Adams, Gerry v Minister for Immigration & Multicultural Affairs
[1997] FCA 609
•2 JULY 1997
CATCHWORDS
IMMIGRATION - application for review of decision of respondent to refuse to grant a temporary business entry (Class UC) visa - respondent satisfied applicant was “not a person of good character” within s 501(2)(b) the Migration Act 1958 (Cth) due to an association with the Provisional Irish Republican Army
IMMIGRATION - ground 1 of application based upon ss 476(1)(g) and (4) the Migration Act viz non-existence of the fact of any association with organisation or non-existence of an association with that organisation capable of showing want of good character
IMMIGRATION - no reasons given for decision - respondent cannot be required to give his reasons - discovery ordered with respect to ground 1
IMMIGRATION - ground 3 of application based upon ss 476(1)(d) and (3)(b) - case conjectural - discovery refused - ground 3 struck out
Administrative Decisions (Judicial Review) Act 1977 (Cth) - ss 5(1)(h), 5(3)(b), 13
Migration Act 1958 (Cth) - ss 66, 475, 476, 501(2)(b)
Buck v Bavone (1976) 135 CLR 110, distinguished
Canwest Global Communications Corp v Australian Broadcasting Authority (Federal Court of Australia, 16 June 1997), considered and applied.
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, considered and applied
Irving v Minister for Immigration (1993) 44 FCR 540, referred to
Lyons v Kern Constructions (Townsville) Pty Ltd (1983) 70 FLR 135, considered and applied
GERRY ADAMS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
QG 208 OF 1996
DRUMMOND J
BRISBANE
2 JULY 1997
IN THE FEDERAL COURT OF AUSTRALIA QG 208 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:GERRY ADAMS
Applicant
AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
CORAM:Drummond J
DATE:2 July 1997
PLACE:Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
Ground 3 of the applicant's application for review and paragraph (c)(ii) of the particulars of ground 1 be struck out.
The applicant be at liberty, after discovery, to provide further particulars of ground 1 to identify the facts describing the nature of the applicant's association with the Provisional Irish Republican Army on which the Minister based his decision to refuse the visa, being facts the applicant alleges do not exist.
The applicant pay the respondent's costs of and incidental to the respondent's notice of motion.
The respondent give discovery pursuant to O 15 r 2 in respect of the issues raised by grounds 1 and 2 of the applicant's application for review.
The applicant has liberty to apply for discovery by interrogatories after discovery pursuant to O 15 r 2 has been made.
The respondent pay the applicant's costs of and incidental to the applicant's notice of motion for discovery.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA QG 208 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:GERRY ADAMS
Applicant
AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
CORAM:Drummond J
DATE:2 July 1997
PLACE:Brisbane
REASONS FOR JUDGMENT
The applicant applied, under s 476 the Migration Act 1958 (Cth), to review a decision of the Minister made on 6 November 1996 to refuse to grant him a temporary business entry (Class UC) visa on the following grounds:
1.There was no evidence or other material to justify the making of the decision.
2.The decision involved an error of law.
3.The decision was an improper exercise of power conferred by the Migration Act.
The Minister sought particulars of each of these grounds and now applies, on motion, to strike out grounds 1 and 3 because there is no reasonable basis disclosed for the application, in so far as it relies on each of these two grounds: see O 20 r 2(1)(a) and O 54B r 5. No attack is made on ground 2. Without objection, the applicant amended the particulars provided by him of ground 1 at the hearing. The Minister maintained his attack on this ground of the application.
I also have before me a motion by the applicant seeking an order that the respondent "give discovery of documents".
I will deal with the Minister's motion to strike out grounds 1 and 3 of the application for the order to review first.
Ground 1 of the application for the order for review is founded on s 476(1)(g) and (4) the Migration Act, which provide:
"(1)… application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
…
(g)that there was no evidence or other material to justify the making of the decision.
…
(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
Ground 3 is founded on s 476(1)(d) and (3)(b), which provides:
"(1)…
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
…
(3)The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a) …
(b)an exercise of a personal discretionary power at the direction or behest of another person; and
… "
As required by s 66 the Migration Act, the Minister notified the applicant of his decision to refuse to grant the visa applied for by letter dated 7 November 1996. The Minister informed the applicant that he was satisfied that the applicant was not of good character. It was said that the Minister determined that he did not satisfy the particular criterion for a visa prescribed by s 501(2). I doubt that s 501(2) can be said to prescribe a criterion in the sense in which that term is used in s 66(2)(a) and (c): the sub-section empowers the Minister to refuse a visa if he forms the opinion, by reference to certain specific circumstances, that the visa applicant "is not a person of good character". But s 65(1)(a)(iii) shows that s 501(2) is a provision that "prevents the grant of the visa" here in question, within the meaning of that phrase in s 66(2)(b). It being common ground that s 66(3) applied to the applicant's visa application, it follows that the Minister was absolved from the obligation imposed by s 66(2)(c) to give written reasons why s 501(2) prevented the grant of the visa. The applicant's solicitor nevertheless sought reasons for this decision. The Minister responded by letter dated 28 February 1997, saying:
"I refused your visa application on the grounds that you failed to meet the good character requirement in section 501 of the Migration Act 1958. This section provides that I may refuse an application on character grounds if, amongst other things, I am satisfied that the applicant is associated with an organisation which has been or is involved in criminal conduct. I reached the view that you are not of good character because you continue to be associated with the Provisional Irish Republican Army, known as the P.I.R.A., an organisation that continues to conduct criminal acts of terrorism and bombings."
I would not regard this as a statement by the Minister of his reasons for refusing the visa application: it is no more than a paraphrase of s 501(2)(b) that only goes beyond the wording of the section by identifying the organisation with which the applicant is said to be associated. But it is apparent from this letter that the Minister can only have rejected the applicant's visa application on the basis that he was not a person of good character because of his association with the Provisional IRA if the Minister had first determined that such an association, in fact, existed and had then determined that the nature of that association, as described by the facts identifying it, was such as to demonstrate the applicant's lack of good character.
The applicant has now provided the following particulars of grounds 1 and 3:
"GROUND 1 - SECTION 476(1)(g) MIGRATION ACT
(a)The Applicant relies on the grounds set out in sections 476(4)(a) and (b) of the Migration Act.
(b)Insofar as the Respondent decided that the Provisional Irish Republican Army was a group or organisation that the Respondent had reasonable grounds to believe has been or is involved in criminal conduct, the Respondent was required by law to reach the decision under section 501 Migration Act to refuse the Applicant visa only if it was established to the Respondent's satisfaction that:
(i)the Applicant has an association with the Provisional Irish Republican Army; and
(ii)the Applicant is not of good character because of that association.
It is alleged that there was no evidence or other material of the matters set out in (i) and (ii).
(c)The particular facts which were the basis of the Respondent's decision and which did not exist were:
(i)the Applicant's association with the Provisional Irish Republican Army; and
(ii)that the Applicant was not of good character because of that association.
GROUND 3 - SECTION 476(1)(d) MIGRATION ACT
(a)The Applicant alleges that the improper exercise of power conferred by section 501 Migration Act was that the Respondent exercised a personal discretionary power at the direction or behest of another person.
(b)…
(c)In relation to section 476(3)(b) Migration Act:
(i)the identity of the persons at whose direction or behest it is alleged that the power was exercised was an agency of the government of Great Britain (the Applicant cannot further particularise the identity of the said agency until discovery herein) and/or the Executive Council of the Parliament of the Commonwealth of Australia;
(ii)the substance of the direction which it is alleged was given by the other person to the Respondent was that the Applicant should not be granted a visa to enter Australia;
(iii)the Applicant cannot give particulars of when and how the direction was given to the decision maker until discovery herein."
As to Ground 1, it is submitted that, in so far as the applicant must satisfy s 476(4)(a) of the Migration Act if he is to obtain the order to review which he seeks, the relevant decision is the decision to refuse the visa; the Minister was, by s 501(2), entitled to reach that decision if he was satisfied by the evidence and other material before him that the applicant was not of good character. What the true facts are is irrelevant. The critical thing is the probative force of the material before the Minister. It is then submitted that Ground 1, as particularised, cannot be read as alleging that there was no evidence or other material before the Minister reasonably capable of satisfying him that the applicant was not of good character. I doubt the correctness of the Minister's reading of s 476(4)(a): see Irving v Minister for Immigration (1993) 44 FCR 540 at 560, where I dealt with the inter-relationship between s 476(4)(a) and (b).
But whether or not there would have been substance in this attack on Ground 1 as originally particularised, in so far as the applicant then contended that the visa refusal decision was bad in the absence of material capable of showing that the applicant in truth had an association with the Provisional Irish Republican Army and material showing also that nature of that association was such as to mean that he was not of good character, the Minister's objection is met, in my opinion, by the amendments made to these particulars at the start of the hearing: notwithstanding the criticism that can be directed to some obscurity in these amended particulars, it is clear enough that the applicant's challenge to the Minister's visa refusal decision, in so far as it is based on s 476(1)(g) and (4)(a), is now confined to a case that there was no evidence or other material of the applicant being associated with the Provisional Irish Republican Army or of the nature of any association he may have with that organisation before the Minister when he made that decision from which the Minister could reasonably be satisfied with respect to either of those matters, irrespective of whether the applicant, in fact, had an association with the Provisional IRA and irrespective of whether the nature of any association he may have had with it was such as to demonstrate want of good character.
In so far as the applicant seeks review in reliance on s 476(1)(g) and (4)(b), it is submitted that "the immediate anterior fact on which the decision must be based is the existence of the requisite state of satisfaction" on the part of the Minister. It is further submitted that, while the applicant could, if he wished, challenge the decision in reliance on these provisions on the ground that the Minister never held the requisite satisfaction, the applicant wants to do something entirely different: he wants to assert that, even if the Minister was satisfied on the materials before him that he was associated with the organisation in question and that the nature of that association was such as to demonstrate want of good character, the true facts are that the applicant is not associated with the Provisional IRA and that, even if he does have some association with it, it is not an association of a kind sufficient to demonstrate want of good character.
This submission accurately identifies the case which the applicant wishes to make in reliance on s 476(1)(g) and (4)(b). But, in my opinion, these provisions entitle the applicant to mount just such a challenge to the visa refusal decision. These provisions of the Migration Act are indistinguishable from s 5(1)(h) and (3)(b) the Administrative Decisions (Judicial Review) Act 1977 (Cth). The latter were considered by the Full Court of this Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. This decision demonstrates that it is too narrow a reading of s 476(4)(b) to say that, in identifying a particular fact upon which a decision can be said to be based, regard can only be had to a single fact which is that most directly connected to the decision. In Curragh, at 220-221, the Chief Justice, with whom Spender and Gummow JJ agreed, said:
"Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. …
If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review."
Even if the Minister is correct in submitting that his satisfaction as to the applicant's association, arrived at from the material before him, could be said to be a particular fact upon which the visa refusal decision was based, a difficult proposition to accept, there is, in my opinion, no warrant for saying that the fact of an association between the applicant and the Provisional IRA (if it exists) nor, subject to one qualification, for saying that the nature of that association (if it exists) is of such a kind as to demonstrate want of good character are not just as much facts upon which the visa refusal decision was based. The assumption by the Minister that these two facts exist are, as his letter of 28 February 1997 shows, at the core of his decision to refuse the applicant a visa.
Curragh, at 224, is also authority for the proposition that, in seeking to make out his case based on s 476(1)(g) and (4)(b), the applicant is entitled to prove, if he can, by evidence admissible in this Court on the hearing of his application for the order to review the non-existence of any association between the applicant and the Provisional IRA and also to prove, if he can, that even if there is some association between them, the nature of the association is such as not to demonstrate want of good character. That s 476(4)(b) may, as Curragh shows, have been intended as a limitation on the ground of review contained in s 476(1)(g), in so far as it places a persuasive onus on the applicant for review to prove the non-existence of the critical facts upon which the decision sought to be reviewed is based, cannot justify denial to the applicant of the opportunity to disprove the existence of the two critical facts I have referred to, merely because he is particularly well-placed to seek to discharge the burden he bears in that respect and is keen for an opportunity to try to do just that.
The qualification I have referred to at page 9 arises from an alternative argument put by the Minister. It is said, as an alternative to the proposition that the question of the nature of the applicant's association with the Provisional IRA is not one of the facts on which the decision to refuse the visa was based within s 476(4)(b), that the applicant cannot rely on s 476(4)(b) to litigate the issue of the nature of that association: it is said that what is involved in this aspect of the Minister's decision is not reliance upon a particular fact, the existence of which is challenged, but rather the formation of an opinion by the Minister. Reference was made to Buck v Bavone (1976) 135 CLR 110 at 118-119. But that decision is not really in point: it shows that, where the matter upon which the decision-maker must be satisfied is one of opinion or policy, it may be difficult to prove judicially reviewable error in the form of, eg, taking into account irrelevant considerations or arriving at a decision bad for Wednesbury unreasonableness. The issue here is whether the applicant can bring his challenge to the decision refusing the visa within s 476(4)(b), in so far as one of the particular facts upon which it is said that decision was based was "that the applicant was not of good character because of his association with the Provisional IRA". In my opinion, that is not capable of being "a particular fact" within the meaning of s 476(4)(b). Rather is it an opinion that can only be formed on the basis of a number of particular facts. Those facts include the range of facts which describe the nature of any association the applicant may have with the Provisional IRA. They are facts which the Minister must be assumed to have adverted to in forming his opinion that the applicant's association with the Provisional IRA was such as to demonstrate absence of good character, for the reasons already given. But the applicant has not attempted to identify these facts. Instead he has only alleged in paragraph (c)(ii) of his amended particulars of Ground 1 that one of the particular facts on which the Minister's decision was based, but which did not exist, was: "the Applicant was not of good character because of [his] association" with the Provisional IRA.
Such an allegation is embarrassing in that it fails to identify the particular facts on which the applicant contends the decision was based, but which do not exist. Paragraph (c)(ii) of the amended particulars of Ground 1 should therefore be struck out.
But the difficulty for the applicant in identifying the relevant facts here is that the Minister has not given, and cannot be required to give his reasons for arriving at the opinion which he must have reached that the applicant's association with the Provisional IRA was of a kind sufficient to demonstrate want of good character. If he had given reasons, they would no doubt have identified those facts. And it is only the Minister who is capable of identifying the facts which he must have considered existed and which he must also have considered justified his opinion as to the applicant's lack of good character.
The applicant is therefore in the position where he is entitled to assume that the Minister must have considered that certain undisclosed facts existed which described the nature of his association with the Provisional IRA and that it was those same facts upon which the Minister based his decision, in so far as it involved the opinion that the applicant was not of good character. Yet the applicant cannot ascertain those facts assumed to exist by the Minister because he cannot compel the Minister to expose them by giving reasons.
Section 475(1) the Migration Act identifies the Minister's decision to refuse the applicant his visa as a decision which is judicially reviewable and s 476(1)(g) and (4)(b) provide that it can be reviewed on the ground that the Minister based this decision on the existence of a particular fact, which fact did not exist. In my opinion, the immunity given to the Minister by s 66(2) and (3) from the obligation to provide to the applicant his reasons for deciding that the applicant was not of good character cannot be read as impliedly negating the right conferred by s 476(1)(g) and (4)(b) on the applicant to seek review of the decision on the ground of the non-existence of a fact of decisional relevance. The Parliament has not hesitated to state clearly its intention to restrict the grounds on which migration decisions can be reviewed, where that is its intention: see, eg, s 476(2). The statutory right to seek review on that particular ground can only be exercised if the applicant for review can ascertain the facts the Minister acted on.
Those facts may well involve a narrower range of material than that comprising the whole of the reasons for decision; even if the Minister can be required to disclose those particular facts in order to enable a person to exercise his right of review given by s 476(1)(g), s 66(2) and (3) can still therefore serve a purpose.
The applicant submits, in reliance upon cases such as Lyons v Kern Constructions (Townsville) Pty Ltd (1983) 70 FLR 135 at 148-152, that he should be entitled to general discovery prior to being required to provide further particulars of each of the grounds upon which he seeks to review the decision in question. Since the facts the Minister must have assumed to exist and upon which he based his conclusion that the applicant was not a person of good character are matters solely within the knowledge of the Minister and since the Act cannot be read as depriving the applicant of the right to challenge the Minister's decision given by s 476(1)(g), I consider Lyons authority for ordering the Minister to give discovery of documents relevant to his conclusion that the applicant was not a person of good character by reason of his association with the Provisional IRA. Such discovery should be limited, in the first instance, to the Minister being required to file a list of relevant documents. But I will reserve to the applicant liberty to apply for discovery by interrogatories on this one issue, if the particular facts cannot be gleaned from discovered documents.
For the reasons given, I will not strike out Ground 1 of the application for review, other than paragraph (c)(ii) of the amended particulars. I will, however, direct that, after discovery, the applicant be at liberty to provide further particulars of Ground 1 to identify the facts describing the nature of the applicant's association with the Provisional IRA on which the Minister based his decision to refuse the visa.
So far as Ground 3 is concerned, it is submitted that the applicant has had the opportunity, in the particulars he has provided, to demonstrate that he has a reasonable basis for this attack upon the visa refusal decision and that this ground of attack is now revealed to be based on nothing more than pure conjecture: the best the applicant can allege is that the visa refusal decision was at the direction or behest of an unspecified "agency of the government of Great Britain", which the applicant says he cannot further particularise until discovery, "and/or the Executive Council of the Parliament of the Commonwealth of Australia". The applicant also admits that he cannot give any particulars of when and how this alleged direction was given to the Minister, until after discovery.
Whether the applicant should be permitted to maintain this particular ground of attack on the decision comes down, in my opinion, to whether he is entitled to succeed on his own motion for general discovery which, if granted, will require the Minister to give discovery of any documents in his possession or power relating to the issue raised by Ground 3 of the application for review.
The applicant correctly, in my opinion, accepts that he cannot "fish" to make out a case in support of this particular ground of attack on the decision; he accepts that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents, where there is already some evidence that a case may exist. But the applicant relies upon two pieces of evidence to show that his motion for discovery, in so far as it includes a claim for discovery of documents in the Minister's possession touching on the issue raised by Ground 3 of the application for review, is not a fishing expedition.
Firstly, he points to the fact that his request to the Department of Immigration and Multicultural Affairs under the Freedom of Information Act 1982 (Cth) for "all documents relating to the Minister's decision of 6 November 1996 to refuse to grant a visa to" the applicant produced a response that the documents relating to that decision included "a Cabinet Minute JH/0523/CAB dated 4 November 1996". The Department refused to release this Minute to the applicant. But it is submitted on his behalf that the existence of such a Minute, admitted to relate to the Minister's decision to refuse the visa and which is dated two days before that decision, suggests that the applicant's visa application was the subject of Cabinet dictation or direction. Secondly, one of the documents which the applicant did obtain, pursuant to his Freedom of Information request, is a one page document held by the Department entitled "Press Points. Northern Ireland - Visa for Gerry Adams". This document refers to the lodging of the applicant's visa application on 25 October 1996 and states that a decision on the application will be taken by the Minister following advice from his Department and the Departments of Prime Minister and Cabinet and Foreign Affairs and Trade. The document concludes:
"-The Australian Government notes that Mr Adams has not condemned the IRA's resumption of terrorist actions (the ceasefire was lifted in February 1996), including the horrific bombings in Lisburn on 7 October (which killed one British soldier).
-The Government's position is that all representatives to the peace process are welcome in Australia as long as they are committed to finding a peaceful political solution to the Northern Ireland issue, which absolutely excludes anyone who, explicitly or implicitly, endorses political violence or terrorism."
The document appears to be a briefing note prepared within the Department for use by the Minister in response to any media inquiries concerning Mr Adams' visa application. There is no evidence before me that the document was so used or that the information contained in it was conveyed by or on behalf of the Minister to any media organisation or other person. But it is submitted that this document evidences a Cabinet decision that the applicant is to be refused the visa he seeks or, alternatively, that it evidences a Government policy to the effect stated in the last paragraph of the document.
I am prepared to infer from the reference to the Cabinet Minute of 4 November 1996 and to the "Press Points" document in the Department's Freedom of Information response that the matter of the applicant's visa application was discussed in Cabinet shortly prior to the date on which the Minister decided to refuse the application. I am also prepared to infer that Cabinet may have adopted a policy to the effect of the last paragraph in the "Press Points" document. I am not, however, prepared to infer from this material that Cabinet itself made a decision that the Minister should reject the applicant's application.
The "Press Points" document, while making it clear that persons are not welcome in Australia who endorse political violence or terrorism, including those activities in Northern Ireland, also makes it clear that the Government acknowledges that the decision on the applicant's visa application is one for the Minister. It is not to the point to say that Cabinet may have a policy to the effect suggested by the last paragraph of the document: the applicant does not dispute the propriety of the Minister having regard to such a policy in making his decision with respect to the applicant's visa application. The existence of such a policy and the likelihood that the Minister may well have had regard to it, in arriving at his decision, provide no basis at all, in my opinion, for suspecting that the Minister abdicated his discretion and applied the policy without regard to the particular circumstances of the applicant. It might well be thought, in any event, to be an improper exercise of the power vested in the Minister, if he were to ignore such a Government policy altogether. There must be innumerable instances of administrative decisions being made in Australia in circumstances in which there are Government policies relevant to the making of those decisions. More than proof of the existence of the policy is required to raise a suspicion that a decision-maker, acting in an environment in which there is a relevant Government policy, has not merely had regard to that policy in arriving at his decision, but has applied it without regard to the circumstances of the particular case.
The fact that Cabinet may well have discussed the applicant's visa application a couple of days before the Minister decided to refuse it similarly provides no basis, either by itself or considered in conjunction with the "Press Points" document, for a reasonably-based suspicion that Cabinet did not merely discuss the matter, but directed the Minister to refuse the application. The applicant is widely known as a controversial person. There is, in my opinion, nothing at all surprising that, where the relevant Minister has to make a decision on whether to allow such a person entry to Australia, Cabinet will discuss the matter before the decision is made. There is nothing that I can see that is wrong in the Minister listening to the views of others, in the course of Cabinet discussion; nor can I see anything wrong in the Minister taking into account such of those views as he might consider worthy of weight. The only thing he cannot do is abdicate the discretion vested in him by the statute to others. But there is nothing, apart from the mere existence of some evidence suggesting that the applicant's visa application was discussed in Cabinet shortly before the Minister made the decision to refuse it, to suggest that that may possibly have occurred.
For these reasons, I regard the applicant's claim for discovery before further particularisation of Ground 3 to be an impermissible "fishing" expedition. I will not order the Minister to give discovery with respect to the issue raised by Ground 3. In view of the applicant's inability to plead this particular case in a way which suggests he may have some prospect of making it out, I am satisfied that there is no reasonable basis for the application, in so far as it is based on this particular ground. Ground 3 will be struck out.
There remains the applicant's motion for discovery which must now be limited to discovery with respect to the matters raised by Grounds 1 and 2 of his application for review.
In a recent decision, Canwest Global Communications Corp v Australian Broadcasting Authority (Federal Court of Australia, 16 June 1997), Hill J, in the context of an application for discovery by the decision-maker whose decision was the subject of an application for judicial review on grounds of Wednesbury unreasonableness, reviewed at length the authorities dealing with the entitlement of an applicant for such relief to general discovery of documents relevant to the issues raised by the application. He said:
"The power of the Court to order discovery in judicial review cases, particularly those brought under the ADJR Act, was considered by a Full Court of this Court, differently constituted, in Australian Securities Commission v Somerville (supra). In that case the Court (comprising Black CJ, Ryan and Olney JJ) referred to WA Pines and, inter alia, the judgment of Beaumont J in Ex parte Swiss Aluminium Australia Ltd (1982) 72 ALR 247 and concluded that there was no justification for the view that discovery in judicial review proceedings should be treated otherwise than according to the ordinary principles applicable in civil proceedings. Their Honours recognised that, having regard to s 13 of the ADJR Act, the occasion for making an order for discovery will not necessarily arise where the Court has all the material necessary to exercise its jurisdiction.
One of the arguments put to the Court in Somerville was that it was incumbent upon an applicant for discovery to establish, usually by way of evidence, a basis upon which the Court should conclude that there was an issue to be tried, proof of which would be aided by discovery. This argument was rejected. Certainly there is no such requirement in the general law where discovery is sought in ordinary civil cases."
I mention that no attempt was made by the Minister to suggest that s 13 the Administrative Decisions (Judicial Review) Act provided justification for denying or limiting discovery: the Minister has never given anything that could be regarded as reasons for his decision to refuse the applicant a visa and has done nothing more than state the conclusions he arrived at for considering that the applicant was not of good character.
I see no reason to doubt the correctness of Hill J's view in Canwest. The applicant is, in my opinion, entitled to discovery of the kind provided for by O 15 r 2 in respect of the issues raised by Grounds 1 and 2 of his application for review.
On the respondent's motion, there will be an order striking out Ground 3 of the applicant's application for review and paragraph (c)(ii) of the particulars of Ground 1. The applicant will have liberty to provide the further particulars with respect to Ground 1 that I have referred to, after discovery. That notice of motion is otherwise dismissed. The applicant only succeeded in preserving Ground 1 of his application by delivering amended particulars at the start of the hearing. The respondent has been substantially successful on his motion. He should therefore recover his costs of and incidental to his notice of motion.
So far as the applicant's motion for discovery is concerned, he can fairly be regarded as having had such success as to entitle him to all his costs of and incidental to that notice of motion.
I certify that this and the preceding 19
pages are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.
Associate:
Date:2 July 1997
Counsel for the applicant: DC Rangiah
Solicitor for the applicant: Terry Fisher & Co
Counsel for the respondent: R Gotterson QC and GA Mowbray
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 1 July 1997
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