Wong and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 1080

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1080

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/1343

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Tai Shing Wong

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date14 August 2003

PlaceSydney

Decision Section 503A(1) of the Migration Act 1958 does not protect the documents supplied by either the Ministry of Public Security of the People’s Republic of China or Interpol Canberra from disclosure, because they are not “gazetted agencies” for the purposes of s 503A(9) of the Act.

...............................................

RP Handley 

Deputy President

CATCHWORDS

IMMIGRATION – Freedom of Information application – student visa application – refusal of student visa – failure to pass the character test – disclosure of exempt documents upon which the Applicant was found to be not of good character – disclosure of protected information – preliminary issue - whether the Ministry of Public Security of the People’s Republic of China and Interpol Canberra are part of a class of agencies or organisations gazetted under s 503A(9) of the Migration Act 1958 - held that the agencies are not “gazetted agencies” – held that s 503A(1) does not protect the documents produced by either organisation.

REASONS FOR DECISION

14 August 2003 Mr RP Handley, Deputy President          

1.      Having heard submissions from the parties and considered the Federal Court decisions in NAAO v Secretary, Department of Immigration and Multicultural Affairs 117 FCR 401 and Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 945, the Tribunal has made a decision on the preliminary issue in this matter: that is, whether s 503A(1) of the Migration Act 1958 (“the Act”) protects some of the documentary material at issue in this case from disclosure to the applicant.

2.      The Tribunal has been especially guided by the general thrust of what the Federal Court said in both those cases, which was that a degree of specificity is required in the gazettal notice in defining the “gazetted agency” (s 503A(9)) for the notice to be valid as a proper exercise of the Minister's power.  The Full Federal Court's comments in NAAO (supra), while obiter, should in the Tribunal’s view be treated as a very persuasive authority.  Those comments suggest that it should be possible to identify the bodies, agencies or organisations with some degree of clarity.  It is clear that the Federal Court would not have found the Government of the People’s Republic of China as being covered by the gazettal notice.

3.      In Evans (supra), Merkel J concluded that the gazettal notice at issue in that case, which, as in NAAO (supra), is the same as that in this case, was invalid.  In the Tribunal’s view, Merkel J’s conclusion that the gazettal notice was invalid, for the reasons he stated, also has to be the starting point for the decision on the preliminary issue in this case.

4. The question then is whether s 46(1)(b) of the Acts Interpretation Act 1901 can be used in severing such invalid portions as to leave intact portions covering the Ministry of Public Security of the People’s Republic of China and Interpol Canberra, two organisations whose documentary material is sought to be protected from disclosure in this case.   Merkel J indicated at paragraph 43 of his judgment that “there is little difficulty, using the so-called “blue pencil” approach, in severing the country applications that resulted in the invalidity”.   He said there is also little difficulty in engaging in similar textual surgery by severing “law enforcement” agencies from the notice, as it was primarily, although not solely, those agencies, that led him to conclude that the notice lacked the clarity and precision for a valid specification by class or classes, even in Australia.

5. Merkel J was satisfied that the notice could be severed down to criminal investigation agencies in Australia which are readily identifiable. He declined to finally determine which parts of the notice must be severed pursuant to s 46(1)(b) of the Acts Interpretation Act.  However, it does seem that it was only the clarity and ready applicability of the relevant criterion which led him to conclude that the class of criminal investigation agencies possessed the requisite clarity and precision.

6.      In the Tribunal's view, whilst there is some affidavit evidence before it on the role of the Ministry of Public Security of the People’s Republic of China, there is not the clarity and precision which enables the Ministry of Public Security to be readily identified as part of a class of agency or organisation.  Indeed, the Ministry appears to have very broad functions.  The Affidavit of Peter Coyne, Principal Migration Officer at the Australian Embassy in Beijing dated 19 March 2003, refers in paragraph 6 to the Ministry of Public Security being in charge of "law enforcement operations nationwide" which is precisely the category of agency which Merkel J indicated should be severed from the gazettal notice.  Moreover, Merkel J’s comment about severing the portion of the gazettal notice relating to other countries, indicates that he would not have found that portion of the notice which might have covered the Ministry of Public Security to be valid.

7.      With regard to Interpol Canberra, according to the Affidavit of Craig Riviere dated 19 March 2003, Interpol is an organisation set up globally to "enhance and facilitate cross-border criminal police co-operation".  The Tribunal assumes, therefore, that its activities involve a range of policing functions, including the gathering of criminal or security intelligence, together with criminal investigation and law enforcement.  It does not seem to the Tribunal to fit neatly into a class of organisations such as that of a State or federal police service responsible for criminal investigation.  Essentially, it is the Australian federal bureau of an international organisation with a range of functions.

8.      In the Tribunal's view, there is no easy way to see how severance of invalid portions of the gazettal notice can lead to the retention of a valid portion of the notice which might encompass Interpol Canberra.

9. In conclusion, the Tribunal’s decision is that s 503A(1) does not protect either documents supplied by the Ministry of Public Security of the People’s Republic of China or Interpol Canberra from disclosure, because they are not “gazetted agencies” for the purposes of s 503A(9) of the Act.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  14 August 2003
Date of Decision  14 August 2003
Counsel for the Applicant         Mr Neil Williams, SC
Solicitor for the Applicant          Mr P Leung
Counsel for the Respondent     Ms Margaret Allars
Solicitor for the Respondent     Ms S Hanstein, Blake Dawson Waldron