Wu v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1333

FEDERAL COURT OF AUSTRALIA

Wu v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1333

DA HUI WU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1419 of 2003

ALLSOP J
18 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1419 of 2003

BETWEEN:	DA HUI WU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	18 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. A writ of prohibition issue directed to the Respondent prohibiting her from acting upon or giving effect to or proceeding further upon the decision of the Respondent dated 21 August 2003 to refuse the Applicant’s application for a Class U 850 Temporary Visa.
2. A writ of certiorari issue directed to the Respondent to quash the decision of the Respondent dated 21 August 2003 to refuse the Applicant’s application for a Class UH 850 Temporary Visa.
3. The respondent pay the applicant’s costs.
4. The matter be stood over for the making of further orders or amendment to existing orders to Wednesday 19 November 2003, at 9.30 am.
5. Direct the parties to bring to Court on Wednesday 19 November 2003 a copy of agreed short minutes of order reflecting the orders made today and including any amendments or additions to those orders

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 1419 of 2003

BETWEEN:	DA HUI WU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	18 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, by amended application invoking primarily s 39B of the Judiciary Act 1903 (Cth), the applicant seeks orders pursuant to that section and otherwise setting aside, in effect, the decision of the Minister made on 21 August 2003 to refuse the grant of a visa to the applicant.  The applicant had sought a class UH850 temporary visa on 30 March 1998.  The terms of the application and the type of visa matter little, save to the extent that it was an application which would have given, if granted, the applicant a right of permanent residence subject otherwise to the operation of the Migration Act 1958 (Cth) (the Act).

2. The applicant had arrived in Australia in 1990.  The complaint of the applicant is that he was denied natural justice.  Thus, it is said, on the authority of a number of High Court decisions, that the decision was made exhibiting jurisdictional error, that is, that the Minister was not authorised by the Act to make a decision in circumstances where he had denied the applicant procedural fairness.  There is no issue about that proposition if the premise is made good, that is, if the Minister denied the applicant procedural fairness. 

3. There was also no issue about the conclusion that would flow from that, if made out.  Although Mr Wigney, who appeared for the respondent Minister, included in his written submissions material concerning s 474 of the Act, I do not understand him to dispute that should the applicant make out a case that he was denied procedural fairness in the way alleged, that this was not a decision under the Act in the sense discussed in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and thus not protected by the privative clause.

4. I do not propose to refer to any particular authority in relation to the principles of natural justice or procedural fairness.  There was no real debate about them before me.  Counsel accepted that, relevantly for the applicant's position, he was entitled to be given such information as enabled him to understand the serious matters which he had to meet and a reasonable opportunity to meet them.

5. There was also no debate that the context of the question and decision was important in understanding this.  All of those matters I think are best illustrated by understanding the facts.  The most appropriate way to approach this and explain my view that the applicant has been denied procedural fairness is to understand why the Minister acted as he did. 

6. Prior to April 2000, there was apparently a detailed and careful investigation conducted by officers of the Department, either acting on information provided by, or acting in conjunction with, the New South Wales Police Force, which investigation involved the applicant.  On 28 March 2000, an officer of the Department in the investigation section, signed a nine page minute, being the result of that investigation. 

7. The background to the investigation was set out on the first page.  It referred to the matter coming to the Department's attention in February 1996, that is four years earlier when information came forward from the New South Wales Police about the imminent arrival at Sydney Airport of 25 Indonesians.  There was a code name given to this operation which apparently identified the applicant as one of a number of people interested or involved in what was described as people smuggling. 

8. It was said that he was suspected of being one of the organisers of a scheme to bring people into the country and have them work here illegally.  The investigation report then identified various matters about the applicant.  A search warrant was executed on premises in Burwood.  Immigration officers were in attendance.  The applicant was present for at least some of the time during the execution of this warrant.  On this occasion, fifteen people were present, including the applicant, and they were interviewed. 

9. All were Indonesians, both male and female.  Thirteen were formally classified as unlawful non-citizens.  Other passports were confiscated from the premises.  The report then goes on to refer to various witness statements and interviews with people whom the Department approached during the investigation.  In the period July to November 1996, various witness statements were provided to the Department by nine of the people located during the earlier searches.  These people agreed to provide evidence by way of statements. 

10. It would appear from their evidence that they had paid on average something in the order of $5000 to an agency in Indonesia and the statements included the following claims that the applicant had:

    a)charged them a sum of money per week for any accommodation;

    b)accompanied them to a bank in Chinatown where he advised them what accounts to open;

    c)arranged tax file numbers for them;

    d)told people that they could apply for a protection visa or bridging visa for $850;

    e)showed the people the application forms for the visas, asked questions, wrote answers on the forms and took their passports. 

    It was said that the applicant later returned the passports and gave immigration receipts for payment of fees.

11. The report then dealt with aspects of these witnesses, which it is unnecessary to recount.  An interview was arranged with the applicant, which he did not attend. 

12. The report also referred to what was identified as the Belize Immigration Consultant Co.  The investigation identified that the Department of Fair Trading had registered the name Belize Immigration Consultant Co on 5 January 1995.  The information at the Department of Fair Trading indicated that the business commenced on that date, at a principal place of business in George Street in Sydney and that the person carrying on the business was the applicant.  The nature of the business in the files of the Department of Fair Trading was immigration consultancy.  The business was deregistered, however, on 23 March 1998.  It should be noted that the applicant has not been registered as a migration agent with either the Migration Agents Registration Scheme or the Migration Agents Registration Authority. 

13. The report then dealt with various surveillance matters which were undertaken and the report reached certain conclusions. Among those conclusions were the following:

    Conclusion

    1.Given the initial information form the NSW Police informant, and consistency in detail provided by available witnesses, there is evidence that around 1996 WU was involved in facilitating settlement of Indonesian nationals into the Australian community by assisting with accommodation and in some instances providing work.  This appears to have been done in an organised manner by people in Indonesia and Australia.

    2.There is also evidence that WU gave immigration advise [sic] and submitted protection visa applications on behalf of these people, and accepted money for providing this service. The problem, however, from an Investigation viewpoint is the lack of evidence which would support a prosecution for offences against the Migration Act 1958.

    That WU’s company, Belize Immigration Consultant Co.  was registered from January 1995 until March 1998, it is reasonable to conclude he was involved in immigration consultancy during this time, and possibly longer.

    3.The claims in statements provided by people either no longer in the country, or whose whereabouts are unknown, could not be put to WU at interview for his comment, as he refused to be interviewed.

    4.Surveillance of Wu’s current and his claimed prior residence have provided nothing to indicate he is still an onshore operative in the people smuggling business, and, while his current occupation is unknown, he has shown to have been recently involved in legal employment.

    5.The contents of this report dealing with WU’s past dealing with unlawful non-citizens and his apparent psychological problems, should attract close scrutiny when, in his application for Resolution of Status, WU is assessed against public interest criteria relating to character.

    Recommendation

    1.This investigation be closed, and the file placed in Investigations Store, Bankstown.

    2.A copy of this report be sent to Residence Parramatta, where WU’s application for Resolution of Status is being processed.

14. It is unnecessary to deal with the terms of the various statements.  Mr Henry, who appeared for the applicant, summarised relevant aspects of them in his submissions.  First, importantly, he said that there were 22 statements.  Secondly, that some of the statements referred to “Michael”.  The report deals with an alias of the applicant by the name of Michael Beck and there may be some question raised as to whether the applicant does have this alias.  Thirdly, the statements assert the collection and transport of people from Sydney Airport to places in Sydney as part of an organised scheme.  Fourthly, the witness statements assert various aspects of a concerted body of behaviour which were conveniently summarised in Mr Henry’s submissions as follows (reference to the statements omitted):

    ·that the applicant arranged for people to open bank accounts (sometimes for reward);

    ·that the applicant arranged for people to obtain tax file numbers for reward;

    ·that the applicant moved people from property to property for the purpose of avoiding being caught by immigration authorities;

    ·that the applicant provided work for people and either did not pay them or paid them very little;

    ·that the applicant arranged rental accommodation for people for reward in circumstances where that accommodation was grossly overcrowded.

15. It can be seen from the above material, that the investigation had produced evidence concerning the conduct of the applicant of a most serious kind.  During the course of debate with both counsel I resorted to the vernacular of “people smuggling” and “immigration racket” as being phrases which might, if these allegations were true, be appropriate. 

16. I did not do so for any prejudicial reason, and for the purposes of the judgment it is sufficient to say that the investigation produced, unless answered, evidence which might well be seen to be reasonable to act on to the effect that the applicant was part of an organised attempt to bring illegal immigrants, or facilitate the bringing of legal immigrants, to the country and making commercial gain from both their arrival and their work while here.

17. The Minister refused to grant the visa applied for, exercising a power under s 501 of the Act which, relevantly, is in the following terms:

    s 501
    Refusal or cancellation of visa on character grounds

    Decision of Minister or delegate—natural justice applies

    (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

    Note: Character test is defined by subsection (6).

    (2) The Minister may cancel a visa that has been granted to a person if:

    (a)   the Minister reasonably suspects that the person does not pass the character test; and

    (b)   the person does not satisfy the Minister that the person passes the character test.

    Decision of Minister—natural justice does not apply

    (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; or

    (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; or

    (ii)harass, molest, intimidate or stalk another person in Australia; or

    (iii)vilify a segment of the Australian community; or

    (iv)incite discord in the Australian community or in a segment of that community; or

    (v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

    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 (whether 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.

    Periodic detention

    (8)For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

    Residential schemes or programs

    (9)For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

    (a)     a residential drug rehabilitation scheme; or

    (b)   a residential program for the mentally ill;

    the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

    Pardons etc.

    (10)For the purposes of the character test, a sentence imposed on a person is to be disregarded if:

    (a)     the conviction concerned has been quashed or otherwise nullified; or

    (b)     the person has been pardoned in relation to the conviction concerned.

    Conduct amounting to harassment or molestation

    (11)For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

    (a)     it does not involve violence, or threatened violence, to the person; or

    (b)   it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

    Definitions

    (12)In this section:

    court includes a court martial or similar military tribunal.
    imprisonment includes any form of punitive detention in a facility or institution.
    sentence includes any form of determination of the punishment for an offence.

18. The issues paper, drafted by an officer of the Department, set out with some care, if I may respectfully say so, aspects of the investigation.  A copy of the investigation and statements was included with material that was placed before the Minister.  In describing the investigation under the heading of the character of the applicant the Departmental officer in the minutes said the following:

    20.During the visits, the following documents were found at Mr Wu’s premises:

    -      blank letterhead and fax coversheets for “Belize Immigration Consultant Co”;

    -      Advance Bank cheque book for “Belize Immigration Consultant Co”;

    -      Advance Bank account statement for Mr Da Hui Wu trading as “Belize Immigration Consultant Co”;

    -      Blank tax file number application forms issued by the Australian Taxation Office (found in Mr Wu’s car and at 17 Luke Avenue, Burwood).

    21.Interviews conducted with those detained revealed the following:

    -      Mr Wu charged $40 per person per week for renting accommodation;

    -      He accompanied people to Advance Bank in Chinatown and advised which accounts to open;

    -      He arranged tax file numbers;

    -      He told people they could apply for a protection visa or bridging visa for $850;

    -      He showed the people application forms, asked questions, wrote answers on form, and took their passports;

    -      He later returned the passports and gave Immigration receipts for payment of fees;

    -      He wrote false claims on the application forms.

    22.Checks with the Department of Fair Trading reveal that Belize Immigration Consultant Co.  was registered on 5 January 1995 and the person carrying on the business was recorded as Da Hui WU.  The nature of the business was recorded as Immigration Consultancy.  The business was deregistered on 23 March 1998.

    23.Mr Wu has not been registered as a Migration Agent with either the Migration Agents Registration Scheme or Migration Agents Registration Authority.

    24.Despite the suspicion of immigration malpractice the matter was not prosecuted before the courts due to the unavailability of witnesses.

19. The information in the investigation and statements, together with some of the responses that had been given on the applicant's behalf, were then analysed by reference to the structure provided for in Direction No 21 which was the then current direction promulgated, pursuant to s 499 of the Act, for the guidance of officers.

20. The general Direction No 21 was mandatory for officers of the Department to follow as delegates, but it was not mandatory for the Minister.  Nevertheless, as he was entitled to do, the Minister chose to structure his approach to the exercise of the power by reference to Direction No 21.  It was plain that the Minister had regard to, in the sense that he considered, the investigation report and all the statements.

1. The officer of the Department, in preparing the briefing paper or issues paper, said the following at the beginning of [47]: 

   47.In making a decision in this matter you must take into account all material contained in this document titled “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA REFUSAL UNDER SECTION 501 OF THE MIGRATION ACT 1958”, including all of the annexures as detailed below.

   Annex A – Copies of NOI dated 7 April 2000, and the second NOI dated 22 February 2002

   Annex B – A copy of a submission from Mr Wu’s Agent dated 13/03/02

   Annex C – A copy of Statutory declaration from Mr Wu dated 12/03/02

   Annex D – Copies of Witness statements (22)

   Annex E – A copy of final report from the Investigations team

   Annex F – Copy of Rados & Company response to the original NOI dated 30/03/00

   Annex G – Copy of Mr Wu’s response to the original NOI dated 02/05/00

   Annex H – A copy of the AFP Disclosable Court Outcomes dated 07/11/01

   Annex I – Copies of Character references from friends and colleagues

   Annex J – A copy of Certificate of Registration of Business Name.

   On the following page under “Decision”, [48] read as follows:

   48.I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and (3) all evidence provided on behalf of/and by Mr Wu.

   [emphasis added]

   The Minister then signed the decision paper stating as follows:

   49.I have decided that:

   …

   (c)Mr Wu has not satisfied me that he passes the character test.  I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) OF THE ACT TO REFUSE TO GRANT A VISA to Mr Wu.  My reasons for this decision are stated at Part E of this record.

   [emphasis in original]

2. There followed, in Part E, a statement of reasons required by s 501G of the Act. Under “Primary Considerations” and the “Protection of Australian Community” the Minister dealt with the seriousness and nature of the conduct, risk of recidivism, and deterrent to others.  He also referred to expectations of the Australian community.

3. It is unnecessary to look at the balance of all these matters. This is not a case of assessing whether the appropriate considerations were taken into account or the like but it is necessary to recount some of the reasons to understand the application of the principles of procedural fairness.  Under the paragraph, “Seriousness and Nature of Conduct”, the Minister said the following in [53]:

   53.Mr Wu has been investigated, and has been suspected of being an organiser involved in a scheme to harbour unlawful non-citizens in contravention of the Migration Act 1958. These constitute crimes that I consider to be very serious under subparagraph 2.6 of the Direction:

   “It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

   whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights.  This could include, but need not be limited to:

   -   engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;

   -   continual evasion or non-payment of debt;

   -   continual disregard as to payments of family maintenance;

   -   involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, “white collar” crime, fraud, breaches of immigration law; or

   -   involvement in war crimes or crimes against humanity.

   54.The nature of Mr Wu’s suspected conduct, namely acting as an unregistered migration agent and housing and assisting unlawful non-citizens to work and remain in Australia is such that I gave this consideration great weight.  I am of the view that the Australian community is entitled to be protected from people to circumvent Australia’s immigration laws.

   [emphasis added]

4. Later, in the section dealing with expectations of the Australian community, the Minister said the following:

   59.I am satisfied based on the information from the Department’s investigation that Mr Wu was involved in breaches of Australian immigration law even though he was not prosecuted due to the unavailability of witnesses. Such conduct reflects on poorly on Mr Wu’s moral qualities

   [emphasis added]

   60.I gave considerable weight to the pattern of Mr Wu’s behaviour.  I noted that he conduct was of a type that impacted on the community at large, in respect of the disregard and contempt it displayed to Australia’s migration program.  I considered that the Australian community would expect non-citizens to be of a high moral quality and not engage in activities that undermine the integrity of Australia’s Migration Program.

5. It can be seen from the reasons of the Minister, as is only to be expected, that a grave view was taken of the material that was contained within the investigation report and the statements.  As [53] of the reasons states, if the applicant were an organiser involved in a scheme to harbour unlawful non citizens, this would constitute a crime or crimes under Commonwealth law.

6. The Minister, if I may say so respectfully, correctly pointed out that the nature of the conduct, that is, acting as an unregistered migration agent, if it be the case, and housing and assisting unlawful non citizens to work and remain Australia, if it be the case, is such that he gave great weight to that consideration.  That was only sensible and responsible, if I may put it in those terms respectfully.

7. The Minister also said that he was of the view that the Australian community was entitled to be protected from people who circumvent Australia's immigration laws.  With respect to the Minister, he was perfectly entitled to say that on the material before him.  The Minister also said that he was satisfied from the investigation, that the applicant was involved in breaches of Australian immigration law, though he was not prosecuted, due to the unavailability of witnesses.

8. From these paragraphs, and the whole of Part E, it is not entirely clear whether the Minister was moving under s 501(6)(c)(i) or (ii).  The view is open that he was only moving under s 501(6)(c)(ii) but, even if he were doing that, as I think he probably was, he was taking the context of fact that the general conduct might also amount to a crime.  That, I think, explains the gravity and limits of the behaviour of the applicant which the Minister took as exposed by the investigation in the way expressed by the Minister. 

9. What then was the applicant told he had to meet? On 7 April 2000, the applicant was given a letter which was entitled “Notice of Intention to Refuse to Grant a Visa under subs 501(1) of the Migration Act 1958”. It was in full in the following terms:

   NOTICE OF INTENTION TO REFUSE TO GRANT A VISA UNDER SUBSECTION 501(1) OF THE MIGRATION ACT 1958

   You are currently an applicant for a Class UH 850 Temporary Visa.

   It has come to the attention of the Department that this visa application may be liable for refusal under section 501 of the Migration Act 1958 (the Act). The relevant ground is:

   ·Subparagraph 501(6)(c)(ii) – not of good character on account of past and present general conduct

   I have attached the full text of section 501 for your information.

   Before the Minister or his delegate considers whether to refuse the grant of a visa to you under subsection 501(1), you are provided with an opportunity to comment.

   Matters to be taken into account include the following:

   ·It is reasonably suspected that between April 1996 and October 1996 you did harbour and asssit Irwansyah Pheong, Halim Joseph, Ni Yung Tan, Sak Hiong Bong, Suhany, Hian Lim Kok, and Sulimijati, being non-citizen nationals of Indonesia, to work illegally in Australia;

   ·It is reasonably suspected that between April 1996 and October 1996 you did accept payment for giving immigration assistance in the form of completion and lodgement of applications for Bridging and/or Protection Visas to Irwansyah Pheong, Halim Joseph, Ni Yung Tan, Elsje Muliady and Djwarso Liau, being non-citizen nationals of Indonesia, whilst not registered as a Migration Agent.

   In reaching a decision whether to refuse the grant of a visa to you the Minister will have regard to the matters noted above and the attached Minister’s Direction No 17 titled ‘Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958’.

   In preparing your comments please read fully and carefully the contents of the minister’s Direction.  You should address each and every topic that you feel applies to you or is relevant to your circumstances.  You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account.

   You have 35 days from the date of this letter (ie until 12 May 2000) to provide any written comments and information to this office for my attention.  You may respond by mail (or facsimile) to the address below.  If you do not respond by 12 May 2000, a decision on your application will be made using information already held by the Department.

   The address to which you should convey your written response to this notice is:
   [address supplied]

10. The then current Direction No 17 was provided.  Later, upon its replacement in 2002, the applicant was given a letter enclosing the new Direction No 21 and the letter identified the changes to the two directions.  The form and terms of these directions is not relevant to the complaint.  Relevantly, that was the entirety of what the applicant was told he had to meet.

11. I should say, at this point, that the applicant provided a number of submissions to the Minister and the Department.  Some of them were from his retained migration agent, some of them were from himself.  They reveal a familiarity with some aspect of the Department file.  It is not clear from the evidence, but it must have been the case, that some access to the Departmental file was given at some point.  However, it is not said by the Minister that the material, being the investigation and the supporting statements, were ever given to the applicant.

12. On a number of occasions in those pieces of correspondence and submissions there was a complaint made as to the inadequate information which the applicant had been provided with.  It can be seen from the two bullet points in the middle of the notice of intention dated 7 April 2000 that two bodies of conduct are identified.  It is said, and it is probably the case, that those paragraphs reflect what the Department thought might well have been able to have been proved criminally should the witnesses be available. 

13. It is said, it was submitted on behalf of the Minister, that those two paragraphs give the full gravamen or gist of the complaint or adverse issue with which the applicant was required to deal.  Thus, it is said, precise details do not need to be given because the applicant has before him the essential elements of what is put against him.  I do not agree. 

14. The investigation which was taken into account, certainly raised these matters and they were certainly an essential and important part of the conduct which the investigation had thrown up, but they do not throw up the material concerning the running of a bogus immigration service. They do not throw up the inter-connected and apparently comprehensive scheme or operation, to use the words of the investigation, reflected in Mr Henry's submissions and set out at [14] above.

15. It is true, as Mr Wigney properly points out, that the bald denials and assertions of innocence of the applicant may well make it, or have made it, difficult for him to say a huge amount more about the balance of the allegations.  However, his visa was not merely being cancelled because of the facts identified in those two paragraphs.  His visa was being cancelled because of what was thrown up by the investigation which, in significant part, comprised the matters referred to in the notes, but went beyond it.

16. As I have said earlier, the seriousness of conduct is an important consideration in judging the context of the fairness displayed.  The visa being sought, was for permanent residence.  The applicant had been in Australia for 10 years at the time of the notice and nearly 13 years at the time of the decision.  If the matters set forth in the investigation are well-founded, one can readily understand the decision of the Minister.  They were matters of most serious weight in terms of the administration of public policy and the administration of the law. 

17. The consequences of the refusal of the visa were important for the applicant.  They were also important for his immediate family in China who rely upon him for income.  He has also a relationship in Australia with an Australian citizen.  All these matters, not least the importance to the Australian community of a decision being reached lawfully in such a serious matter required, I think, the applicant to be told more than that which is contained in these two paragraphs.  They do not reflect in my view, the width or depth of the seriousness of the conduct thrown up on a prima facie basis, at least by the investigation. 

18. It should be understood that my conclusion is not a foundation for any particular proposition as to how procedural fairness in a case such as this should be, or should have been, accorded.  There may well in any given fact situation, given the seriousness of the issues involved, be a real question as to what information is to be given to someone in the position of the applicant and when that information is to be given.

19. Those matters however do not arise for any further consideration.  Whatever be the rights or wrongs of the underlying issues, with the greatest respect to the Minister and the Department, I do not think this man was given a fair opportunity to meet the breadth, width and seriousness of the allegations contained within the investigation report and investigation primary materials. 

20. I should add this.  My conclusion is not a particular criticism of anyone.  The question of natural justice in cases such as this is not to be, in my view, answered by the application of a priori reasoning.  A number of cases of the highest authority have indicated that natural justice is to be equated with fairness.  That is why the term “procedural fairness” is now used.  This is not of course an idiosyncratic personal decision or choice as to what is fair.  Guidance from past decisions can often be helpful.  But the essence of it is that the person in the context in which he or she finds him or herself needs to be able to understand the questions to be addressed, the seriousness of them, and be given an opportunity to meet them. 

21. Minds can sometimes differ about this sort of question and I think that is what has happened in this case.  The view that these two paragraphs as the distilled criminal charges, as it were, from the investigation, were sufficient for the applicant to deal with is not a view which I share, as I have said, but it is a view that perhaps was understandable beyond the legal criticism which I have made.

22. For these reasons, in my view the applicant is entitled to relief.  The appropriate order in these circumstances is, I think, either a writ of prohibition and/or an injunction restraining the Minister from acting on the purported decision.  I do not think, at least at the moment, an order for a mandamus is necessary. 

23. I will order the respondent Minister to pay the applicant's costs and I will stand the matter over until 9.30 tomorrow for the making of any further orders, or the amendment of any of those orders as the parties may by consent seek or debate.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:

Dated:             10 December 2003

Counsel for the Applicant:	Mr M Henry
Solicitor for the Applicant:	Yandell Wright Stell Lawyers
Counsel for the Respondent:	Mr M Wigney
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 November 2003
Date of Judgment:	18 November 2003