Yong v Minister for Immigration & Multicultural Affairs

[2000] FCA 1772

FEDERAL COURT OF AUSTRALIA

Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1772

MIGRATION – decision of Minister for Immigration and Multicultural Affairs to refuse applicant business visa – Minister formed reasonable suspicion that applicant did not pass character test – whether error of law – whether no evidence or other material to justify making of decision – material on which Minister based decision unavailable to applicant or Court

Migration Act 1958 (Cth) ss 476(1)(e) & (g), 476(4), 501(6), 503A

George v Rockett (1991) 170 CLR 104 referred to

YONG CHAO WU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 945 OF 2000

MOORE J
30 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 945 OF 2000

BETWEEN:	YONG CHAO WU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	30 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application is dismissed.

2.   The applicant 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 945 OF 2000

BETWEEN:	YONG CHAO WU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	30 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Minister for Immigration and Multicultural Affairs (“the Minister”), made on 1 August 2000. In that decision the Minister refused to grant the applicant a Business Visa subclass 457 as an Independent Executive. The applicant had earlier applied for the visa on 24 June 1999. The Minister refused to grant the visa in the exercise of powers conferred by s 501 of the Migration Act 1958 (Cth) (“the Act”). Relevantly that section permits the Minister to refuse to grant the visa because firstly, he or she reasonably suspects that the applicant does not pass the character test, and secondly, he or she is satisfied the refusal is in the national interest. The character test is prescribed in s 501(6) and decrees that a person does not pass the character test if the person has certain specified attributes.

2. The evidence in these proceedings indicates the Minister formed the reasonable suspicion by reference to information that was protected information by operation of s 503A of the Act. In the result, the decision record of the Minister, while referring to the material in the sense of identifying that such material exists, contains nothing which enables one to glean, other than inferentially (and then only generally), what the material was in substance.

3. In the application for review the applicant relies on two grounds specified in s 476. The first is that the Minister's decision involved an error of law, being the ground specified in s 476(1)(e). The second is that there was no evidence or other material to justify the making of the decision, being the ground specified in s 476(1)(g). That latter provision has to be considered together with s 476(4) which identifies the two circumstances in which the no evidence ground arises. While the applicant appeared to prevaricate during the course of the hearing as to which of the paragraphs in subsection (4) is relied on, I am prepared to proceed on the basis that it is both. Indeed, the error of law relied on by the applicant raises substantially the same point. It is that the decision of the Minister does not disclose the basis on which the opinion was formed on which the operation of s 501 depended. That is, the reasonable suspicion of the Minister.

4. Counsel for the applicant referred to what are well settled principles of administrative law reflected in the observations of the High Court in George v Rockett (1991) 170 CLR 104 at 112:

   “When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.  That was a point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson [1942] AC 206. That requirement opens many administrative decision to judicial review and precludes the arbitrary exercise of many statutory powers.”

5. The difficulty the applicant confronts in these proceedings is that the material on which the Minister based his decision is, by operation of s 503A of the Act, unavailable to the applicant. It is also, at least prima facie, unavailable to the Court.  That renders it, in a practicable sense, impossible or at least extremely difficult for the applicant to demonstrate that either pars (a) or (b) of s 476(4) are made good.  That is, it makes it either impossible or extremely difficult to establish that there was no evidence or other material before the Minister, assuming that a particular matter needed to be established for the purposes of the decision.  It is also impossible or extremely difficult for an applicant in proceedings such as these to establish the facts that were considered by the Minister and on which the decision was based, and to then demonstrate that those facts did not exist.

6. Given that the material that was before the Minister is not known to the applicant or to the Court, the task of the applicant has been a difficult one.  Nevertheless the applicant bears the burden of making good the grounds alleged.  The applicant has not demonstrated either an error of law or that there was no evidence or other material to justify the making of the decision.  The application must fail.  Accordingly, I propose to order that the application is dismissed and that the applicant pay the respondent's costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             6 December 2000

Counsel for the applicant:	Ms R Winfield
Solicitor for the applicant:	W Chan & Co
Counsel for the respondent:	Mr N Williams
Solicitor for the respondent:	Australian Government Solicitor
Date of Hearing:	30 November 2000
Date of Judgment:	30 November 2000