Wong v Minister for Immigration & Multicultural & Indigenous Affairs

Case [2002] FCAFC 440

FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 440

TAI SHING WONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 889 OF 2002

BLACK CJ, HILL & HELY JJ
20 DECEMBER 2002
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 889 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TAI SHING WONG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BLACK CJ, HILL & HELY JJ

DATE OF ORDER:

20 DECEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 889 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TAI SHING WONG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BLACK CJ, HILL & HELY JJ

DATE:

20 DECEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal from a Judge of this Court (Tamberlin J) dismissing an application by the appellant (Mr Wong) for relief under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). The relief sought is, substantially, the setting aside of a decision of the Respondent Minister (“the Minister”) refusing Mr Wong’s application for a subclass 560 student visa under s 501(3) of the Migration Act 1958 (Cth) (“the Act”).

  2. Mr Wong is a national of the Peoples’ Republic of China with residency status in Hong Kong.  He is married and his wife and children presently reside in Hong Kong.  He entered Australia on his own on 22 August 1999 as the holder of a visitor’s visa.  Shortly after his arrival he applied for a student visa to enable him to undertake a business management course.  That application was successful and he was granted a sub-class 560 Student Visa which remained valid until 5 January 2001. 

  3. Mr Wong applied on 15 December 2000 for renewal of his student visa.  The course he had commenced was of a three year duration and the application for a further student visa was required to enable him to complete the course.  No decision was made on his application until 22 January 2002.  He was granted a bridging visa in the period from the expiration of the initial student visa which permitted him to remain in Australia.

  4. On 7 February 2002 Mr Wong was arrested and taken into custody by Immigration officers.  At the time of his arrest he was handed a document notifying him of the Minister’s refusal to grant him the student visa together with a copy of the Decision Record.  This was the first time Mr Wong had notice of the Minister’s decision.  The Notice of Refusal, omitting formal parts, read as follows:

    “On 22 January 2002,…

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AGLC
Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440
Case
[2002] FCAFC 440
Decision Date

CaseChat Overview and Summary

The case of Wong v Minister for Immigration & Multicultural & Indigenous Affairs involved the appellant, Mr Wong, challenging the Minister’s decision to refuse his visa application on the grounds that he did not pass the character test under section 501(3) of the Migration Act 1958. The appellant argued that he was not given adequate notice of the Minister’s decision, and that the decision was not properly communicated to him. The central legal issue was whether the Minister’s decision complied with the statutory requirements for communication and the character test. Specifically, the court needed to determine if the Minister properly communicated the refusal decision and whether the decision was based on reasonable suspicion, as required by section 501(6)(c)(ii) of the Act.

The Federal Court considered whether the Minister’s decision complied with the statutory requirements under the Migration Act. The court found that while the Minister was not required to disclose specific information under section 503A, the communication of the refusal decision and the reasons for it had to be adequate. The court also examined if the Minister's decision was based on reasonable suspicion as per section 501(6)(c)(ii). The court held that the Minister’s decision was validly made and properly communicated, despite the appellant's claims of inadequate notice. The court found that the Minister’s decision to refuse the visa was based on reasonable suspicion derived from protected information, which did not need to be disclosed.

The court dismissed the appeal and ordered the appellant to pay the respondent’s costs. The decision underscored that the Minister’s discretion under section 501(3) was correctly exercised, and the statutory requirement for reasonable suspicion was met. The court also found that the communication of the decision was in line with the legislative requirements, even though the specific protected information was not disclosed to the appellant.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 501C of the Act provides“501C Refusal or cancellation of visa – revocation of decision under subsection 501(3) or 501A(3):(1)This section applies if the Minster makes a decision (the original decision) under subsection 501(3) or 501A(3) to:(a)refuse to grant a visa to a person; or…(3)As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i)a written notice that sets out the original decision; and(ii)particulars of the relevant information ; and(b)except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10)) – invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(4)The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the person satisfies the Minster that the person passes the character test (as defined by section 501)…”(Emphasis added) By force of s 503A of the Act the Minister is not required to communicate to a visa applicant, or to the Court, information supplied to him by law enforcement agencies or intelligence agencies. It was for this reason that the documents Attachments C1-10 referred to in the Notice of Refusal were not released to Mr Wong. Obviously the inability to know what was in these documents makes it difficult to know what matters the Minister took into consideration in making the decision he did on 22 January 2002. That this was the case was recognised by those who advised the Minister who noted in a Minute to him that it limited Mr Wong’s ability to seek revocation of the Minister’s decision under s 501C, but it did not preclude it. The “Decision Record”, which was given to Mr Wong at the same time as the Notice of Refusal was in the usual form such documents take. It was in two parts. The first part was obviously prepared by an advisor, presumably an officer of the Department. It contained, among other things, a discussion of the matters which the author regarded as relevant to the decision. The second part was headed “DECISION”. This part of the document gave the Minister a choice of alternatives open to him. The choice the Minister rejected was to be deleted. The document was then signed by the Minister and dated as a record of the decision. It is reasonable to infer, in the absence of any evidence to the contrary, that the Minister adopted the discussion contained in the document, so that, for example, if that discussion was erroneous and the error bore upon the decision it would be reasonable to assume that the Minister’s decision would have been tainted by that error. Paragraphs 6 and 7 of the document discussed s 501(6)(c)(ii). The paragraphs stated:“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.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.”

Ratio Decidendi

Legal Principle Established

On 7 February 2002 Mr Wong was arrested and taken into custody by Immigration officers. At the time of his arrest he was handed a document notifying him of the Minister’s refusal to grant him the student visa together with a copy of the Decision Record. This was the first time Mr Wong had notice of the Minister’s decision. The Notice of Refusal, omitting formal parts, read as follows:“On 22 January 2002, the Minister for Immigration and Multicultural Affairs [sic] and Indigenous Affairs, acting personally under sub section 501(3) of the Migration Act (the Act), refused to grant you a subclass 560 Student Visa on the grounds that the Minister reasonably suspects that you do not pass the character test and the Minister is satisfied that refusal to grant a visa is in the national interest.The particular ground under which the Minister decided that you do not pass the Character Test is set out in Section 501(6)c(ii) of the Act.For the purposes of this section, a person does not pass the ‘character test’ if:(c) having regard to either or both of the following:(i)…(ii) the person’s past and present general conduct;A copy of the relevant legislative provisions and the decision record concerning the refusal to grant you a visa are attached for your information. Please note that Attachments C1-10 of the decision record document were not released as they are protected under section 503A of the Act. I have also attached a copy of the Minister’s direction 21 titled Direction under section 499 – Visa refusal and cancellation under section 501 of the Migration Act 1958 for your information.The decision to refuse to grant you a visa application under section 501(3) was made personally by the Minister for Immigration and Multicultural Affairs [sic] and Indigenous Affairs. This decision is not reviewable by the Administrative Appeals Tribunal. You may wish to obtain legal advice in relation to any other review options that may be available to you.You now have the opportunity to make written representations to the Minister regarding the possible revocation of the Minister’s decision under Section 501C of the Act, provided you are in immigration detention. Please note a representation must be provided within seven (7) days of receipt of this letter. A copy of the relevant section of the Migration Regulations 1994 (reg 2.52) which sets out the procedures to be followed when making representations is attached for your information.…” (Emphasis added)The legislative background Section 501 of the Act provides relevantly:“(3) The Minister may:(a) refuse to grant a visa to a person; or(b) cancel a visa that has been granted to a person; if:(c)the Minister reasonably suspects that the person does not pass the character test, and(d)the Minister is satisfied that the refusal or cancellation is in the national interest.(4)The power under subsection (3) may only be exercised by the Minister personally.(5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).Character test(6)For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); 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; or(c)having regard to either or both of the following:(i)the person’s past and present criminal conduct;(ii)the person’s past and present general conduct;the person is not of good character;…Otherwise, the person passes the character test.Substantial criminal record(7)For the purposes of the character test, a person has a substantial criminal record if:(a)the person has been sentenced to death; or(b)the person has been sentenced to imprisonment for life; or(c)the person has been sentenced to a term of imprisonment of 12 months or more; or(d)the person has been sentenced to 2 or more terms of imprisonment (on one or more occasions), where the total of those terms is 2 years or more; or(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.” (Emphasis added)