of the active IRN, you may not pass the character test by virtue of s 501(6)(h) of the Migration Act.
17 The Second Notice also advised the applicant that, although the Department of Home Affairs could disclose the existence of an Interpol red notice, its content was protected from disclosure under s 503A of the Act. The Second Notice invited the applicant to comment on any factors he believed to be relevant to whether he passed the character test.
18 Section 501(1) contemplates that a visa applicant be afforded natural justice in respect of the question whether he passes the character test. Whilst the notices sent to the applicant were not required by the Act, they were notices which were intended to provide the applicant with an opportunity to be heard consistently with the statutory scheme.
19 Whilst the Second Notice referred to s 501(6)(h), this does not mean that the Minister is confined to a consideration of that provision for the purpose of determining the visa application. Nor does the Minister have to make a decision as soon as a response is received. It might be, for example, that other information becomes available suggesting a different reason for refusal or warranting the issue of a further administrative notice or that the Minister takes a different view with respect to information already in his possession.
20 On 10 July 2018 the Federal Circuit Court made consent orders dismissing the application which had been filed in that Court. The orders included the following notation:
The Court notes that the utility of these proceedings have ended given that since the filing of the application, officers of the respondent have finalised the applications for the Partner (Temporary) (class UK) (subclass 820) visa and a Partner (Residence) (class BS) (subclass 801) visa, and have issued a notice of their intention to finalise the application for the Return (Residence)(class BB) Five Year Resident Return (subclass 155) visa.
21 The applicant wrote to the Department on 17 August 2018 and sought further information from the Department with respect to the IRN. The letter also advised that the applicant intended to challenge the IRN, and submitted that it would be “appropriate for the Department to give an undertaking that it would not make a decision in relation to any of the issues raised in the [Notice] until after a decision has been made by the [Commission for the Control of Interpol’s Files] as to whether or not to remove the Red Notice in relation to [the applicant]”.
22 On 24 August 2018, the applicant filed the originating application which commenced these proceedings. As indicated below, this was subsequently amended.
23 On 14 September 2018, after further correspondence with the applicant’s solicitor, the Department confirmed that permission had been granted to disclose the contents of the IRN in full. A copy of the IRN was provided to the applicant. The Department invited the applicant to provide further information to satisfy the decision-maker that he passed the character test.
24 The applicant provided further information to the Department on 12 October 2018. That information included: submissions dated 12 October 2018, which included a contention that the charges made against him in Vietnam were politically motivated; a statutory declaration of the applicant made on 10 October 2018; statutory declarations prepared by family and friends addressing the applicant’s character; an expert report of Phillip Gibson dated 12 October 2018; documents relating to the applicant’s life, family and religious activities in Australia; and various items of country information, including information concerning the connection between the communist party and judiciary in Vietnam.
25 These proceedings were listed for hearing on 9 April 2019. The applicant indicated at that hearing that he was proposing to challenge the IRN and to seek to have it “deleted” by Interpol. The Minister indicated in submissions filed before the hearing that he was content not to make a decision whether to refuse the visa application having regard to s 501(6)(h) until after the applicant’s application to have the IRN deleted had been decided by Interpol. By consent, the hearing was adjourned. It was then anticipated that the process of seeking to have the IRN deleted would be complete by January 2020.
26 A notation to the orders made on 9 April 2019 read as follows:
THE COURT NOTES that the respondent has by his submissions stated that he is prepared not to decide whether to refuse the visa under s 501(1) of the Migration Act 1958 (Cth) pending the outcome of the applicant’s application to Interpol (see p 266 of the affidavit of David Prince filed on 24 August 2018), noting that the applicant’s solicitor anticipates that the application will be resolved by the end of January 2020 and assuming that the applicant’s solicitor would keep the respondent informed of the progress and resolution of that application.
27 It was common ground that Interpol deliberated on and finalised the applicant’s request for deletion of the IRN on 3 July 2019. It was common ground that the IRN is still in force.
THE RELIEF SOUGHT AND THE GROUNDS OF THE APPLICATION
28 By an amended originating application for review of a migration decision filed on 30 September 2019, the applicant sought declaratory relief and writs of prohibition and mandamus as follows:
Details of Final Relief Sought
4. A WRIT OF PROHIBITION restraining the Respondent from refusing the Applicant’s application for a Return (Residence)(class BB) Five Year Resident Return (subclass 155) visa (Visa Application) on the basis of the Notice of Intention to Consider Refusal under s501 of the Migration Act 1958 issued by a delegate of the Respondent on 27 July 2018 (“the Notice”).
4A. A WRIT OF PROHIBITION restraining the Respondent from proceeding to refuse the Visa Application on the basis that the Applicant did not meet the requirements of Public Interest Criterion 4003 prescribed by the Migration Regulations 1994.
4B. A DECLARATION pursuant to s.21 of the Federal Court of Australia Act 1976 that it is not reasonable to infer from the Interpol Red Notice 2011/13450 that the Applicant would present a risk to the Australian community or a segment of that community.
4C. A DECLARATION pursuant to s.21 of the Federal Court of Australia 1976 that the Applicant’s non-conformance with Public Interest Criterion 4003 prescribed by the Migration Regulations 1994 may not be taken into account in determining the Visa Application.
5. A WRIT OF MANDAMUS issue requiring the Respondent to determine the Visa Application.
6. An ORDER that the Respondent pays the Applicant’s costs.
29 The applicant did not seek the issue of a writ of mandamus in the absence of the issue of the writ of prohibition sought by [4] of the amended originating application. For understandable reasons, the applicant did not want to require the Minister to make a decision unless he also obtained relief preventing the Minister from refusing the visa application on the basis of s 501(6)(h) and the IRN.
GROUNDS 1 AND 2
30 Grounds 1 and 2 were relevant to the relief sought in [4] and [4B] of the amended originating application. The applicant’s case was that a decision to refuse the visa on the basis identified in the Second Notice would necessarily involve jurisdictional error or would be legally unreasonable. Grounds 1 and 2 were:
1. Any decision to refuse the Visa Application on the basis of the Notice would involve an error of law constituting a jurisdictional error.
Particulars
a. The Notice was based only on one ground, being s 501(6)(h) of the Migration Act 1958 (“the Act”) which requires the existence of two elements, being:
i. An Interpol notice is in force in relation to the Applicant; and
…
iii. It is reasonable to infer from the Interpol notice that the Applicant would present a risk to the Australian community or a segment of that community.
b. An Interpol Red Notice in relation to the Applicant file number 2011/13450 (IRN) was published on 11 March 2011.
c. Any inference from the IRN that the Applicant would present a risk to the Australian community or a segment of that community would be unreasonable.
2. Any decision to refuse the Visa Application on the basis of the Notice would be legally unreasonable.
Particulars
a. The Applicant repeats the particulars from Ground 1.
b. In addition, the Applicant returned to Australia in 2010, the matters alleged in the Notice were known to the Respondent from at least September 2011 and no action was taken by the Respondent prior to proceedings being commenced in the Federal Circuit of Australia [sic] on 29 May 2018 seeking an Order for mandamus for unreasonable delay in processing that application (see SYG 1506/2018).
The applicant’s submissions
31 The applicant submitted that s 501(6)(h) must be construed strictly having regard to the “principle of legality”, referring to Potter v Minehan (1908) 7 CLR 277 at 304; Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 372-373.
32 So construed, the applicant submitted that s 501(6)(h) required that:
(1) an Interpol notice “is in force”;
(2) an inference be open that the applicant “would” present a risk to the Australian community or a segment of that community;
(3) the inference must be open “from” and only from the Interpol notice – relying upon George v Rockett (1990) 170 CLR 104 at 111;
(4) the inference must be reasonable;
33 As to the first requirement of s 501(6)(h), whilst there was a dispute about whether IRN was “in force” when the proceedings were commenced, that was no longer in issue at the time of hearing.
34 As to the remaining asserted requirements of s 501(6)(h), the applicant contended that it would not be open to, or it would be legally reasonable for, the Minister to infer from the IRN that the applicant would present a risk to the Australian community or a segment of it. The applicant submitted:
There is nothing in the IRN which is capable of supporting an inference that the Applicant would be a risk to the Australian community or any part of it. The IRN shows that the Investigative Security Agency of Vietnam has charged the Applicant with an offence the elements of which were deliberately acting against the State’s regulations on economic management causing serious consequences to a State owned corporation.
While there are references to the legal integers of the charges laid by that Agency, there is nothing which indicates in what conduct the Applicant is alleged to have engaged, nothing which indicates the standard of satisfaction reached by the Investigative Security Agency, and nothing that indicates the nature of the evidence.
The references to the legal integers of the charge provide no basis to suspect, let alone infer, that if they occurred, and if there [sic] occurrence indicated a risk of repetition and if they were repeated in Australia there would be a risk to the Australian community or any section of it. That there has been no judicial determination shows there is no basis to infer that the legal integers of the charge have occurred.
No inference rising even to the very low level of suspicion of a risk to the Australian community is open to be drawn from the IRN.
35 When asked, the applicant accepted that reference could be made to the terms of Article 165 of the Criminal Code of Vietnam which was referred to in the IRN. According to the applicant’s evidence, Article 165 relevantly provided:
1. Those who abuse their positions and/or powers to deliberately act against the State’s regulations on economic management, causing a loss of between one hundred million dong and three hundred million dong, or under one hundred million dong but the offenders have already been disciplined for such acts but repeat their violations thus causing serious consequences, shall be subject to non-custodial reform for up to three years or a prison term of between one and five years.
2. Committing the crime in one of the following circumstances, the offenders shall be sentenced to between three and twelve years of imprisonment:
(a) For self-seeking or other personal purposes;
(b) In an organized [sic] manner;
(c) Employing perfidious tricks;
(d) Causing a loss of from three hundred million dong to under one billion dong or causing other very serious consequences.
3. Committing the crime which entails a loss of one billion dong or more or other particularly serious consequences, the offenders shall be sentenced to between ten years and twenty years of imprisonment.
4. The offenders may also be subject to the confiscation of part or whole of their property, the ban from holding certain posts or doing certain jobs for one to five year [sic].
36 The applicant also accepted, when asked, that regard could be had to the regulatory regime under which Interpol notices are issued. Indeed, the applicant submitted that it would be necessary to have regard to that regime in considering the issue raised by s 501(6)(h).
Consideration
The statutory provisions
37 Section 65 provides (notes omitted):
65 Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of the same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
38 The Minister must grant a visa if he is satisfied of the various requirements of s 65(1)(a) of the Act. These requirements include that the Minister must be satisfied that “the grant of the visa is not prevented by [among other things] s 501”: s 65(1)(a)(iii). If he is not satisfied of each of the requirements of s 65(1)(a), the Minister must refuse to grant the visa: s 65(1)(b).
39 Sections 501(1) and 501(6)(h) provide:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.
40 Section 501(1) provides a discretion to refuse to grant a visa. That discretion only arises “if the person does not satisfy the Minister that the person passes the character test”: s 501(1).
41 The operation of, and interaction between, s 501(1) and s 501(6) were considered by the Full Court in Minister for Immigration and Multicultural Affairs v Godley (2005) 141 FCR 552 (Madgwick, Lander and Crennan JJ). At that time, s 501(6) only contained paragraphs (a) to (d). Their Honours stated:
[47] Whether and how the Minister exercises the discretion in s 501(1) depends upon whether the applicant for the visa or the visa holder passes the “character test” and s 501(6) provides a regime whereby a person either does or does not pass the character test.
[48] It is clear that a person does not pass the character test if any one or more of the conditions set out in paras (a), (b), (c) and (d) of s 501(6) are fulfilled. For example, if a person has a substantial criminal record, as defined by s 501(7), the person thereby does not pass the character test. Whether or not a person has such a substantial criminal record can only be determined by means of an objective finding by the Minister. Such a finding is therefore implicitly required. If the Minister makes such a determination then, clearly, the person referred to in s 501(1) could not satisfy the Minister that the person passes the character test. In those circumstances, the Minister would then have to exercise his or her discretion as to whether to refuse to grant a visa to the applicant.
[49] Thus, s 501(6) requires the Minister to consider the separate matters in paras (a), (b), (c) and (d) and to make a determination whether the person comes within the provisions of any of those paragraphs. In respect of para (c) of s 501(6), the Minister has to consider whether the person is not of good character for either or both of the reasons given in placita (i) or (ii) of that paragraph.
[50] If the Minister determines that the person is not of good character, then it must follow that the person does not pass the character test.
[51] If, on the other hand, the Minister does not decide that the person comes within any of paras (a), (b), (c) or (d) then, by force of s 501(6), the person has passed the character test. That is so because of the concluding words in the subsection “Otherwise, the person passes the character test”. It follows that, absent any determination or decision by the Minister that the person comes within any of the paragraphs of s 501(6), the person has by force of the express provisions of the subsection passed the character test.
[52] In those circumstances, the requirement of s 501(1) that the person satisfy the Minister that he or she passes the character test can require no more than the person passing the character test by reason of the terms of the section itself. Whether the applicant for the visa does or does not pass the character test is something to be determined by the Minister by reference to paras (a), (b), (c) and (d) of s 501(6).
[53] It was contended on behalf of the Minister, that no onus lies on the Minister to make any decision under s 501(6). It was argued that, in circumstances where the Minister was unsure whether a person is or is not of good character, the Minister could refuse to decide, for the purposes of s 501(6)(c), whether the applicant for the visa is or is not of good character and, in the event of such a refusal, then the applicant would not have satisfied the Minister that the applicant passes the character test, so that, in those circumstances, the Minister could, in his or her discretion, refuse to grant a visa.
[54] That argument should be rejected because it is contrary to the express terms of s 501(6). A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than by a positive finding to that effect by the Minister. If the only paragraph under consideration is para (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test.
[55] It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so, then, if that is the only matter under consideration, that person will have passed the character test.
[56] This is so notwithstanding the requirements in s 501(1) that the person concerned “satisfy” the Minister that he or she passes the character test. An applicant must satisfy the Minister in relation to factual matters relevant to the Minister’s determination of whether a placitum in s 501(6) applies. In effect, s 501(6) provides a complete statement of how the person may satisfy the Minister. The effect of that statement is that, unless a placitum in s 501(6) applies, the person is to be taken as having satisfied the Minister. A placitum in s 501(6) only applies if the Minister determines positively that it does so.
[57] In the end result, the power to refuse to grant a visa in the exercise of the Minister’s discretion only arises if the Minister is satisfied of one of the matters in paras (a), (b), (c) or (d) of s 501(6). In this case, the Minister did not make a determination that the respondent was not of good character within the meaning of para (c) or any other of those paragraphs.
42 As noted above, the “character test” in s 501(6)(h) directs attention to whether “it is reasonable to infer” from the Interpol notice “that the person would present a risk to the Australian community or a segment of that community”.
43 A number of matters might be observed about the provision. First, the issue in s 501(6)(h) arises in the overall statutory context of s 501, namely of determining whether a particular visa should be refused or cancelled. Read with s 501(1), s 501(6)(h) directs attention to whether it is reasonable to infer from an Interpol notice that, if the visa were not refused, the person would present a risk.
44 Secondly, the question whether a person would present a risk necessarily allows consideration of possibilities because it involves a consideration of what might or might not occur in the future.
45 Thirdly, the provision is not framed in terms of an inquiry into the probabilities of a person doing some specific act, for example, something harmful or otherwise contrary to the interests of the Australian community; the question is whether the person “would present a risk” to the Australian community. All other things being equal, it is more difficult to reach a conclusion that a particular risk will eventuate than that a risk is present.
46 Fourthly, the provision does not identify any specific area or topic of risk. This may be contrasted with other provisions. For example, s 501(6)(d) refers to a risk that the person would, amongst other things, engage in criminal conduct or harass a person or vilify a segment of the Australian community or incite discord or represent a danger through disruptive activities or threatening harm. Section 501(6)(d) provides:
(d) in the event the person were allowed to enter or to remain in Australia, there is a 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; or
47 Another example is furnished by s 501(6)(g) which refers to a “risk to security”. Section 501(6)(g) provides:
(g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
48 Whilst the word “risk” in s 501(6)(h) takes its meaning from the whole of the statutory context, the area of risk the subject of s 501(6)(h) is unconfined by the express words of the provision.
Has the applicant established it is not open to draw the inference in s501(6)(h) from the IRN?
49 I address first whether the applicant has discharged the onus of establishing that no person could draw the relevant inference from the IRN on the applicant’s construction of s 501(6)(h), namely that the question cannot be answered by reference to anything outside of the notice.
50 As mentioned, the applicant conceded that regard could be had to Article 165 of the Criminal Code of Vietnam and to the regulatory framework under which the IRN was issued.
51 The terms of the IRN have been set out at [8] above. The applicant also accepted the Minister could take into account an addendum to the IRN which was to be regarded as part of the IRN in force. The addendum noted that the applicant was wanted by the judicial authorities in Vietnam on the basis that he was the perpetrator of the crime of embezzling property. The addendum did not have further substantive content.
52 The question is not whether this Court would draw the inference referred to in s 501(6)(h) from the IRN. Rather, the question is whether the applicant has discharged his onus of establishing that it is not legally open for the Minister to draw such an inference.
53 It should be noted that the Minister’s decision-making is occurring in an administrative rather than judicial context. The Minister is not bound by rules of evidence such as those which operate in court proceedings to restrict the admissibility of evidence or the manner in which evidence or material might be used. It might be reasonably open in an administrative context to make findings and draw inferences from a document such as the IRN where those findings and inferences might not be available or might not have been made in a judicial context.
54 A factor which might be considered by a decision-maker in deciding whether an inference should be drawn from an Interpol notice is the regulatory framework as it relevantly applied when the Interpol notice was issued or as it applies to the notice when it is being considered.
55 Articles 82 to 84 and 86 of INTERPOL’s Rules on the Processing of Data ((III/IRPD/GA/2011) (2019) include that certain minimum data be provided, including minimum judicial data. The conditions include that red notices may not be issued in respect of certain crimes, including for example “offences originating from a violation of laws or regulations of an administrative nature”. The Rules provide that certain assurances must be given by a National Central Bureau and that the General Secretariat shall conduct a legal review of all red notices prior to their publication to ensure compliance with INTERPOL’s Constitution and Rules. Those Article provide:
Article 82: Purpose of red notices
Red notices are published at the request of a National Central Bureau or an international entity with powers of investigation and prosecution in criminal matters in order to seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action.
Article 83: Specific conditions for publication of red notices
1. Minimum criteria
(a) Red notices may be published only if the following cumulative criteria are met:
(i) The offence concerned is a serious ordinary-law crime.
Red notices may not be published for the following categories of offences:
• offences that in various countries raise controversial issues relating to behavioural or cultural norms;
• offences relating to family/private matters;
• offences originating from a violation of laws or regulations of an administrative nature or deriving from private disputes, unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized [sic] crime.
The General Secretariat shall keep, update and share with National Central Bureaus and international entities a non-exhaustive list of specific offences that fall within the above categories.
(ii) Penalty threshold:
• if the person is sought for prosecution, the conduct constituting an offence is punishable by a maximum deprivation of liberty of at least two years or a more serious penalty;
• if the person is sought to serve a sentence he/she is sentenced to at least six months of imprisonment and/or three is at least six months of the sentence remaining to be served;
(iii) The request is of interest for the purposes of international police cooperation.
(b) The General Secretariat may decide to publish a red notice where the criteria in (i) and/or (ii) above are not met if, following consultation with the requesting National Central Bureau or international entity, it considers that publication of the requested red notice would be of particular importance to international police cooperation.
(c) Several offences: if the request includes several offences, the red notice may be published for all offences that meet INTERPOL’s Rules provided that at least one offence meets the above criteria.
2. Minimum data
(a) Identity particulars:
Red notices may be published only when sufficient identifiers have been provided. Sufficient identifiers will be considered to include at least one of the following two combinations of identifiers:
(i) family name, forename, sex, date of birth (at least the year) and one of the following identifiers:
• physical description; or
• DNA profile; or
• fingerprints; or
• data contained in identity documents (e.g. passport, national identity card).
(ii) photograph of good quality with some additional data (e.g. alias, name of the parent(s), further physical description, DNA profile, fingerprints, etc.).
(b) Judicial data:
Red notices may be published only when sufficient judicial data has been provided. Sufficient judicial data will be considered to include at least:
(i) summary of facts of the case, which shall provide a succinct and clear description of the criminal activities of the wanted person, including the time and location of the alleged criminal activity; and
(ii) charge(s); and
(iii) law(s) covering the offence (whenever possible, and subject to national law or the rules governing the operation of the international entity, the requesting National Central Bureau or international entity shall provide the wording of the relevant penal provision(s)); and
(iv) maximum penalty possible, sentence imposed, or sentence remaining to be served; and
(v) reference to a valid arrest warrant or judicial decision having the same effect (whenever possible, and subject to national law or the rules governing the operation of the international entity, the requesting National Central Bureau or international entity shall provide a copy of the arrest warrant or judicial decision).
Article 84: Assurances provided by the requesting National Central Bureau or international entity
The requesting National Central Bureau or international entity shall ensure that:
(a) the authority which issued the arrest warrant or handed down the judicial decision has the necessary power;
(b) the red notice request has been coordinated with the relevant authorities responsible for extradition, and assurances have been given that extradition will be sought upon arrest of the person, in conformity with national laws and/or the applicable bilateral and multilateral treaties;
(c) if the arrest warrant has not been issued by a judicial authority, the laws of the requesting country or the rules governing the operation of the international entity provide for a mechanism of appeal before a judicial authority.
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Article 86: Legal review by the General Secretariat
The General Secretariat shall conduct a legal review of all red notices prior to their publication to ensure compliance with INTERPOL’s Constitution and Rules, in particular with Articles 2 and 3 of INTERPOL’s Constitution.
56 The applicant has not discharged the onus of establishing that it is not legally possible to conclude “from” the IRN that the applicant “would present a risk to the Australian community or a segment of that community”.
57 The IRN states the applicant is “wanted by the Police of Vietnam” and that Interpol had acted upon an “Arrest Warrant” in issuing the notice. The IRN refers to “deliberately acting against the State’s regulations on economic management, causing serious consequences” and expressly refers to “Article 165 – Criminal Code of Vietnam”. The IRN refers to a maximum penalty of 20 years imprisonment.
58 The addendum to the IRN recorded that the applicant was wanted by the judicial authorities in Vietnam on the basis that he was the perpetrator of the crime of embezzling property. The applicant submitted that it could not reasonably be inferred that the addendum was describing the same impugned conduct as that the subject of the IRN. I reject that submission. Such an inference is available from the fact that the addendum is an addendum to the IRN, rather than a new notice relating to some different allegation. The inference is also available from the content of the IRN and addendum. The applicant did not explain how an addendum to a red notice could be issued in relation to conduct different to the conduct the subject of a red notice consistently with the regulatory regime for issuing red notices.
59 Inferences can properly be drawn from the fact that a law enforcement agency in Vietnam had issued an arrest warrant relating to a crime which carried a potential term of imprisonment of 20 years, including as to the likelihood of the existence of material sufficient to permit the issue of an arrest warrant. It would be open to draw an inference that Interpol issued the IRN being satisfied that its rules and conditions for the issue of a red notice had been met. A decision-maker might take that into account in considering what inferences to draw and what weight to give those inferences. Inferences could be drawn as to the possibility or likelihood of the alleged offence in fact having occurred.
60 Inferences could be drawn about the character of a person who engaged in conduct alleged in the IRN and addendum. Inferences might be made about whether such a person might engage in that conduct again or other conduct or might engage in some form of conduct in Australia considered to present a risk.
61 A conclusion about risk can be drawn from what is accepted as having occurred, or possibly having occurred, in the past. Contrary to the applicant’s submission, the fact that the relevant asserted past events have been specifically identified and occurred in Vietnam in particular circumstances does not necessarily confine the availability of inferences to whether the same or substantially similar events would occur or make it necessarily unreasonable to reach a conclusion that the person presents a risk to Australia.
62 What inferences should be drawn is a matter for the Minister. It is not possible to say that no administrative decision-maker acting reasonably could infer from the IRN and addendum that the person would present a risk to the Australian community or a segment of that community.
63 It follows that I would not grant the relief sought in [4] or make the declaration sought in [4B] of the amended originating application even on the basis that the decision-maker is confined to answering the statutory question solely by reference to the IRN.
Is the Minister confined to an examination of the Interpol notice?
64 As mentioned, the applicant submitted that, leaving aside the qualifications identified earlier, nothing could be examined apart from the IRN in determining the relevant question under s 501(6)(h).
65 Given the view I have reached, it is not necessary to form a concluded view about whether the Minister is confined to the IRN in reaching a view about the application of s 501(6)(h). Nevertheless, recognising that the answer always turns on the particular facts, certain tentative views can be expressed.
66 As mentioned, the applicant placed heavy reliance on the decision of the High Court in George for his contention that the inference could be drawn only from the notice and not from any extraneous material. George concerned the issue of a search warrant by a stipendiary magistrate. The relevant statute required a justice to whom an application for a search warrant was made to satisfy himself that the conditions for the issue of the warrant were fulfilled. The matters which had to be “made to appear” to the issuing justice had to appear “on complaint made on oath”: at 113-114. It was held that it was not sufficient that the grounds for the issue of the warrant appeared from statements made by an applicant for the warrant otherwise than by the “complaint made on oath”; the sworn complaint had to contain sufficient facts to found the reasonable suspicion and reasonable belief: at 113-114.
67 If, on the material contained in the sworn complaint, the magistrate could not have been satisfied that the conditions were fulfilled, it was immaterial that he might have been satisfied on other material such as answers to questions from the magistrate: at 115.
68 The statutory requirement for the grounds to appear on “complaint made on oath” reflected the long-standing view of the common law that a magistrate who issued a warrant otherwise than on an information on oath was liable to an action for false imprisonment or trespass.
69 The present statutory context is not analogous to the context in George and nor is the wording of s 501(6)(h). It is sufficient to mention two points of distinction. First, s 501(6)(h) is not a provision which authorises what would otherwise be unlawful conduct or which infringes what would otherwise be a person’s rights. The applicant relied upon the “principle of legality”, submitting that a strict construction of s 501(6)(h) is to be preferred because legislation is presumed not to interfere with “fundamental” common law rights, freedoms or immunities without clear language. The right the applicant identified as engaging this principle was stated to be a “right to family and community life”, citing Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [110]. The applicant submitted that he “lives in Australia as do his wife and two adult daughters, all of whom are Australian citizens”.
70 The applicant has applied for a subclass 155 visa as he is entitled to; he does not hold that visa or have some freestanding entitlement to it. Whether the applicant is to be granted the visa depends upon the application to him of the relevant laws. Section 501(1) read with s 501(6)(h) permit refusal of a visa application on a certain basis. The applicant has not identified any accrued right or any “fundamental” common law right which those provisions might infringe.
71 Secondly, it is not reasonable to take the legislature as having intended to require a decision-maker to draw an inference of risk from a document which was not prepared for the purpose of forming a view about risk and which is not in fact directed to that topic. An Interpol notice is not drawn for the purpose of informing recipients whether the person identified in the notice presents a risk or how that person’s conduct might impact on the community of any particular country or whether the person is likely to re-offend. The purpose of the notice lies elsewhere. In George, the complaint was a document prepared specifically for consideration by a stipendiary magistrate for the express purpose of obtaining the issue of a warrant. The IRN was not prepared for the purpose of consideration under s 501(6)(h), less still to deal with the question that provision raises for consideration.
72 I also note that the submission that s 501(6)(h) must be strictly construed such that reference cannot be made to matters outside of the relevant notice has the potential to operate against the interests of people in the applicant’s position. The applicant has already contended, in responding to the Second Notice, that the charges against him were politically motivated. It is not difficult to envisage a situation in which an applicant might contend that an Interpol notice was issued because a foreign government wanted to cause harm to the person the subject of the notice. Indeed such a contention is probably implicit in what the applicant has already submitted to the Minister.
73 On the applicant’s construction of the provision, his submissions to the Minister, and the evidence which he has provided in support of them, could not be taken into account on the question of whether he passes the character test in s 501(6)(h). The applicant submitted that – once the s 501(6)(h) “gateway” was satisfied by the applicant failing the character test – the submissions and evidence to the effect that the IRN was procured for political reasons could be considered in the context of addressing the discretion in s 501(1) whether to refuse the visa.
74 In my view, that is not a sufficient answer. The discretion in s 501(1) not to refuse a visa arises only if a person does not pass the character test. The s 501(1) discretion whether to refuse a visa to a person who has failed the character test is not confined by the express terms of the subsection. Assume that a visa applicant would have passed the character test in s 501(6)(h) if the applicant’s additional material had been taken into account in considering the “gateway” provision such that the s 501(1) discretion to refuse the visa would not have arisen. Assume next that the visa applicant, not being able to have that material considered for the purposes of the “gateway” provision, puts the material forward in support of a submission that the Minister should exercise his discretion under s 501(1) not to refuse the visa, despite the applicant not passing the character test. In this situation, there might be other factors relevant to the exercise of the s 501(1) discretion which might lead the Minister to refuse the visa and which the Minister could only take into account because the applicant did not pass the character test. If the applicant had been able to have his material considered in the context of the “gateway” provision, his application could not have been refused because he would have passed the character test.
75 In my view, the legislative object is furthered by understanding s 501(6)(h) as not prohibiting a consideration of material and submissions from a visa applicant as to why it is not reasonable to infer from an Interpol notice that he or she would present a risk to the Australian community or a segment of it. This might include facts extraneous to the notice. As the Full Court noted in Godley at [56], whilst the Minister must first engage the issue, it is the “applicant [who] must satisfy the Minister in relation to factual matters relevant to the Minister’s determination of whether a placitum in s 501(6) applies”.
76 As mentioned earlier, in the course of the proceedings the applicant sought for Interpol to “delete” the IRN. Interpol (by the Commission) declined. Its reasons for reaching that decision were obtained by the Minister under a notice to produce and tendered. The reasons included:
V. FINDINGS
A. Alleged political character of the case and lack of due process
…
b) The NCB of Vietnam (NCB source of the data)
…
22. According to the NCB, on 15 February 2011, the Investigation Security Agency issued a Decision to initiate criminal proceedings against the Applicant for “Deliberately acting against the State’s regulations on economic management causing serious consequences” as prescribed in Article 165 of the Penal Code of the Socialist Republic of Viet Nam (1999), on the basis of the following actions:
- Committing a fraud while ratifying/approving the implementation and disbursement without respecting Vietnamese law for Binh Dinh Star Ship Investment Project of Binh Dinh Shipbuilding Industry Transport Joint Stock Company under the Vinashin Group, causing losses to the State of 29,5 billion Vietnamese dongs (VND).
- Committing a fraud while ratifying/approving the acceptance and making illegal payments of 10% of the value of commercial contracts signed between Vinashin Group and Jacobsen Elektra As Norway in the Construction Project of Diezel Cai Lan Thermal Power Station, Cai Lan Shipbuilding Industry Park, Quang Ninh province, under the Vinashin Group, causing losses to the State of over 70 billion VND.
- Committing a fraud while ratifying/approving the implementation and disbursement without respecting Vietnamese law for the Project to purchase Hoa Sen high-speed train of Vien Duong Transport One Member Co., Ltd, belonging to Vinashin Group, causing losses to the State of 470 billion VND.
…
c) Findings of the Commission
…
27. In reviewing the applicable criteria under the predominance test, the Commission established that the offenses as described in the Red Notice and in the judicial documents transmitted by the NCB of Vietnam (“Deliberately acting against the State’s regulations on economic management, causing serious consequences” and “Embezzling Property”), are a priori of a common law character. Furthermore, these charges appear coherent with the factual information provided by the NCB of Vietnam, and the Commission considered that sufficient elements concerning the description of the criminal activities and the possible personal effective participation of the Applicant have been provided by the source of the data.
28. Then the Commission considered that the Applicant is not himself a politician or former politician in Vietnam, but rather a high-level manager in a strategic state-controlled company. The Commission noted that the Applicant alleged links with former Prime Minister Nguyen Tan Dung, who appointed him to his position within the Vinashin Group. Yet, on the basis of the limited information provided by the Applicant, the Commission was not able to identify clearly how this weak connection to the former administration, common to all holders of high-level government-appointed positions, would have made him a likely target for any alleged political retaliation.
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30. The Commission examined the Applicant’s arguments regarding these individuals’ trial in Vietnam, and held that it is not its role to assess a country’s law enforcement or judicial system in general. It must make its determinations on the basis of specific information that sheds light on whether or not INTERPOL’s legal framework has been complied with in a particular case. In order to respect the spirit of the Universal Declaration of Human Rights while at the same time respecting the limits of the Commission’s functions, the simple assertion of possible procedural irregularities or general criticisms about the independence of the judicial system cannot rise to the level of Article 2 violations. In this case, the Commission finds that the information provided by the Applicant does not demonstrate the likelihood that a flagrant denial of his right to a fair trial could take place. Ultimately, the Applicant did not establish that the mere publication of the Red Notice (and the extension of its validity following Article 50 of the RPD), for his prosecution on the basis of a valid arrest warrant, would disproportionately affect his right to be presumed innocent until proven guilty.
31. Accordingly, even assuming that there may be some political elements around this case, the information provided is not sufficient to establish any predominance over the substantive ordinary criminal law dimension of the case and to conclude that the processing of the data concerning the Applicant would be contrary to Article 3 of INTERPOL’s Constitution.
B. Alleged lack of criminal character and quality of the data
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b) The NCB of Vietnam
35. The NCB of Vietnam confirmed the criminal character of the offence, contrarily to the Applicant’s statements which only attempt at reducing his own responsibility in the mismanagement of his company and in causing serious damage to the national budget. The NCB explained that sufficient evidence has been adduced to establish that the Applicant resorted to corrupt practices and that he obtained personal benefit from the embezzlement of money belonging to the Vinashin Group, thereby committing a criminal offence.
36. The NCB also indicated that the Investigating Security Agency of the Ministry of Public Security of Viet Nam is still working with the Department of Legal Affairs and Administrative - Justice Reform, Ministry of Public Security to prepare a full request for extradition concerning the Applicant. It confirmed its intent to request his extradition from any country where he would be located and where this would be a legally available option.
c) Findings of the Commission
37. Under Articles 3(1)(a) and 33(3) of the Statute of the Commission, the function of the Commission is to review whether the processing of data in INTERPOL’s files meets INTERPOL’s applicable legal requirements in accordance with Article 36 of INTERPOL’s Constitution. With respect to the allegation that the conduct does not constitute a criminal offence, the Commission recalled that under Article 83.1(a.1) of the RPD “Red notices may not be published for offences relating to private matters and for offences originating from a violation of laws or regulations of an administrative nature or deriving from private disputes, unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime”.
38. The Commission noted the Applicant’s statements according to which mismanagement charges have been brought against him and Vinashin Group executives while financial losses are allegedly only attributable to the economic crisis and to normal business fluctuations. The Commission underlined that it is not empowered to conduct an investigation, to weigh evidence, or to make a determination on the merits of a case, as these issues must be left to the competent national authorities to decide at trial or during extradition proceedings. On the basis of the information provided by the parties, and without making any pronouncement on the potential criminal responsibility of the Applicant, the Commission held that there is sufficient elements demonstrating the possible commission of criminal offenses, as described in the national criminal legislation of the country source of the data.
39. Finally, the Commission considered that further to Article 12 of the RPD, “data processed in the INTERPOL Information System must be accurate, relevant, not excessive in relation to their purpose and up to date”. The Commission held that the potential minor discrepancies relating to the exact evolution of functions held by the Applicant within the Vinashin Group over the period considered are insignificant for the general coherence of the summary of facts, which is necessarily and by nature an abridged and concise statement and which cannot reflect comprehensively the whole factual context of the case. Likewise, the Commission concluded that the slight inaccuracies highlighted by the Applicant concerning some identity particulars have no real consequences on the possibility to identify him or to give effect to the data in relation to the purpose for which it was registered.
FOR THESE REASONS, THE COMMISSION
Decides that the data challenged are compliant with INTERPOL’s rules applicable to the processing of personal data.
77 In my view, the Minister is not precluded from taking into account a decision of this nature in determining the issue raised by s 501(6)(h). The statutory task is to determine whether it is reasonable to draw an inference “from” a notice which is in force. An inference can be drawn from a notice, notwithstanding the fact that other material is also taken into account. I do not read s 501(6)(h) as meaning that the inference must be drawn only from the notice and that any other information must be disregarded. The Commission’s decision for not deleting the notice is relevant and probative material.
78 What notice the Minister might need to give to the applicant if he were to take the Commission’s decision into account in the present circumstances is a separate matter which does not arise for determination in these proceedings.
Conclusion on grounds 1 and 2
79 It follows that grounds 1 and 2 are not made out.
GROUND 3
80 The relief sought in [4A] and 4[C] of the amended originating application was supported by ground 3, which was in the following terms:
3. Any decision to refuse the Visa Application on the basis that the Applicant did not meet the requirements of Public Interest Criterion 4003 as prescribed by the Migration Regulations 1994 would involve the taking into account of a mandatorily irrelevant consideration.
Particulars
a. Compliance with PIC 4003 by the Applicant for a Return (Residents) (Class BB) Five Year Resident Return (Sub-Class 155) Visa was not a criterion for the grant of such a visa.
81 An email dated 26 June 2018 recorded that the visa application had been pending since 20 April 2011 and that the applicant met the requirements for the grant of the visa.
82 On the same day, a second email noted that the applicant’s case was “sensitive”, that the applicant was implicated in a corruption case in Vietnam which was the subject of the IRN and that the applicant had initiated legal action against the Department due to the delay in progressing his visa application.
83 On 27 June 2018, the “Controversial Visitors Unit” of the “Complex Cancellation Section” recorded that the applicant was to be referred to the Department of Foreign Affairs and Trade for assessment under Public Interest Criterion 4003(a).
84 The only criteria for grant of the Subclass 155 visa were specified at the date of application by Schedule 2 of the Migration Regulations 1994 as then in force. PIC 4003 was not a criterion to which regard might be had in deciding whether to grant or refuse the visa.
85 The Minister accepted this position and correctly pointed out that: (a) the Minister did not refer to PIC 4003 in the First or Second Notices; and (b) any past inquiry as to how PIC 4003 would apply could not prevent future lawful decision making under s 501(1) in the present case if PIC 4003 is not taken into account in refusing the visa.
86 The writ sought in [4A] of the amended originating application is not appropriate and nor is the declaration in [4C]. The Minister is not proposing to proceed in the way contemplated in the terms of the writ or the declaration.
GROUND 4
87 The relief sought in [5] of the amended originating application was supported by ground 4 which was in the following terms:
4. The Respondent has refused, or in the alternative unreasonably delayed, making a decision on the Visa Application when he has a duty pursuant to ss.47 and 65 of the Migration Act 1958 to consider the Visa Application and make a decision on it.
Particulars
a. The Visa Application was made on 20 April 2011.
b. Between April 2011 and June 2018 the Visa Application was sporadically considered by officers of the Respondent’s Department who formed opinions that:
i. the Applicant met the requirements for the Visa Application to be granted; and
ii. there was nothing which disqualified the Applicant from having the Visa Application granted.
c. On 29 May 2018 the Applicant commenced proceedings in the Federal Circuit Court in relation to the unreasonable delay in the processing of the Visa Application.
d. The Respondent procured the dismissal of the Federal Circuit Court proceedings on the basis that his Department had issued a Notice of Intention to Consider Refusal of the Applicant’s Sub-Class 155 Resident Return Visa application under s.501 of the Migration Act 1958 (First Notice) on 28 June 2018.
e. On 27 July 2018 the Respondent’s Department withdrew the First Notice and issued the Notice.
f. On 27 June 2018 the Department referred the Visa Application to the Department of Foreign Affairs and Trade for assessment of compliance with Public Interest Criteria 4003(a).
88 As mentioned, the applicant does not press for mandamus in the absence of prohibition. Given that I would not grant relief in the nature of prohibition it follows that it is not strictly necessary to consider ground 4.
89 Something should be said, however, about the relief sought. The Federal Circuit Court proceedings were commenced on 29 May 2018. Relatively quickly after those proceedings were commenced, the Minister made his decision refusing the subclass 820 and subclass 801 visa applications. The Minister had also sent the First Notice which related to the subclass 155 visa application indicating he was considering refusing that visa application.
90 The Federal Circuit Court proceedings were dismissed by consent on 10 July 2018. It is clear from the notation to the consent order dismissing those proceedings that the parties took the view that there was no utility in pursuing those proceedings in light of the events which had occurred since the proceedings were commenced. That was a sensible attitude for the parties to adopt. It would not have been a good use of the parties’ or judicial resources to have persisted with those proceedings in the circumstances.
91 These proceedings were commenced on 24 August 2018 after the Second Notice was issued. The relief sought included interlocutory relief in the form of an order restraining the Minister from proceeding to refuse the applicant’s visa application on the basis of the Second Notice until final orders are made in these proceedings.
92 In addition to the interlocutory relief which had been sought, the Minister expressly agreed – as recorded in the notation to the orders of 9 April 2019 – not to make a decision under s 501(1) pending the applicant’s request to have the IRN “deleted”.
93 In circumstances where the applicant has at all material times since the First and Second Notices sought for the Minister not to make a decision under s 501(1) on the basis of the Second Notice, it cannot be said that the Minister has unreasonably delayed by not making such a decision.
94 There is no question that the delay in determining the Subclass 155 visa application lodged on 20 April 2011 is lengthy. It is as well to note, however, that the applicant’s circumstances raised a number of issues and that he has been living in Australia lawfully as the holder of a Bridging visa. It is not necessary to make findings about whether the delay has been unreasonable in circumstances where mandamus is not sought absent prohibition, particularly where the applicant has at all material times during these proceedings either sought an order that the Minister not make a decision on the basis of the Second Notice or secured an undertaking with that effect.
THE PUBLIC INTEREST IMMUNITY CLAIM
95 During the course of the proceedings a claim for public interest immunity was made in respect of certain documents. By consent, the claim was determined on the papers.
96 I advised the parties on 26 March 2019 that I had determined that the public interest immunity claim should be upheld and that reasons for upholding the claim would be included in the reasons for judgment on the principal application. These are the reasons for upholding that claim.
97 The applicant issued a notice to produce on 15 November 2018. The notice to produce required the respondent to produce 11 categories of documents and captured some 178 documents which initially included 143 redactions made on grounds of public interest immunity and legal professional privilege. There were 43 different passages, which were repeated or duplicated such that they appeared in 143 places. The parties narrowed the issues in dispute with respect to the notice to produce to one passage, which appeared 16 times across 12 documents (Contested Sensitive Passage 26).
98 The Commonwealth claimed public interest immunity over the Contested Sensitive Passage 26 on the basis that its disclosure would prejudice Australia’s interests.
99 The Commonwealth relied on confidential affidavit evidence given by the First Assistant Secretary of the South East Asia Division of the Department of Foreign Affairs and Trade.
100 It was submitted that the relevant passage had no apparent or meaningful relevance to the issues in dispute in the proceedings and therefore that there was no obvious or strong public interest in favour of its disclosure.
101 I determined that the Minister was not required to produce for inspection Contested Sensitive Passage 26. I was satisfied on the basis of the confidential evidence that, even if the passage could be seen to have some marginal relevance to the issues in dispute, the disclosure of the passage would cause harm to the public interest. The public interest in non-disclosure weighed heavily against the public interest in disclosure given the lack of any real probative value of the passage to any fact in issue between the parties.
CONCLUSION
102 The application must be dismissed.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. |
Associate:
