MIMA v Wang

[2002] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S42 of 2002

In the matter of -

An application for Writs of Mandamus, Certiorari and Prohibition against PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

TAI SHING WONG

Applicant/Prosecutor

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 6 JUNE 2002, AT 10.17 AM

Copyright in the High Court of Australia

MR J.A. McCARTHY, QC:   May it please your Honour, I appear with my learned friend, MR R.B. WILSON, for the prosecutor.  (instructed by Peter Leung)

MR J. BASTEN, QC:   I appear with MS M.N. ALLARS for the respondent, your Honour.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Yes, Mr McCarthy.

MR McCARTHY:   Thank you, your Honour.  Your Honour, in this matter we move on the affidavit of Peter Leung dated 11 March 2002.  Just to assist in the basic details in the matter, might I also hand up to your Honour a short chronology in relation to that.

HIS HONOUR:   Thank you.  I will just have a quick look at that before you go to that affidavit.  Yes.

MR McCARTHY:   The draft orders that are proposed in the matter, your Honour, are set out in Annexure D to the affidavit.

HIS HONOUR:   Now, so far as I can see, but correct me if I am wrong, those orders are identical to the orders sought in the proceedings in the Federal Court except for paragraph (g), is that right?

MR McCARTHY:   That is correct, your Honour.

HIS HONOUR:   And Mr Basten says that his client will not object to any amendment of the proceedings in the Federal Court to add ground (g).

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   Yes.

MR McCARTHY:   In Annexure B there is set out the refusal of the Minister, a summary of relevant sections of the Migration Act pertaining to the Minister’s refusal.

HIS HONOUR:   What is the conduct that has given rise to the reasonable suspicion that your client does not pass the character test?

MR McCARTHY:   We are not sure of that, your Honour.  The statement of that ‑ if I might take your Honour to that.  There is a document called “ISSUES FOR CONSIDERATION”, otherwise known as the decision record.

HIS HONOUR:   “ISSUES FOR CONSIDERATION”.

MR McCARTHY:   “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA REFUSAL UNDER SUBSECTION 501(3)”.

HIS HONOUR:   Where do I find that?

MR McCARTHY:   Your Honour will find Annexure B, which is the notice of refusal, a letter that begins “Dear Mr Wong”.

HIS HONOUR:   Yes.

MR McCARTHY:   Behind that your Honour will find a document that begins “3” but is part of a notice of refusal, your Honour, which beings with:

The Minister may refuse to grant a visa to a person –

it is the quotation of 501(1) and there are six pages of that, then there is Regulation 2.52, which is pages 7 and 8, and then there is a document headed “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA REFUSAL UNDER SUBSECTION 501(3)” and in that there begins “PART B:  CONSIDERATION OF VISA REFUSAL”.  The information to which your Honour refers, as far as we may infer, are referred to in paragraphs 3 and 4 of the page that begins “CONSIDERATION OF VISA REFUSAL” wherein it is stated:

The Department has received protected information concerning Mr Wong under section 503A of the Migration Act and this cannot be disclosed to the applicant or his legal advisers and agents for comment.

4.   The relevant protected information concerning Mr Wong is at Attachments C1‑10.

I think that specifically answers that and in relation to reasonable suspicion, on the next page there is a heading ‑ ‑ ‑

HIS HONOUR:   I have not yet seen Attachments C1‑10.  Is that under Part C?

MR McCARTHY:   No, your Honour.

HIS HONOUR:   Where do I find Attachments C1‑10?

MR McCARTHY:   They are not provided to us, your Honour. It is claimed to be information under section 503A of the Migration Act, which is claimed to be material that:

cannot be disclosed to the applicant or his legal advisers and agents for comment.

HIS HONOUR:   What is Attachment C1‑10 an attachment to?

MR McCARTHY:   I assume it was an attachment to the consideration for visa refusal, your Honour, being the documentation that was received by Mr Wong.

HIS HONOUR:   Would you excuse me for a moment.  Yes.

MR McCARTHY:   Your Honour, at the next page under a section headed “Reasonable suspicion” there is this:

Subsection 501(6)(c)(ii) – the person’s past and present general conduct –

Now, that is a reference, your Honour, to the character test which is set out at paragraph 5 and quotes section 501(6) and it is the reference to (b)(ii) which comes after a series of ‑ ‑ ‑

HIS HONOUR:   Did you mean (c)(ii)?

MR McCARTHY:   I meant (c)(ii), your Honour, I beg your pardon – (c)(ii) which is one of a series of matters that go to good character under that test.  It is a reference to:

the person’s past and present general conduct –

that is as far as we are able to glean at this stage.

In reaching a conclusion as to whether a non‑citizen does not pass the character test, you must reasonably suspect that having regard to the person’s past and present general conduct he is not of good character.  The “reasonable suspicion” test is met if the evidence available to you arouses your suspicions; the suspicion is an honestly held suspicion and is reasonable in the circumstances.

Then, your Honour, in a conclusion which is stated, with due respect to the Minister’s advisers, in extremely loaded language, it says:

There is reasonable suspicion based on protected information at Attachments C1‑10 that Mr Wong does not pass the character test because of his past and present general conduct.

HIS HONOUR:   What page is that on?  Where is that?

MR McCARTHY:   This is at paragraphs 6 and 7 of the document that begins “PART B:  CONSIDERATION OF VISA REFUSAL”.

HIS HONOUR:   Yes.  Where is the conclusion?

MR McCARTHY:   This is paragraph 7, your Honour.

HIS HONOUR:   “There is reasonable suspicion”?

MR McCARTHY:   That is right:

that Mr Wong does not pass the character test because of his past and present general conduct.

This then passes on to a consideration of the national interest and other matters that I will come back to, your Honour.  Just to complete the material before you:  after this material was received by Mr Wong there were representations made on behalf of Mr Wong and they are at Annexure C1, which is 12 pages, and that is then followed by a further representation – that was a representation that was made, your Honour, on 13 February of this year.  That was followed by C2, which was a further representation, the representations made on 4 March.

I am instructed that Mr Leung was approach today by officers of the Minister and informed that the Minister would not be revoking his refusal.  When I came up to Court I had written down “There has been no notification of any official response to Mr Wong or Mr Leung”, but in actual fact some minutes ago we were informed that the Minister did not propose to revoke the refusal.

HIS HONOUR:   Now, why have proceedings been commenced both in the Federal Court and in this Court?

MR McCARTHY:   Well, your Honour, at the time in question it was first thought that it was appropriate to go in the Federal Court, but thereafter when it became clear as to what issues may arise in relation to the jurisdiction of that court, having the privative clause that has been put in in section 474 of the Act and the way that that had been interpreted, particularly in a series of decisions in February and March and whether the issues that Mr Wong would wish to have agitated could properly be agitated, it was considered that it would be appropriate and in Mr Wong’s interests if proceedings were commenced in this Court and it was ‑ ‑ ‑

HIS HONOUR:   Well, you had better just explain to me what are those jurisdictional issues.  You say, do you, that if this matter was remitted to the Federal Court, then the Federal Court would not have jurisdiction?

MR McCARTHY:   The Federal Court would have jurisdiction but the arguments in relation to the privative clause may well, on the present state of the authorities, be such that Mr Wong may not be in a position to develop a series of arguments that would be able to be developed and put here.

HIS HONOUR:   Just give me an example of the best of those.

MR McCARTHY:   Well, the best of those, your Honour, at the moment – and I give an example.  We say that there are two preconditions to the exercise of the Minister’s discretion, or for the Minister to make a decision under 501 and 501(3).  They go to the national interest and they go to questions about the opportunity to be able to make a reply, a submission, in effect, an ability of the prosecutor who is given no notice that there has been a visa refusal under the use of 501(3) would be able to respond to what has happened.

Now, we say in relation to those two arguments, which are very similar and, in fact, follow the arguments in Patterson v Taylor, which was decided in this Court only a few months ago, that as a result of what has been put in the Federal Court concerning the nature of preconditions, that in actual fact they are absorbed or they do not come within the Hickman principle, in other words, they are simply directory matters, that – and this was an argument that was developed by the Minister in a case called Wang, which was in actual fact decided in favour of the applicant in that case, and that involved the cancellation of a visa overseas.  That judgment has been taken on appeal to the Full Court of the Federal Court and is, as I understand it, one of a number of decisions that are being heard by a Full Bench of the Federal Court concerning the application of the privative clause to the jurisdiction of the Federal Court under section 39B of the Judiciary Act.

Now, your Honour, it may be the case that that argument is successful.  That argument may also be successful in relation to this matter.  We could be faced with submissions regarding the application of the privative clause which may not be available to the Minister in relation to an application under section 75(v) in this Court and in that way the prosecutor would be deprived of the wider argument that he is able to put.  There is no doubt, because it already has happened, that the Minister says that the nature of those preconditions, for instance, in this other matter of Wang were such that they came within the privative clause, in other words they did not fall within the exceptions to the Hickman test and he is taking a very expansive view, I suppose would be the best way to put it, of what the privative clause entails.

That, your Honour, is the essence of what our case is of moving in the High Court, that that argument has less weight or, in our submission, would not have the cogency that it may have in the Federal Court.  For that reason, we have brought the matter before this Court.

There are other issues that can be tied up with that, your Honour, which go to, I suppose what are called Anshun principles, that is, whether the argument is absorbed in what is put in the Federal Court.  There is also an issue that if it was, for instance, properly determined in the Federal Court, one would have a situation where there would be an argument that that was not the jurisdiction of the Federal Court and, in effect, the privative clause does apply but it does not apply – it applies to the jurisdiction of that court, but that narrowing of jurisdiction does not apply to the High Court of Australia.  So that we would have to come back here in some shape or form to try and get relief in this matter.  It seemed in a situation, your Honour, where there is – this is in a context of a temporary visa situation – that the matter was better moved in this Court.

I just hand up to your Honour – I had not developed – bring all copies of it.  Your Honour, I hand up Wang which is a decision in the Federal Court of Justice Mansfield.

HIS HONOUR:   Thank you.

MR McCARTHY:   There are very serious issues in relation ‑ ‑ ‑

HIS HONOUR:   Can you just give me a quick look at this, please, Mr McCarthy.

MR McCARTHY:   I am sorry, your Honour.

HIS HONOUR:   Now, the Minister appealed against this decision.

MR McCARTHY:   He certainly did.

HIS HONOUR:   And that appeal is currently being argued, is that right?

MR McCARTHY:   As I understand it, yes.  Your Honour, to put our two points.  One is that the jurisdiction of this Court is constitutionally based, of course, in section 75(v) and that jurisdiction cannot be cut back by Parliament in terms of its ambit.  The second is that where Parliament can regulate things, and also is the context in which these proceedings were filed, is that 486A of the Migration Act provides that an application must be made within a certain time in relation to this Court:

An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to the deemed) notification of the decision.

February was the date.  This is a decision to which the privative clause would apply, or at least it is not on the excluded list and so if we were to commence here and not be excluded, those proceedings had to be filed within a certain period of time.

HIS HONOUR:   And did you file them within that time?

MR McCARTHY:   Yes, we did.

HIS HONOUR:   Now, what is the argument that you put in the present case that corresponds to the argument that succeeded in Wang?

MR McCARTHY:   We say here, by analogy, that two of the preconditions, that is that the Minister must have to exercise a jurisdiction, were in actual fact not met.  In other words, there is jurisdictional error.  We put it on the same sort of basis and, indeed, in the same way as the argument at those levels were put.

HIS HONOUR:   What were the preconditions not met here?

MR McCARTHY:   That proper material in relation to the national interest was not put before the Minister, that is that the reason as to what it was that was said to be in the national interest was in actual fact not a consideration of matter, or proper information was given to him as to what would constitute a matter for the national interest.  Secondly, he was not properly informed as to what the consequences would be in his – properly informed as to the complete difficulties of response of the prosecutor to be able to put material before him in relation to a revocation in a context where he was not being advised as to what the grounds were on which the Minister was exercising his authority.  In other words, as in Patterson, one had a situation that was moving towards any submission being made as being an illusion.  I mean, even further than in Patterson where one was in a situation where there was no material that would be addressing what the Minister had done.

Now, it is our submission that in that context that that information should have been clear to the Minister and in actual fact was not made clear to the Minister.  The paragraph where this is stated, your Honour, in the reasons, is in paragraph 17 where it is stated – this is on a page that has in the middle of it “PART D:  DISCRETION”, your Honour, which your Honour might see there.  It says at the top:

The information used in connection with the exercise of the subsection 501(3) power in Mr Wong’s ‑ ‑ ‑

HIS HONOUR:   I am sorry, paragraph 17 of what, Mr McCarthy?

MR McCARTHY:   Of the decision record, your Honour, I am sorry.

HIS HONOUR:   Yes.

MR McCARTHY:   If I could take your Honour back to the beginning where the document – it says “ISSUES FOR CONSIDERATION” ‑ ‑ ‑

HIS HONOUR:   I have paragraph 17 of the decision record.

MR McCARTHY:   Right.  If that is the first page, it is the seventh page, your Honour, has paragraph 17.

HIS HONOUR:   I see it.

MR McCARTHY:   Now, to put this in context, your Honour, could I take your Honour back to paragraph 12, where it begins:

Possibility of revocation of a decision to refuse a visa made under 501(3)

12.  Subsection 501(5) provides that the rules of –

natural ‑

justice and the code of procedure set out in the Act do not apply when you decide personally to refuse a visa if you reasonably suspect that Mr Wong does not pass the Character test and that you are satisfied that it is in the national interest to refuse his visa.

13.  In the light of this, if a decision to refuse Mr Wong’s visa is made under subsection 501(3), he will be detained as soon as your decision to refuse a visa is served upon him.

If your Honour would just note that paragraph because I will come back to that in relation to our second point.  Then it quotes section 501C(3) and (4) and it says:

As soon as practicable after making the original decision, the Minister must:

(a)  give the person –

notice of the decision and a record of the relevant information, and:

(b)  except in a case where the person is not entitled to make representations . . . invite the person to make representations –

this is a case in which he is entitled to make representations because he has been detained.  Then:

The Minister may revoke the original decision if:

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

(b)  the person satisfies the Minister that the person passes the character test . . . 

15. If the person fails to satisfy you that they pass the character test as defined by subsection 501(6) then the original decision to refuse the visa cannot be revoked. In the case of Taylor, three High Court Justices were concerned that the Minister was not advised that the history of Mr Taylor was such that he could not pass the character test because he had a ‘substantial criminal record’ and accordingly the power of revocation under subsection 501C(4) could never be enlivened in this case.

16. The grounds under which you are considering refusing Mr Wong’s visa is that you reasonable suspect he fails the character test having regard to his “past and present general conduct” (subsection 501(6)(c)(ii)). Unlike subsection 501(6)(a), subsection 501(6)(c)(ii) is not absolute in its direction that the person fails the character test.

HIS HONOUR:   Am I understanding paragraph 17 correctly when I take it that, according to this, Mr Wong will never be told what the information is on which the reasonable suspicion is said to be based?

MR McCARTHY:   Yes, that is correct.

HIS HONOUR:   And he will have to make representations in support of revocation of the decision without knowing what the grounds of reasonable suspicion are?

MR McCARTHY:   Yes.

HIS HONOUR:   And then the author of this document informs the Minister of that fact, but says that, “Even so, Mr Wong may be able to convince you to exercise your powers of revocation.”

MR McCARTHY:   Yes.

HIS HONOUR:   He would have to be a pretty good advocate.

MR McCARTHY:   And I would have thought it was more accurate to say, taking the third sentence:

You should be advised that this might limit Mr Wong’s ability to obtain revocation under subsection 501C.

The real point of that is that Mr Wong, particularly in the circumstance of “past and present general conduct” is in a position where he is invited to speculate as to what the reasons might be and on the basis of his speculations he is invited to make submissions which may or may not cover the reason as to why it is that the Minister has suspicions that he is not of good character.

HIS HONOUR:   Is there anything in these papers before me that indicates to me the grounds on which the reasonable suspicion is based?

MR McCARTHY:   The answer is, yes, your Honour, in the way we have put the matter together.  I would like to take your Honour back to paragraph 5, the character test, and just draw your Honour’s attention to this, that in the way that it has been put, this is as far as we believe the record can go, that it is not alleged, for instance, under (6)(a) that:

The person has a substantial criminal record (as defined by subsection (7) –

of the Act, which your Honour may recall is in relation to an offence having the penalty of 12 months or more.  Then it says:

or

(b)  the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct –

So it is not (a) and it is not (b).  Then it is said:

(c)  having regard to either or both of the following –

and it is not the first –

the person’s past and present criminal conduct –

because no criminal conduct is alleged and that is over at – parts are subsumed in (a) but is an extension of that, then it is said to be:

the person’s past and present general conduct;

the person is not of good character –

So we can say it is not “past and present criminal conduct”.  He does not have a substantial criminal record, nor is he associated:

with someone else, or with a group of organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct –

Then further, your Honour, we can see this, that there is no allegation that, if your Honour could go to (d):

In the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)engage in criminal conduct in Australia ‑ ‑ ‑

HIS HONOUR:   Well, there is no allegation of ‑ ‑ ‑

MR McCARTHY:   Of any of (i) to (v) ‑ ‑ ‑

HIS HONOUR:   I have read those.

MR McCARTHY:   ‑ ‑ ‑ in relation to those.  So it says:

Otherwise, the person passes the character test.

It is then said in relation to the second point – or going further, what is provided to us, so that we could work something out, is – if I could take your Honour now to a further document called “DIRECTION UNDER SECTION 499”, which is called “DIRECTION NO 21”.

HIS HONOUR:   Where do I find that?

MR McCARTHY:   That is the document that is behind – if your Honour goes on about six pages ‑ ‑ ‑

HIS HONOUR:   Can I pass on to your instructing solicitor that it would save a great deal of time if numbers were put on the pages of every bundle, so that you do not need a private detective’s licence to find the document.

MR McCARTHY:   I am sorry, your Honour.  In the end your Honour will find the document about five or six pages further on.  Your Honour will find a document ‑ ‑ ‑

HIS HONOUR:   Further on from what?

MR McCARTHY:   From where we were just looking.  Your Honour will find a signature by Philip Ruddock, the Minister, saying that:

I reasonably suspect that Mr Wong does not pass the character test and I am satisfied that refusal of the visa is in the national interest.

Then underneath that there is a document called “DIRECTION UNDER SECTION 499” and it is called “DIRECTION NO 21”.  Now, if your Honour just goes back a page, to the decision, he says that has made:

an assessment of the Character Test as defined by subsection 501(6) of the Migration Act 1958, and (2) my Direction under section 499 of that Act and have decided that:

I reasonably suspect that Mr Wong does not pass the character and I am satisfied that refusal of the visa is in the national interest.

Now, going on, your Honour, in Direction No 21 there is at the second page an “APPLICATION OF THE CHARACTER TEST” and there is a set of sections that are set out there and the relevant sections that I would take your Honour to is “past and present criminal conduct”, which is at 1.8, and he is to:

take into consideration the following:

(a)  the nature, severity and frequency of the offence/s;

(b)  how long ago the offence/s were committed;

(c)  the non‑citizen’s record since the offence/s were committed . . . 

(d)  any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.

None of that, of course, applies here because there is no criminal conduct alleged.  Then it says at the bottom of the page, paragraph “past and present general conduct” and over the page it says at 1.9:

In considering whether a non‑citizen is not of good character against subparagraph 501(6)(c)(ii), decision‑makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test –

Now, it goes through a series of matters which says –

(a)  whether the non‑citizen has been involved in ‑ ‑ ‑

HIS HONOUR:   Well, I have read that.  I think I understand that a person who has been involved in “war crimes or crimes against humanity” might not pass the character test.

MR McCARTHY:   Yes, your Honour, but certainly there is nothing that could fall within (b), or nothing is alleged within (b), nothing that is within (c) because these are immigration offences, nor does (d) arise, nor does (e) arise in relation to this.

HIS HONOUR:   How do you know that?  How do you know that your client has not been suspected of being involved in war crimes?

MR McCARTHY:   No, in relation to the first, the (a), I have to accede, your Honour, in relation to the bullet points that are set out there, I cannot say that he is not suspected of being involved in “war crimes or crimes against humanity”.

HIS HONOUR:   Yes.  I would have thought that was part of your case.

MR McCARTHY:   Yes, it is.

HIS HONOUR:   I would have thought it would be part of your case to say that for all you know ‑ ‑ ‑

MR McCARTHY:   We are.

HIS HONOUR:   ‑ ‑ ‑ somebody has denounced him as being a member of the Serbian Armed Forces.

MR McCARTHY:   Your Honour, that is exactly my point, that I cannot exclude the fact that someone has said that we have been involved in “war crimes or crimes against humanity” and we have not, in relation to that, addressed those matters in relation to any submissions that we put forward because we do not know whether it is relevant or not.

HIS HONOUR:   But I take it to be your case that, consistently with all the information you have been given, for all you know he might have been denounced by somebody for beating his wife or for engaging in war crimes in the Balkans or for failing to pay family maintenance.

MR McCARTHY:   That is so, your Honour, yes, and that is our first point in relation to what we can – as to how we can answer this.  The second matter, your Honour, that we would take you to, if you could just stay with that document for a moment, is that there is references in 1.11 to:

General good conduct also includes recent good conduct.

HIS HONOUR:   Mr McCarthy, all this began because I asked you the following question ‑ ‑ ‑

MR McCARTHY:   Yes, how do I know what ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ what, if any, knowledge do you have as to the grounds on which the reasonable suspicion is based.  If the answer is, none, then that is it.

MR McCARTHY:   Well, your Honour, I think it would be unfair to say that we have been involved – I am sorry, it is not unfair to say to you that we have been in a process of elimination.  We are trying to eliminate various matters.  I mean, we do not seem to be engaging in criminal conduct in Australia because they would have said so.  They would have gone under another section if we had done that.

HIS HONOUR:   I understand that.

MR McCARTHY:   Yes, your Honour.  So the answer is that subject to the fact that we are not put in other categories, we do not know what it is that we have been charged with.  So that is the first thing that goes to our issues about identification.

HIS HONOUR:   Now, except by a process of eliminating things that you know you have not been charged with by reference to the provisions of the legislation, you have no idea from this material what “past or present general conduct” is relied upon as giving rise to a reasonable suspicion that you are not a person of good character?

MR McCARTHY:   That is so, your Honour.  The second matter is this, your Honour, that there are two tests, as your Honour is aware, under section 501(3).  The first is the suspicion that you do not pass the good character test and the second is that it is in the national interest that ‑ ‑ ‑

HIS HONOUR:   Now, what was the Minister told about the national interest?

MR McCARTHY:   Well, that takes your Honour back to paragraph – it begins at paragraph 8, if I could take your Honour back.  I am sorry about the non‑pagination, but if I could take your Honour back to the reasons for the decision.  Now, in paragraph 8 it starts:

National Interest

8.   Once you reasonably suspect that the person does not pass the character test, you must then separately consider and be ‘satisfied’ that refusal under subsection 501(3) is in the national interest.

9.   ‘National interest’ is not defined for the purposes of subsection 501(3).

Generally, however, courts have been reluctant to attempt to define the meaning of national interest in a statutory context.  (The national interest test is a different concept to the public interest test).  Generally, also, courts have not interfered with assessments by ministers as to what the national interest requires in particular statutory contexts.  The ‘national interest’ has been treated as going beyond core national government ‑ ‑ ‑

HIS HONOUR:   Well, on the top of an unnumbered page, the first word on which is “that”, it is the end of paragraph 11 and there is a sentence saying:

Given Mr Wong’s record in evading law enforcement activities –

Do I take that to mean that given that Mr Wong has never been charged with any criminal offence?

MR McCARTHY:   Or take in or questioned, that is so.  But, your Honour, just in terms of the test, could I just take you back over the page a little and just down to the bottom as to how they see the national test:

the ‘national interest’ may include Australia’s ‘reputation’ and ‘good name in the world’.  It is certainly reasonable to conclude that Australia’s international reputation and good standing would be damaged if it provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country ‑ ‑ ‑

HIS HONOUR:   But there is no allegation that your client has committed serious crimes.

MR McCARTHY:   No, and if it was so, they would have alleged it.  Then they go that that is the test, that that is the national interest test.  Then they say that his:

record in evading law enforcement activities –

it does not even meet the test –

and that Australia’s international reputation and good name is paramount, you may find that it is in the national interest that action be taken quickly to prevent him disappearing into the community before his case is dealt with.

Now, your Honour, what we say there – and then it says:

It is therefore, open for you to be satisfied ‑ ‑ ‑

HIS HONOUR:   I suppose what you say is that if you have not committed a crime, you cannot evade law enforcement.

MR McCARTHY:   That is so, but, secondly, your Honour, if it is the case that by – it would follow – if your Honour would just look down the page to 13, in relation to what happens:

In light of this, if a decision to refuse Mr Wong’s visa is made under subsection 501(3), he will be detained as soon as your decision to refuse a visa is served upon him.

Your Honour, the national interest test is the matter that goes to what it is that we are trying to do through section 501(3), or what the Minister is trying to do.  The reason given is the consequence that would follow from a 501(3) decision in any event.  In other words, your Honour, it cannot be the reason for what is about to happen, and that is:

to prevent him disappearing into the community before his case is dealt with.

That will happen as a result of the decision being made.  In other words, your Honour, no reason is given or proper reason, we submit, is given for why it is that in this particular case, anything that he has done meets the national interest.

HIS HONOUR:   Well, just a moment.  I asked you a little earlier what these attachments were attachments to.  Presumably the attachments C1 to 11 are attachments to the document that went to the Minister.  Presumably the Minister knows what you do not know, that is to say what your client is alleged to have done wrong.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   And I suppose that that may have a bearing on the national interest, depending on what it is.

MR McCARTHY:   Yes, your Honour, but what is stated to be in the national interest to the Minister is stated in paragraph 11.  It is not suggested that there is something else in the other material that provides a better reason ‑ ‑ ‑

HIS HONOUR:   Well, the only thing that I can see stated in paragraph 11 is that Mr Wong has a “record in evading law enforcement activities”.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   That seems to amount to the proposition that nobody has ever caught him doing anything wrong.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   Well, we just do not know – you and I just do not know what the Minister has in front of him that might bear on Mr Wong’s character or the national interest, except that we know that there is something in there that suggests that Mr Wong has a “record in evading law enforcement activities”.

MR McCARTHY:   Yes, your Honour, but not of any criminal conduct or of committing any crime ‑ ‑ ‑

HIS HONOUR:   Well, we know that he is not alleged to have committed any criminal conduct.

MR McCARTHY:   Yes, your Honour, either present or past, but I think it could go a bit further, your Honour.  I think it is to be inferred that in the C1 to 10 material there is nothing that would add to the statement that is set out there as your Honour has described it:

Given Mr Wong’s record in evading ‑ ‑ ‑

HIS HONOUR:   All right.  Well, I think I now understand the basis on which you seek to make your case, Mr McCarthy, and that brings me back to the question of the proceedings in the Federal Court.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   What is the stage that those proceedings have reached?

MR McCARTHY:   They are down to be heard in terms of an application on 12 June.

HIS HONOUR:   Now, if you succeed in the same argument that succeeded in Wang, then you will circumvent the privative provision.

MR McCARTHY:   That is so.

HIS HONOUR:   And you will then argue in the Federal Court the merits in the same way as you would argue them in this Court.

MR McCARTHY:   That would follow, yes, your Honour.

HIS HONOUR:   Subject to Mr Basten consenting to the amendment of your proceedings in the Federal Court by adding that paragraph (g), which he has undertaken to do.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   Then the question we have to decide this morning is what ought to be the future of the proceedings in this Court.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   You said they are listed for hearing in six days time in the Federal Court.

MR McCARTHY:   That is so; not for hearing.  This is the application for – well, yes, your Honour, that in way, but, your Honour ‑ ‑ ‑

HIS HONOUR:   Well, then a possible course to take in relation to these proceedings in this Court is just to see what happens in the Federal Court.  We will not have the proceedings running concurrently in two courts at the time, will we?

MR McCARTHY:   No, your Honour.  Your Honour, I mean obviously our preference is to proceed in the High Court of Australia and ‑ ‑ ‑

HIS HONOUR:   Well, it depends what you mean by the word “proceed”.  If I were to make an order nisi today or to make the application for an order nisi returnable before a Full Court, then it may come on for hearing in the High Court in its ordinary course in the list and then you may get a judgment – you would get a judgment some time later, but you may get a hearing and a judgment in the Federal Court within the next week.

MR McCARTHY:   Yes, your Honour, that is ‑ ‑ ‑

HIS HONOUR:   I can understand, if I may say so, why in the light of the privative provisions that are floating around you want to protect your position by having proceedings on foot in this Court, and quite frankly, subject to anything that Mr Basten says to the contrary, that does not particularly trouble me.  All I am concerned about is the possibility of having two concurrent proceedings running in two courts at the one time and I am concerned as to what is the proper course to take in relation to these proceedings having regard to the fact that you have a hearing in the Federal Court in six days time.  Why do I not hear what Mr Basten has to propose in that regard.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   Mr Basten, I have read your written submissions and subject to anything you wanted to add to what you have said in those written submissions, may I say I am not minded at this stage to dismiss this application simply on the basis that there are concurrent proceedings in the Federal Court, because I understand the motivation behind bringing proceedings in this Court.  But assuming I do not dismiss these proceedings today, what is your proposal as to what should happen to him?

MR BASTEN:   Your Honour, might I be bold enough to say that your Honour is ahead of me because I do not understand the motivation.  The jurisdiction of the Federal Court under section 39B has been said to be identical to that of the High Court under 75(v), and that was said in Richard Walter, at least by two members of the Court.  If 474 is a true privative clause, then it does not go to the jurisdiction of any court.  It merely attaches certain expanded powers to the decision‑maker.

HIS HONOUR:   Yes.  Well, we might have to see about that in due course.

MR BASTEN:   We might have to, your Honour, but there is no argument which has been raised at this stage to say that the jurisdiction of this Court is broader than that of the Federal Court, therefore any argument that could be raised here could be raised there.

HIS HONOUR:   What disadvantage do you suffer if the matter is stood over today to see what happens in the Federal Court in six days time?

MR BASTEN:   Well, nothing in principle, your Honour.  We will probably maintain the position that if there is a judgment from the Federal Court, if the prosecutor is successful, then subject to any appeal, this Court would have no further interest in the matter.  If the prosecutor is unsuccessful, then one would expect him to appeal to the Full Court, and if still unsuccessful, seek special leave to appeal to this Court.

HIS HONOUR:   And you may be quite right in the approach that you take, but if there is a hearing in the Federal Court in six days time, I am not particularly enamoured of the idea of taking up the time of this Court with these proceedings, if they may be resolved one way or the other in the Federal Court.

MR BASTEN:   Indeed.  If your Honour was to stand the proceedings over generally, we would not suffer any prejudice.

HIS HONOUR:   Well, that is what occurs to me at the moment, Mr Basten, that the proceedings should be stood over generally with liberty to either party to restore them and people could take advantage of that liberty when they see what happens in the Federal Court.

MR BASTEN:   If your Honour pleases.

HIS HONOUR:   I do not know, for example, how long it will take the Federal Court to give a decision in this Wang matter that is currently apparently – the appeal that is currently being argued before it but ‑ ‑ ‑

MR BASTEN:   There are five matters which were completed yesterday, I think, including Wang.

HIS HONOUR:   I did not even know they were concluded yesterday.

MR BASTEN:   As I understood it.  I have not heard this morning.  But Wang deals with section 131 of the Act, which is quite a different situation.  It would not necessarily say anything about this case, I would not think.

HIS HONOUR:   No.  Let me see what Mr McCarthy says.  What do you say about that proposal, Mr McCarthy?

MR McCARTHY:   Your Honour, certainly we would wish to be protected in this Court.

HIS HONOUR:   Well, at the moment I cannot see that anybody is suffering any harm as a result of your being protected in this Court and the proceedings remaining on foot.

MR McCARTHY:   Your Honour, I have to say that in putting Wang forward, I think your Honour understood it was by analogy.  Of course it says nothing about section 501.  That is not what it is about.  But the sort of argument that we are putting is the sort of argument that has been put – it would be misleading to say to you that the argument that we are putting here, which is the Patterson v Taylor‑type argument is not, in effect, what is the sort of argument that was put in Wang, relevant to those sort of provisions.

Your Honour, if the matter proceeded – if you were minded to have us proceed today in the Court, we would discontinue in the Federal Court and continue the matter in the High Court, so that in a sense we would not – that is to answer your question as to what would happen in two matters running concurrently.  We would not have two matters running concurrently.

HIS HONOUR:   It is a matter for you to decide whether you discontinue in the Federal Court.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   And if you discontinue in the Federal Court, then I will look at the position in that light.  But you have not discontinued in the Federal Court and, in fact, you have an appointment for hearing in the Federal Court in six days time.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   And my present inclination, subject to anything you said to the contrary, would be to stand this matter over, partly in order to see what happens in the Federal Court.

MR McCARTHY:   Yes, your Honour.  If your Honour would pardon me for a moment.  Your Honour, we would be content with that order.

HIS HONOUR:   All right then.  I will stand this matter over generally with liberty to either party to restore it to the list on seven days notice to the other party and I will reserve the question of costs of today and certify for counsel.

Call matter No 2, please.

AT 11.15 AM THE MATTER WAS ADJOURNED