Wong v MIMIA

[2003] HCATrans 494

[2003] HCATrans 494

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S433 of 2002

B e t w e e n -

TAI SHING WONG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 11.09 AM

Copyright in the High Court of Australia

MR P.A. JOHNSON, SC:   If the Court pleases, in this matter I appear for the applicant, with MR R.B. WILSON of counsel.  (instructed by Peter W H Leung, Solicitors)

MR J. BASTEN, QC:   I appear for the respondent, if the Court pleases.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   You have an adjournment application to make?

MR JOHNSON:   There is.

GLEESON CJ:   That will count as part of your 20 minutes, but you can divide it between the adjournment application and the substantive application as you please.

MR JOHNSON:   Thank you.  There is an application for adjournment.  There have been submissions in writing from both sides in relation to that application, which I trust are with the Court.

HEYDON J:   By that you mean Mr Leung’s letter on behalf of the applicant?

MR JOHNSON:    Yes, that is the submission on behalf of the applicant.  There was, I think, a letter from the respondent’s instructing solicitor and a written submission from a friend which have dealt with that issue.  Put shortly, the application for adjournment is this.  The present application for special leave flows from a decision of the Full Court on an interlocutory issue with respect to a decision of first instance of Justice Wilcox.  Following the decision of the Full Court, the hearing, that is, the trial, proceeded before Justice Wilcox for the substantive claim for relief and that claim was lost. 

There is an appeal on foot to the Full Federal Court with respect to that matter which is now listed for 1 March next year.  It is the intention of the present applicant to seek to agitate at that appeal the issue raised in this application.  There may be technical and procedural issues raised with respect to that, but that is the intention of the applicant.  In any event, if the appeal was allowed from the decision of Justice Wilcox, that may mean that the present application is moot.  If the appeal was allowed, the present application may not need to be considered further.

If, on the other hand, the Full Court disallowed the appeal, it would be inevitable, having regard to the issues in the litigation, that there would be an application for special leave to this Court with respect to the matters raised in the final judgment of Justice Wilcox.  In those circumstances, what the applicant would be urging the Court to consider would be standing over the present application for special leave – which may or may not need to proceed, depending upon the outcome of the appeal to Full Court – upon the basis that if the appeal to the Full Court failed and there was an application for special leave to this Court, the present application would be heard together with that application for special leave.

There is a common subject matter, given that the claim for relief in the final judgment of Justice Wilcox included the claim of extraneous purpose as well, which was the subject of the present application to administer interrogatories and it is submitted that that course would allow the orderly progress of the litigation without what may be multiple hearings.  It is submitted there would be no prejudice that has been raised by the respondent with respect to that.  The applicant himself is in detention and he will be remaining in detention.

It is submitted that such a course would allow the expeditious and just determination of the issues raised in the present application, if they need to be determined, in conjunction with another application for special leave in the event that the appeal is dismissed.  Put shortly, that is the application on behalf of the applicant.

GLEESON CJ:   Thank you. 

In this matter there has been an application for an adjournment.  The grounds of the application are set out in a letter of 21 November 2003 from the applicant’s solicitor to the Deputy Registrar, supplemented by oral submissions by Mr Johnson of counsel.

The respondent opposes the application and has filed submissions dated 27 November 2003.  We agree with the substance of the submissions submitted on behalf of the respondent and, in particular, that to grant the application at this stage would be contrary to the orderly administration of justice.  The application is refused. 

Go ahead, Mr Johnson.

MR JOHNSON:    If the Court pleases.  The special leave application in this matter, it is submitted, raises issues of general importance.  The first issue of general importance concerns the appropriate principles to apply where, in an application to administer interrogatories, a “fishing objection”, as it has been called, is raised.  It is a matter, we would submit, upon which there are decisions of the Federal Court which are not on all fours, and that is reflected in the decision of Justice Wilcox at first instance, to which I will turn.

Secondly, we would submit that the test applied by the Full Court with respect to the “fishing” ground in this case appears to set the hurdle higher than previous authorities have indicated, even if the test was that which was to be applied in accordance with the decision of the Full Federal Court in Bannerman.  What the Full Federal Court did here, it is submitted, was to pose the test in a more rigorous fashion.

Thirdly, it will be submitted that the Federal Court’s ruling which refused leave to administer the interrogatories had a substantial impact upon the administration of justice in the particular case between the applicant and the respondent.  The extraneous purpose ground had been raised fairly and squarely by him and that decision led to a substantial impediment to its being properly litigated.

If I could seek to develop those submissions, the applicant came to this country from China in 1999.  He was taken into detention in February of 2002.  It has not been suggested at any stage that his conduct in Australia has been adverse.  The basis for his being taken into detention has been the subject of information which has been kept confidential under the relevant provision of the Migration Act.  The applicant has had to do his best to seek to protect his interests without knowing precisely what that information is.

The present application then involved the applicant seeking leave to administer interrogatories.  The questions which were sought to be posed were seven in number and appear at page 135 of the application book.  These were the questions ultimately as allowed by Justice Wilcox and they went essentially to the purpose of the respondent in making the decision which was made, to effectively cancel the applicant’s student visa.

An application was made to administer interrogatories; it came before Justice Wilcox.  Justice Wilcox, it is submitted, gave consideration to the relevant cases.  It should be mentioned in passing that the statutory provision which the Minister relied upon is at page 100 of the application book, section 501(6)(c)(ii).  It was relying upon: 

the person’s past and present general conduct –

in determining he was not of good character.  There was no suggestion that there was past and present criminal conduct, nor is there a suggestion that there was a significant risk that he would commit offences in Australia.

The application to administer the interrogatories came before Justice Wilcox.  An objection was made on behalf of the respondent on what is shortly described as the “fishing” ground.  So much is apparent from Justice Wilcox’s judgment at page 106, at line 3:

“fishing”, that “interrogatories as to motive are objectionable” and oppression.

It is the “fishing” ground which was relevant, because the other grounds were not the subject of any finding in favour of the respondent in the Full Court.  It is the fishing ground which is relevant to this application. 

His Honour identified, under the heading “Fishing” at page 106, line 23, a number of principles.  The tension between decisions in the Full Federal Court which the applicant seeks to rely upon is said to appear in passages at page 107 of the application book.  His Honour referred to the decision of the Treasurer of the Commonwealth of Australia v Canwest Global and there is a passage at line 30, at page 107:

“Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party’s documents may be relevant, the Court will have a discretion to order discovery.”

It is not suggested that the present proceeding represents an abuse of process.  There are no formal pleadings, but there is a clear allegation of extraneous purpose.  If that allegation is made good, it is arguable (I do not offer a concluded view) that it raises a ground of challenge that would not be excluded by s 474 of the Act.  The argument foreshadowed by Mr Wilson is that an extraneous purpose of this nature is inconsistent with the Hickman principle requirement of good faith.  It follows that the Canwest approach dictates rejection of the objection as to “fishing”.

So his Honour held, as a matter of principle, based upon the Canwest decision, that in circumstances where there is a claim which is not challenged as an abuse of process, then interrogatories may be administered, and that the so‑called “fishing” ground, referred to in earlier cases, must now be viewed as not an available basis for objection.  There are other bases of course, including oppression and matters of that sort.  Nevertheless, his Honour went on to consider what was described as the “older test” enunciated in the Bannerman Case: 

“sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery”.

His Honour sought to apply that test by referring to certain documentary material, summarised at page 108 from line 13.  His Honour’s summary of that and the reasoning that followed in the next paragraph led his Honour to indicate that there was support for a suspicion.  His Honour understood well the distinction between a ground for suspicion and the establishment of a case, as is made clear from the top of page 109.

So his Honour proceeded to direct the interrogatories, applying primarily the Canwest test, but noting that even the older Bannerman test was satisfied in this case.  His Honour, of course, is a most experienced and senior trial judge who brought his mind to bear on the issues and, it is submitted, applied the relevant principles correctly in this matter. 

It is understandable that his Honour took this approach with respect to the question of suspicion.  As this Court itself has said in George v Rockett, a search warrant case, in adopting the words of Lord Devlin in Hussein:

Suspicion, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking –

So was there a ground for suspicion?  His Honour said yes.

The Full Federal Court, it is submitted, has fallen into error, firstly, in failing to determine, it is submitted, the Canwest principle and the tension between that and the earlier cases, and that there is an issue of principle there which calls for clarification by this Court in that respect.  Secondly, the Full Federal Court erroneously characterised this case as a “bare allegation” case when, upon correct construction and classification, it is not such a case.  At page 130, line 27, the principle is stated:

But mere suspicion not “grounded” on evidence or inference will not suffice.

It is submitted that the Canwest principle would suggest that that proposition is wrong.  There is certainly an issue to be determined in that respect. 

In any event, it is a suspicion which must have some ground to support it.  Not evidence – this is not a hearing, it is an interlocutory application to administer interrogatories and the issue is clearly a different one to that which would be applicable at a final hearing.  At page 131, line 30, the Full Court said:

there will be a need here at least to ground an inference that an extraneous matter was taken into account and more significantly, that the Minister had an ulterior purpose, before it would be appropriate to order interrogatories to be administered.

The submission of the applicant is that that poses the test too high.  The bar is set higher, even, than the Bannerman Case.  What is needed, if the Bannerman test is the correct one and not the Canwest one, is that there be ground for a suspicion.  It does not involve a finding that something may be more likely than not, nor something that bears directly, in an evidentiary sense, upon the ultimate issue in the case, which, of course, would be for another day.  It is submitted that, posing the test in that way, the Full Court has fallen into error.

The Full Court then proceeded to refer to the documents which had been identified by Justice Wilcox and by counsel for the applicant as giving rise to the ground for the suspicion, but formed the view itself that it did not pass the test posed by the court itself in the passage that I have just taken the Court to at page 131, line 30.  In that respect, it is submitted, the wrong test has been applied in the circumstances of this case.

The application of the principle, in this case by a most experienced trial judge, gave rise to a decision ‑ admittedly, on a matter of practice and procedure, admittedly, on an interlocutory application – but a decision which, it is submitted, ought not have been overturned by the Full Court.  It is, despite the fact it is an interlocutory matter on an issue of practice and procedure, a matter of importance. 

The term “fishing expedition” is used in Bannerman and other cases.  What exactly does it mean?  What are the relevant principles to be applied?  To what extent do they apply at all, given the Canwest decision and the statement of principle relied upon by Justice Wilcox?  These are important matters which extend far beyond the circumstances of this case, it is submitted, and raise issues of general importance.

The resolution of this issue is clearly of substantial importance to the administration of justice in the circumstances of this case, where the applicant seeks to challenge decisions in circumstances where the information is not provided to him – the statute so provides – and he must seek to ascertain as best he can what the basis is. 

It is submitted that the material relied upon by Justice Wilcox clearly gives rise to grounds for suspicion.  There is reference even in the material before the Minister which would suggest that the suggested extraneous purpose, namely, returning the applicant to Hong Kong to permit foreign law enforcement authorities to pursue their inquiries with him – it being accepted that that was, if established, an extraneous purpose – that there was material to support that.  There were grounds for the suspicion.

One finds that in a number of places.  At pages 10 and 11 of the application book, at the bottom of the page, at line 45, “It is certainly reasonable to conclude” is the report to the Minister:

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 and seek to evade that country’s law enforcement action.  Given Mr Wong’s record in evading law enforcement activities, 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 –

There was a handwritten note, at page 91 of the application book, on an email of February, which predated the relevant decision:

do we think it is reasonable to harbour all alleged crim’s so they don’t get their day in court –

So there was ground for the suspicion, applying even the Bannerman test, it is submitted. 

In these circumstances, it is submitted that there are issues of general importance which ought found the grant of special leave in this case, issues of principle and issues of substantial importance to the administration of justice, generally, and to the merits of this case, in particular, as well.  If the Court pleases.

GLEESON CJ:   We do not need to hear you, Mr Basten.

The decision of the Full Court of the Federal Court in this matter related to a discretionary judgment on a question of practice and procedure and turned upon a relatively narrow factual basis.  The decision does not raise a question suitable to a grant of special leave.  The application is refused with costs.

We are going to adjourn for a short time to reconstitute.

AT 11.29 AM THE MATTER WAS CONCLUDED