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Zhang v Minister for Immigration & Anor [2009] FMCA 196 (9 March 2009)

MIGRATION – Criminal justice stay certificate and visa – cancellation – operative decision taken by Attorney-General – applicant granted visa as potential witness in prosecution – arguable case that he was denied procedural fairness – application for summary dismissal refused – interim injunction made – referral for legal assistance.

Federal Magistrates Court Rules 2001 (Cth), rr.12.03, 44.12

Migration Act 1958 (Cth), ss.147, 147(b)(iii), 162, 162(1), 164, 417, 476

Wasfi v Commonwealth & Anor (1998) 83 FCR 16

Applicant:

Kuanglun Zhang

First Respondent:

Minister for Immigration & Citizenship

Second Respondent:

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

File Number:

SYG 327 of 2009

Judgment of:

Smith FM

Hearing date:

9 March 2009

Delivered at:

Sydney

Delivered on:

9 March 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Markus

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1)                  The first respondent is restrained until further order or the conclusion of this proceeding, by himself, his delegates, officers or agents, from removing the applicant from Australia.

(2)                  The Attorney‑General for the Commonwealth is included as a respondent to the application, in so far as it seeks review of his decision under s.162 of the Migration Act.

(3)                  The applicant has leave to file and serve an amended application including any additional grounds of review with complete particulars of each ground on or before 10 April 2009.

(4)                  The applicant must file and serve any additional affidavits on or before 10 April 2009.

(5)                  The first respondent must file and serve any additional affidavits on or before 1 May 2009.

(6)                  A show‑cause hearing under Rule 44.12 is dispensed with.

(7)                  The application is listed for final hearing on the grounds set out in the application as may be amended on 12 May 2009 at 10.15 a.m. at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney.

(8)                  Note that the Court will consider:

(i)                whether the decision of the Attorney‑General on or about 24 April 2008 to cancel the criminal justice certificate should be declared void by reason of a failure to afford procedural fairness (compare Wasfi v Commonwealth (1998) 83 FCR 16),

(ii)             whether as a consequence, it should be declared that the applicant’s criminal justice visa granted on 24 June 2004 continues in effect.

(9)                  The applicant is referred under r.12.03 to the NSW District Registrar for referral to a lawyer on the pro bono panel for legal assistance, including advice about the amendment of his application and the filing of additional evidence, and, if appropriate, representation at the hearing.

(10)              Any party may request that the proceeding be listed for further directions or for the hearing of an application in a case on a date allowing 5 clear days’ notice to the other parties.  The appointment shall be obtained from the Associate on 9377 5528.

(11)              The applicant must file and serve in the Registry a short written outline of submissions and list of authorities 7 days before the hearing.

(12)              The first respondent must file and serve a short written outline of submissions and list of authorities 3 days before the hearing.

(13)              All documents required to be filed must be filed at the Registry.  PROVIDED that any document which is filed within 5 days of the hearing or other listing shall ALSO be provided by email address or facsimile number obtained from the Associate.

(14)              The applicant must immediately serve on the solicitors of the first respondent a copy of every document filed in the Court.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

Sydney

SYG 327 of 2009

Kuanglun Zhang

Applicant

And

Minister for Immigration & Citizenship

First Respondent

ATTORNEY‑GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application which was filed on 9 February 2009, in which the applicant presents to the Court as a person held in immigration detention with limited access to legal assistance.  His application invokes this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), without defining a ‘migration decision’ as defined for the purposes of that section, of which he seeks judicial review.  However, the official actions which are the subject of his grievance emerge, in my opinion, with sufficient clarity from his application and other evidence now before the Court to allow it to make appropriate interlocutory orders.  I note that the legal representatives of the Minister for Immigration had no apparent difficulty in detecting the administrative background to his application, when preparing a Court Book and affidavit to assist the Court.
2. The applicant came to Australia in June 2003, and shortly after his arrival an application for a protection visa was lodged.  This inadequately presented his claims.  The protection visa application was refused by a delegate, and that decision was upheld by the Refugee Review Tribunal in January 2004.
3. In circumstances which are not clear on the present evidence, the applicant gave information to the Department of Immigration complaining about the migration agent who had assisted him.  At that time, the applicant was regarded as a person who could assist an investigation and possible prosecution of that person.  For reasons which are not disclosed in the present evidence, a certificate under s.147 of the Migration Act was signed on 18 June 2004 by an officer of the Attorney‑General’s Department, as a delegate of the Attorney‑General’s power under that section.  This certified that “the stay of the removal or deportation of” the applicant “is required for the administration of criminal justice”.  It indicated the delegate’s opinion, in terms of s.147(b)(iii) that the applicant “should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to offences against laws of the Commonwealth of Australia”.
4. Acting upon the certificate, the Minister for Immigration then issued to the applicant a temporary visa of a class known as a ‘criminal justice stay’ visa, which continued indefinitely for the subsequent nearly four years.  The applicant contends that he was also given promises at that time that he would be given permanent residence in Australia if his stay became protracted.  However, the nature and evidence of these promises is not shown clearly in the evidence currently before me.
5. In his application to the Court, the applicant also refers to his being taken into immigration detention on 22 January 2009 following the cancellation of his criminal justice stay certificate and of his visa, and to his now being threatened with immediate removal from Australia.  His application complains:

1.      The Immigration Department requested me to be a witness for a migration fraud case because I am a victim.  The department orally promised that if the proceeding lasts for a long time, they would grant me the permanent resident visa.  However, after more than four years, a decision was made that no further visa will be granted to me.

2.      During the four years’ proceeding time, the department refused to tell our witness any progressing of the legal proceedings.  After four years, without advising me about the result of the legal proceeding (which I provide evidence as a victim witness), the immigration department ask me to depart Australia).

1. It appears to me that this sufficiently raises, at least, a contention that the applicant was denied procedural fairness before an operative decision was made upon which his detention and proposed removal is based.
2. The evidence now before me contains some relevant correspondence about this.
3. A letter dated 18 February 2008 was hand delivered to the applicant on 20 February 2008, by an officer of the Department of Immigration on letterhead of the Department of Immigration.  It stated::

I am writing to advise you that I have reviewed the Criminal Justice Stay Visa granted to you.

On 24 June 2004 you were granted a Criminal Justice Stay Visa so you could lawfully remain in Australia for the administration of the criminal justice process.  The Criminal Justice Visa was issued to support the investigation and prosecution of [name of another person] for his alleged involvement in providing false or misleading information to the Department of Immigration.

The Commonwealth Director of Public Prosecutions (CDPP) has decided the evidence you were prepared to give in this matter will now not be used by the CDPP.  This means that your involvement in the case has now concluded and your continuing presence in Australia, to assist in the criminal justice process, is no longer required.

You should now make arrangements to depart Australia.  The Department of Immigration and Citizenship will pay an economy air fair from Australia to your home country.

You have 28 days from the date of receipt of this letter to depart Australia or to apply for another visa.  Thereafter, the Attorney‑General will consider whether to cancel your Criminal Justice Stay Certificate, which would result in the cancellation of your Criminal Justice Stay Visa – see ss162 and 164 of the Migration Act 1958.  In addition, all Government support payments which you may presently receive conditional on your holding a Criminal Justice Stay Visa will cease from the day of any cancellation of that visa.

If you remain in Australia after the 28–day period and do not hold another visa you will become an unlawful non‑citizen subject to removal action.  If you are removed from Australia, that may affect your ability to travel to Australia in the future.

Should you require further information regarding this process or assistance with your departure arrangements, please contact [Manager] on [(02) telephone number] or [Officer] on [(02) telephone number] as soon as possible.  Alternatively, you may seek independent immigration advice.

I would like to personally thank you for your help with the administration of the criminal justice process in Australia.  The department is committed to ensuring compliance with migration and citizenship law, including the prosecution of serious offenders, and your willingness to support this process is appreciated.

1. The applicant subsequently employed a solicitor, who made representations to the Minister for Immigration inviting the Minister to make a decision under s.417 of the Migration Act, so as to grant the applicant a permanent resident visa.  That application was made on 14 March 2008.  It was not determined until 5 August 2008, when the applicant’s solicitor was informed that the Minister had declined to consider exercising that power.  The applicant’s solicitor requested a bridging visa while this consideration occurred, and I assume that such a visa was granted.
2. Meanwhile, it appears that an officer in the Attorney‑General’s Department had signed a document on 24 April 2008, which purports to be a certificate under s.162(1) of the Migration Act.  It states:

WHEREAS on 18 June 2004, [name], an officer of the Attorney‑General’s Department duly authorised by the Attorney‑General, issued a certificate pursuant to section 147 of the Migration Act 1958 (the Act), which stated that the presence of Kuanglun ZHANG (also known as Kuang Lun ZHANG), a citizen of the People’s Republic of China, was required in Australia for the purposes of the administration of criminal justice in relation to an offence against a law of the Commonwealth;

AND WHEREAS the presence of Kuanglun ZHANG in Australia is no longer required for the relevant purpose;

AND WHEREAS on 14 April 2008, notice in writing of the intention to cancel the certificate and details required under subsection 162(2) of the Act were given to the Secretary of the Department of Immigration and Citizenship;

NOW THEREFORE I, [name], an officer of the Attorney‑General’s Department being duly authorised at the date hereof to issue and cancel certificates under Division 4 of the Act, hereby cancel pursuant to subsection 162(1) of the Act, the abovementioned certificate with effect from 28 April 2008.

1. Shortly before that certificate was signed, an officer in the Department of Immigration sent to the applicant’s solicitor a letter dated 14 April 2008 which stated :

This letter is to confirm our telephone conversation this morning.

Mr Zhang is currently the holder of a Criminal Justice Visa.  As his involvement in the matter for which he was granted the visa has now concluded, I have begun proceedings for the Criminal Justice Visa to be cancelled.

On 28 April 2008 the Attorney General’s Department will cease the Criminal Justice Certificate issued to Mr Zhang.  This means that Mr Zhang’s Criminal Justice Visa will automatically be cancelled that same day, 28 April 2008.

In your letter to me of 14 March 2008 you requested the Department grant Mr Zhang a bridging visa to allow him to remain legally in Australia while the Minister considers his request to remain permanently in Australia.

For Mr Zhang to be granted a bridging visa he should attend the Department of Immigration and Citizenship’s Compliance Counter at Level 4, 26 Lee Street Sydney on Tuesday 29 April 2008.  He should take with him this letter, his passport and some bills which show his current residential address.

If you would like to clarify any details in this letter please feel free to contact me by phone on [number].

(emphasis in original)

1. This correspondence suggests that it was not considered necessary in the Department of Immigration for the Attorney‑General or his delegate to invite the applicant or his solicitor to make submissions to that decision‑maker on whether the Attorney‑General should cancel the certificate, before that action was taken.  There is no evidence currently before me which shows any contact being made by the Attorney‑General’s Department with the applicant or his solicitor.  However, it was a decision of the delegate of the Attorney‑General which was, in fact, the operative decision which gave rise to the power of the Minister to detain the applicant for removal from Australia.
2. Notwithstanding the contrary suggestion in the above correspondence, the Minister for Immigration and his delegates and officers had no statutory power to determine whether to remove the applicant’s right to lawful residence in Australia under his criminal justice visa.  Rather, any valid cancellation of his criminal justice visa occurred by operation of law under s.164 of the Migration Act which provides:

164   Effect of cancellation etc. on criminal justice visa

If:

(a)    a criminal justice certificate is cancelled; or

(b)    a criminal justice stay warrant is cancelled or expires;

any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation.

1. The operative power, is therefore that of the Attorney‑General under s.162, which provides:

162   Criminal justice certificates to be cancelled

(1)    If the presence in Australia of a non‑citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then:

(a)    if it was given under section 145 or 147, the Attorney‑General; or

(b)    if it was given under section 146 or 148—an authorised official;

is to cancel it.

(2)    Before cancelling the certificate, the Attorney‑General or authorised official is, an adequate time before doing so, to tell the Secretary:

(a)    when it is to be cancelled; and

(b)    the expected whereabouts of the non‑citizen when it is cancelled; and

(c)     the arrangements for the non‑citizen’s departure from Australia.

1. In Wasfi v Commonwealth & Anor (1998) 83 FCR 16, Merkel J considered the structure of the Migration Act in relation to the cancellation of a criminal justice certificate and the consequential effect on a criminal justice visa.  However, the circumstances were very different from the present.  In that case, such a certificate had been signed, and a visa was granted to the applicant, in relation to criminal justice proceedings in which he himself was prosecuted, sentenced, and ultimately released from imprisonment at the end of his sentence.  As Merkel J found, it was incontestable that the applicant’s continuing presence in Australia was “no longer required for the purposes” for which the certificate was issued (see p.21G‑22C).
2. In the present case, the applicant received his visa for co‑operating with the criminal justice authorities as a potential witness.  The evidence currently before me suggests that no prosecution has, in fact, yet occurred, but that the Commonwealth Director of Public Prosecutions held an opinion in early 2008 that the applicant’s evidence “will now not be used”.  There is no evidence before me as to the basis upon which that opinion was held.  The evidence does not show what correspondence there has been between the Commonwealth Director of Public Prosecutions, the Department of Immigration and the Attorney‑General’s Department before the cancellation certificate was signed.  Whatever the nature of that correspondence, it would not have been legally permissible for anyone other than the Attorney‑General or his delegate to make the decision under s.162 as to whether the precondition to cancelling the certificate should be found to be satisfied.
3. In Merkel J’s language at p.22, I consider that it is reasonably arguable for the applicant that his was a case where:

the question of whether a person’s presence is no longer required for the purpose for which a criminal justice certificate was given might involve a judgment based on evaluation and weighing up of facts and circumstances: see ss 145, 146, 147, 148 and 162.

1. In Wasfi, Merkel J addressed whether a judicial review application could challenge the validity of the cancellation of a certificate, in the course of seeking a judicial determination whether the applicant is an unlawful non‑citizen by reason of a cancellation of a criminal justice visa by operation of s.164.  His Honour was of the opinion that it could.  His Honour was of the view that an applicant would have standing to challenge that cancellation, and that “the Attorney‑General was bound to comply with the rules of natural justice when making his decision under s 162(1)” (see p.29C).  His Honour said at p.27F :

Section 162 confers a non‑discretionary power of cancellation based upon the determination that a person’s presence in Australia is no longer required for the purpose for which a criminal justice certificate was given.  As pointed out above in some cases a decision under the section can require an evaluation and weighing up of facts and circumstances.  In such cases views may differ as to whether the criteria necessary for the exercise of the power have been satisfied.  Whilst there may be little room for doubt on that issue in the present case, that is not necessarily so in other cases.  Although the power conferred under the section is not discretionary and the matters which may be put forward by a person who is intended to be the subject of the power against its exercise may be limited, there are matters which a person, whose rights or interests might be prejudiced by the exercise of the power, might legitimately wish to put forward in order to contend that the power ought not to be exercised.  Accordingly, there is nothing implicit in the nature of the decision to be made or the subject matter with which it is concerned that leads to the conclusion that it would be futile or pointless to afford a person, whose rights or interest might be affected by the decision, an opportunity to be heard in relation to it.  I would add that a court should exercise considerable caution before concluding that the subject matter of a decision is such that it would be futile or pointless to afford the person who will be affected by it an opportunity to be heard.  As was so graphically pointed out by Megarry J in John v Rees [1970] Ch 345 at 402:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice.  ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard?  The result is obvious from the start.’  Those who take this view do not, I think, do themselves justice.  As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

1. Merkel J then considered the “scope or content of the rules in the present case”.  He was satisfied in that case that there was “the real risk of flight… such that the giving of prior notice in relation to a decision under s 162(1), and affording the applicant an opportunity to be heard prior to making it, might frustrate the object or purpose of conferring the power to make the decision in this case” (see p.29E).  He therefore was satisfied that there had been no such requirements “in the special circumstances of the present case”.  There is no foundation in the evidence currently before me for a similar apprehension in relation to the present applicant.
2. The present application was returnable before me at a first Court date last week, on 3 March 2009.  The Minister submitted that an expedited show‑cause hearing should be held under r.44.12, and I acceded to this submission.  It appeared to me that this was appropriate, because the merits of the application were obscure, the applicant was in detention, and the Minister was foreshadowing his urgent removal from Australia.  I therefore listed today’s show‑cause hearing, and directed the Minister to provide a Court Book explaining the relevant background.  The applicant was encouraged to provide any additional documentary evidence informally to the Court.  He has done so today, and the Minister’s representatives have taken no objection to that.  The Minister tendered further documents, and I have considered the preliminary merits of the applicant’s application upon this documentary evidence, without taking any evidence from the applicant or any other witness.
3. These expedited procedures have the consequence that the proceeding has not been fully prepared in relation to its presentation of evidence and submissions by either side.  Plainly, the application is not adequately formulated in relation to the grounds of review or the relief sought.  Not only does it need to properly identify the migration decisions in relation to which judicial review is sought, but if, as I think it should, it is understood as including a challenge to the operative decision of the Attorney‑General under s.162, it would be appropriate for the Attorney‑General to be joined as a respondent, as well as the Minister for Immigration.  There appears to be no doubt that a challenge to the validity of a decision under s.162 comes within this Court’s jurisdiction under s.476 of the Migration Act.
4. The Minister’s representative today submitted that the proceeding is incorrectly constituted at present, and should be summarily dismissed for that reason.  However, I am not satisfied that it does not properly raise a genuine dispute as to whether the applicant’s criminal justice visa should be declared not to have been cancelled by operation of law, and whether the applicant is currently a non‑citizen who is liable for removal from Australia under Division 6 of Part 2 of the Migration Act, even as presently constituted with only the Minister for Immigration.  The Minister is a proper contradictor in relation to that issue, and it appears to me that it has been raised by the present application.  The applicant has a contention that there has been no automatic cancellation of his temporary visa by operation of law by reason of a cancellation of a criminal justice certificate by the Attorney‑General, because that decision was void under principles of procedural fairness.  It may well be that the Attorney‑General has a right to be heard in relation to that contention, but I am not persuaded that the present application is doomed to failure due to the absence of that joinder at inception.
5. I consider that the applicant has raised an arguable case in relation to that issue, upon the principles considered by Merkel J in Wasfi.  I think it appropriate today to order the amendment of the application, to join the Attorney‑General as a respondent.  He will have liberty to apply to be removed if he wishes to contend that this was inappropriate.
6. I note that the Minister made two other submissions on whether the applicant had raised an arguable case for any relief.  The first was that, as in Wasfi, no obligations of procedural fairness arose in the present case obliging the Attorney‑General to give notice of an intention to consider cancellation and inviting submissions from the applicant.  He submitted that this was because only one outcome was conceivable, due to the CDPP’s stated opinion.
7. However, in my opinion the applicant has a reasonable argument that Wasfi is distinguishable.  As I have indicated, the critical consideration in Merkel J’s judgment, which does not apply in the present case, was that the applicant was ‘at risk of flight’ if he was warned that cancellation was being contemplated and invited to make submissions.  There seems to have been no fear of this in relation to the applicant, since the applicant was told by the Department of Immigration that his visa would be cancelled, albeit in terms which arguably showed error of law as to the location of the operative statutory power and, arguably, an implicit denial of the applicant’s right to be heard by the relevant decision‑maker.
8. Whether, in the circumstances, any breach of procedural fairness occurred, and whether it was sufficiently material to justify the granting of final relief by the Court, are, in my opinion, issues which are better left to a final hearing, when they can be decided upon better evidence and submissions presented by both parties.
9. The Minister’s second contention was that, in fact, the applicant was given sufficient notice of an intention to consider cancelling the visa and an opportunity to be heard, as a result of the two letters given to him by the Department of Immigration on 18 February 2008 and 14 April 2008 as set out above.  However, it appears to me that the applicant has a simple argument which he could raise in answer to that contention.  This is that these warnings did not constitute a notice given by the Attorney‑General, or his delegate, of an intention to consider the exercise of his powers, and an indication by that statutory officer that he was open to receiving submissions from the applicant before making a decision.  It appears to me that the applicant has arguments that the terms of the correspondence appeared to shut out the applicant from an opportunity to be heard, rather than the converse.  These are issues also which, in my opinion, are better left to a final hearing.
10. For the above reasons, I am satisfied that the applicant has raised an arguable case for the giving of relief in relation to the matter he brings before the Court.  That relief being by way of declaratory orders in relation to the validity of the purported cancellation of the criminal justice certificate and of the consequential cancellation of the criminal justice visa, and of the applicant’s status as a non‑citizen currently liable to removal from Australia.  It is therefore appropriate to make further directions allowing the proceeding to be prepared for a final hearing.
11. This conclusion also means that I am satisfied that there is a serious case to be tried in relation to those issues, such as to warrant the granting of interlocutory relief to the applicant to prevent his removal from Australia pending the completion of the proceeding.  The applicant is under formal notice of such a threat.  He was today served with a “Notice of Your Removal From Australia”, foreshadowing an intention to remove him from Australia in two days time.
12. The applicant orally requested the Court to make an interlocutory injunction restraining his removal.  In the circumstances, I consider it appropriate to dispense with any formal rules in relation to the making of an interlocutory application.
13. In my opinion, the balance of convenience plainly points in favour of the applicant being allowed to continue in Australia to properly instruct lawyers and to present his evidence and submissions to the Court.  He has an arguable case which would find a lawful right of residence, and this right is at risk if he is removed before the completion of the proceedings.  The Minister has not presented any evidence or submissions suggesting that there is any reason why the applicant should not be allowed to continue in Australia until the Court has a proper opportunity to determine the issues in this case on a final basis.
14. I am therefore satisfied that an interim injunction should be immediately issued.  It will grant the Minister and the applicant an opportunity to apply to the Court for further orders, including, if the applicant sees fit, for his interim release from detention.
15. It appears to me that this is a case where the interests of the administration of justice point in favour of the applicant having legal representation to explore the evidence and the arguments he needs to present to the Court.  The applicant informed the Court on the last occasion that he had not been able to obtain legal assistance while he was in detention, and he informed the Court today that the solicitors that acted for him in early 2008 no longer act for him and no longer have his confidence.  In those circumstances, I propose to make a referral under Part 12 rule 3 of the Federal Magistrates Court Rules 2001 (Cth) to the District Registrar, to see if a lawyer from the Court’s pro bono panel can be arranged.
16. In all the circumstances of this case, I consider that it should be given reasonable expedition, but it appears to be now little different than other cases coming before this Court where an applicant is held in detention.  No consideration has been put before me indicating a need for it to be rushed, in the sense of being brought on for hearing in the next few weeks.  I consider a sufficient timetable should be set for the preparation of the case, including time for the District Registrar to make arrangements for the applicant to be represented and for that person to take proper instructions from the applicant and present a properly formulated amended application and evidence, and for the respondents to respond.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  12 March 2009