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ZHANG v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 458

MIGRATION – Attorney-General’s decision to cancel criminal justice certificate – no hearing afforded – breach of natural justice – whether futile to grant relief – possibility of different decision – decision quashed – consequential relief in relation to criminal justice visa – order restraining Minister for Immigration from acting on invalid cancellation.

Migration Act 1958 (Cth), ss.141, 142, 147, 150, 162, 164, 476

Lee & Ors v Minister for Immigration & Citizenship [2007] 159 FCR 181
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Santa Sabina College v Minister for Education (1985) 58 ALR 527
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
Wasfi v Commonwealth of Australia (1998) 83 FCR 16
Zhang v Minister for Immigration [2009] FMCA 196

Applicant: KUANG LUN 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: 12 May 2009

Delivered at: Sydney

Delivered on: 12 May 2009

REPRESENTATION
Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondents: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

THE COURT DECLARES THAT:
(1) The subclass 951 Criminal Justice Stay Visa granted to the applicant on 24 June 2004 has not been cancelled pursuant to s.164 of the Migration Act 1958 (Cth).
THE COURT ORDERS THAT:
(2) A writ of certiorari issue directed to the second respondent, quashing the decision of the delegate of the second respondent dated 24 April 2008.
(3) The first respondent, by himself, his officers and agents, is restrained from removing or deporting the applicant for so long as the Commonwealth Criminal Justice Stay Certificate signed in relation to the applicant on 18 June 2004 remains in force.
(4) The parties have liberty to apply for further orders arising from the making of the above declaration and orders.
(5) The respondents pay the applicant’s costs taxed as agreed or in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY
SYG 327 of 2009
KUANG LUN 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. I addressed this matter at an interlocutory stage in Zhang v Minister for Immigration [2009] FMCA 196. Mr Zhang had filed his application while he was held in immigration detention, acting without legal representation. He presented several grievances to the Court, one of which appeared to me to raise a serious question for trial. This was the validity of a decision of the Attorney-General made on 24 April 2008 under s.162 of the Migration Act 1958 (Cth), to cancel a criminal justice certificate which had been issued to the applicant, and upon which a criminal justice visa had been issued. If valid, the decision had the effect of automatically cancelling Mr Zhang’s visa pursuant to s.164 of the Act, and converting his immigration status to that of an unlawful non-citizen who was liable to detention and removal from Australia. As I shall explain, I have now concluded that the Attorney-General’s decision was invalidly made, and that the opinion of the Minister for Immigration that Mr Zhang is an unlawful non-citizen is therefore incorrect.
2. The background history and legislation which I set out in my earlier judgment is not contested, and I shall not repeat it. Some additional evidence concerning the decision-making within the Attorney-General’s Department has been received, and I shall outline its effect below. Otherwise, my earlier judgment should be read as a preamble to the present judgment.
3. In accordance with my directions which listed the matter for today’s hearing, Mr Zhang received the very great benefit of obtaining legal representation with the assistance of the Legal Aid Commission of New South Wales. The availability of his legal representation, aided by the sensible submissions of the respondents’ counsel, has considerably focused the issues in the case, and has been of important benefit to the Court in the present matter.
4. Mr Zhang now relies upon a further amended application, which seeks relief only in relation to the Attorney-General’s cancellation of the criminal justice certificate, and consequential relief by way of a declaration as to the continuance in force of his criminal justice visa. He today applied orally to further amend the application, by seeking an injunction restraining the Minister from acting upon his previous opinion that the criminal justice visa had been automatically cancelled as a result of the Attorney-General’s decision. The amendment was not opposed. It has a procedural attraction, in that it provides the application with a secure foundation for this Court’s jurisdiction under s.476 of the Migration Act, by invoking the similar Constitutional jurisdiction to issue an injunction against an officer of the Commonwealth.
5. The application relies on two grounds to establish the invalidity of the Attorney-General’s decision. The first ground alleges a breach of obligations of natural justice, based on principles examined by Merkel J in Wasfi v Commonwealth of Australia (1998) 83 FCR 16, which I discussed in my earlier judgment. The second ground addresses the evidence which was before the delegate of the Attorney-General before making her decision under s.162. It is contended that the evidence provided, in law, no sufficient foundation for the making of the decision, so that it was a decision which the legislation did not permit.
6. Neither of these grounds requires an investigation of the decision-making within the Department of Immigration concerning Mr Zhang, and the background concerning this is sufficiently found in my earlier judgment. As will appear, the documents produced by the Attorney-General shed no additional light upon the reasons why, after about four years, it was decided within the Immigration Department that Mr Zhang’s presence in Australia was no longer desirable. Due to the focusing of Mr Zhang’s case upon the Attorney-General’s decision, it became irrelevant for him to explore the actions of the Department of Immigration.
7. The Attorney-General’s documents show that the original criminal justice certificate was granted by a delegate on 18 June 2004, in response to a facsimile request from the Fraud Analysis Unit of the Department of Immigration and Multicultural Affairs dated 18 June 2004. It said: “As discussed briefly by telephone yesterday, DIMIA has agreed to cover costs for eleven witnesses (plus five children) in relation to a current investigation”. There is no record of what was said in those earlier discussions. The facsimile named the persons, and said: “Please consider the grant of CJC’s for these witnesses as they approach DIMIA to regularise their statuses”.
8. The facsimile included a large number of attachments, which appear to have been separate forms for each person, headed “request for criminal justice stay visa” and signed by a ‘requesting officer’. Only the form concerning Mr Zhang is in evidence. The information in the form said that Mr Zhang was not regarded as a danger to individuals and to people in general in Australia, and that “subject will remain in contact with and under supervision of Fraud Control and Compliance, Sydney”. The question “Why is the above-named required in Australia?” was answered only with the statement: “Witness for DIMIA in an investigation of Migration Act offences”. It was suggested that the likely duration of Mr Zhang’s stay in Australia would be six months. His address was identified, and it was suggested that he was not “likely to abscond” or “not cooperate” with his “removal from Australia”.
9. On this evidence, there was no documented information before the delegate of the Attorney-General in 2004 concerning the nature of the “current investigation” in which it was thought Mr Zhang could be a “witness for DIMIA”. Although the officers of the Attorney-General’s Department sought more information concerning the necessity for the issue of certificates at that time, they did not call for more information about the nature of the investigation and the nature of the evidence then considered to be available to DIMIA from Mr Zhang and required for the purposes of that investigation. Nor is there any evidence that this information ever reached the Attorney-General’s Department over the subsequent years.
10. The Attorney-General’s Department documents concerning the cancellation of the certificate four years later also proceeded upon the assumption that it was sufficient to receive totally uninformative requests from the Department of Immigration. An email dated 14 April 2008 from an officer of the Department of Immigration & Citizenship ‘NSW Fraud Control and Investigations’ unit, was sent to the case support officer, Mutual Assistance and Extradition Branch of the Attorney-General’s Department. It referred to the applicant by name and date of birth, and said:
The above named was issued a CJC on 18 June 2004 and a CJV on 24 June 2004.
Mr Zhang is no longer required to give evidence in the matter for which he was issued the CJC.
Grateful if you could please arrange for the cancellation of the CJC to take effect on Monday 28 April 2008.
Thanking you in advance for your assistance.
11. No additional information was provided, and none was sought. The case support officer prepared a minute to her Assistant Secretary, who was invited to exercise the powers of a delegate of the Attorney-General. The minute said:
Criminal Justice Certificate – cancellation of section 147 certificate – Kuanglun Zhang.
On 18 June 2004, Robin Warner issued a section 147 criminal justice certificate (CJC) for Mr Zhang. Mr Zhang was required in Australia to assist DIAC with investigations into offences under the Migration Act.
2. DIAC confirms that Mr Zhang is no longer required to give evidence and has requested that Mr Zhang’s CJC be cancelled effective 28 April 2008.
3. Subsection 162(1) of the Migration Act 1958 (Cth) provides that if the presence in Australia of a non-citizen in respect of whom a CJC was given under section 147 is no longer required for the purposes for which the CJC was given then the Attorney-General is to cancel the CJC. You are a delegate of the Attorney-General for this purpose.
4. In accordance with subsection 162(2) of the Migration Act 1958 (Cth), DIAC was notified of the intention to cancel the CJC for Mr Zhang on 14 April 2008.
Recommendation
5. Please sign and date the attached cancellation certificate, which has been cleared by Helen Drew.
12. On the evidence before me the delegate was given no other information about the reasons why Mr Zhang was no longer required to give evidence. Moreover, the Attorney-General Department’s file on the matter did not contain any such information, nor explaining why the certificate had been requested and granted in 2004. None of the details or background of the inquiry into the actions of a migration agent, in which Mr Zhang had been cooperating with the Department of Immigration Fraud Unit, was before the delegate for the Attorney-General. Nor did the delegate see any of the correspondence between Immigration Department officials and Mr Zhang and his solicitors, including the letters which I extracted in my earlier judgment. There appears to have been no concern within the Attorney-General’s Department whether Mr Zhang should be warned or consulted about the cancellation of the certificate, notwithstanding its effect on his right of residence in Australia.
13. The delegate responded to the minute by signing it at its bottom with the indication that it was approved, and dated it 24 April 2008. A certificate of cancellation was then issued on the same day, in the terms which I extracted in my earlier judgment.
14. In their submissions, the respondents concede that I am bound to follow Merkel J’s opinion in Wasfi at page 29C, that “the Attorney-General was bound to comply with the rules of natural justice when making his decision under s.162(1)”, although they reserved their position in the event that the matter goes further.
15. The respondents also concede, contrary to the submission which was made to me at interlocutory stages, that Mr Zhang was afforded no hearing by the delegate of the Attorney-General before she made her decision, and was denied an opportunity to make any submissions on why the criminal justice certificate should not be cancelled by the Attorney-General.
16. The respondents did not contend, as was accepted by Merkel J in Wasfi, that the general obligation to comply with the rules of natural justice did not apply in the particular case on the ground that giving Mr Zhang an opportunity to be heard would “frustrate the object of purpose of conferring the power to make the decision in this case.” (see Wasfi at page 29(E)). Such a contention would not have succeeded, since there was no evidence before the delegate, or before me, that Mr Zhang was not a cooperative and willing person. Indeed, the evidence points to his keen desire to assist in the investigation into the matters which he witnessed, to co-operate with immigration officials, and to stay in Australia while doing that.
17. However, the respondents rely in answer to the natural justice ground, upon the alternative basis upon which Merkel J refused relief in Wasfi. This was explained in his judgment from page 29G to 31D, and I shall not extract the whole passage. In short, he decided that relief would be refused by the Court because “the applicant’s claim on that ground would fail in any event on the basis that the same decision was required in law to have been made”. He summarised the basis for a discretionary refusal of relief in his concluding paragraphs:
It is necessary to emphasise, as the Court did in Mobil at 19, the “exceptional character” of the discretion to refuse relief in respect of a decision made in breach of the rules of natural justice. However, it is appropriate to exercise the discretion if inevitability of the same outcome is clearly established.
For the reasons set out above I have concluded that the Attorney-General was “bound in law” to cancel the criminal justice certificate under s 162(1) and accordingly, the applicant was not deprived of the possibility of avoiding the making of that decision by a denial of natural justice. It follows that if, contrary to my view, there was a failure to comply with the rules of natural justice that does not have the result that the applicant is entitled to any relief in respect of it.
18. Merkel J discussed various authorities concerning the refusal of relief on grounds of inevitablility, notwithstanding a failure to afford a right of procedural fairness to a person affected by a statutory decision. These included Beaumont J’s opinion in Santa Sabina College v Minister for Education (1985) 58 ALR 527 that it is difficult to conceive of exercising the discretion “if it is ‘possible’ that the end result might not be the same”.
19. The authorities recently cited by Kirby J in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [54]-[59] suggest that the onus is on a respondent to satisfy a court that the grant of relief would be futile because the breach of law could not have affected the outcome. The majority judgment in SZBYR also referred to discretionary principles in relation to refusal of constitutional relief. At [28]-[29], their Honours cited R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, which suggests that a writ might not be granted “if no useful result could ensue”. Their Honours, in the case before them, suggested that relief should be refused because, even if there had been a breach of s.424(A) of the Migration Act the applicants “cannot overcome the Tribunal’s finding that their claims lack the requisite convention nexus.” This statement is ambiguous whether their Honours thought it was sufficient so to characterise the past decision of the Tribunal, or were contemplating the same reasoning as inevitable in a hypothetical decision by a Tribunal which followed correct procedures. The latter view of their Honours’ statement might appear to accord with authority (see Besanko J in Lee & Ors v Minister for Immigration & Citizenship [2007] 159 FCR 181 at [48], which Moore and Buchanan JJ agreed).
20. The respondent submitted to me that it would be futile to grant relief to Mr Zhang in the present case, in that no different outcome other than cancellation of the certificate was conceivable as a real possibility, if Mr Zhang had been given an opportunity to make submissions to the Attorney-General in the past, or was in the future given an opportunity to make submissions, on why his criminal justice certificate and visa should not be cancelled. It was submitted that, taking into account the delegate’s past acceptance of the Department of Immigration’s terse requests, there is no prospect that the Attorney-General’s delegate would have made any different decision, or taken any further action, after receiving submissions from Mr Zhang.
21. The parties’ submissions concerning this contention took me into territory which overlapped the second ground of the application. This concerns the legally relevant considerations which, as a matter of law, may or must inform a decision of the Attorney General under s.162. It takes me into the construction of the relevant provisions of the Migration Act, and it is useful for me to set them out afresh.
22. Provision for “Criminal Justice Visitors” is made in Div.4 of Pt.2 of the Act, where s.141 identifies the objects of the division:
This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non citizen, that non citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration.
23. S.142 gives a particular definition to the term “administration of criminal justice”:
administration of criminal justice means:
(a) an investigation to find out whether an offence has been committed; or
(b) the prosecution of a person for an offence; or
(c) the punishment by way of imprisonment of a person for the commission of an offence.
24. The Attorney-General’s power to grant a certificate is conferred by s.147, and the power to cancel a certificate is set out in s.162:
147 Commonwealth criminal justice stay certificate
If:
(a) an unlawful non citizen is to be, or is likely to be, removed or deported; and
(b) the Attorney General considers that the non citizen should remain in Australia temporarily for the purposes of:
(i) the Extradition Act 1988; or
(ia) the International War Crimes Tribunals Act 1995; or
(ib) the International Criminal Court Act 2002; or
(ii) the Mutual Assistance in Criminal Matters Act 1987; or
(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
(c) the Attorney General considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non citizen for the relevant purposes or the non citizen or both will meet the cost of keeping the non citizen in Australia;
the Attorney General may give a certificate that the stay of the non citizen’s removal or deportation is required for the administration of criminal justice.

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.
25. Counsel before me debated the ambit of permissible considerations by the Attorney-General under these provisions, both when granting a certificate and when cancelling it. They also canvassed the reasons why Parliament has given this power to the Attorney-General and not to the Minister responsible for the Migration Act, notwithstanding that it is a power which effectively governs the grant of permission to stay in Australia and the Minister’s power to remove someone from Australia. In this respect, s.150 provides: “If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported”. Section 164 provides that if a criminal justice certificate is cancelled “any criminal justice visa granted because of the certificate … is cancelled and the Minister is to make a record of the cancellation”.
26. In relation to the present case, the respondents conceded that the grant of a certificate concerning Mr Zhang involved a decision under s.147(b)(iii), requiring the Attorney-General to form an opinion about the desirability of his remaining in Australia for the purposes of “the administration of criminal justice in relation to an offence against a law of the Commonwealth”, in so far as this involved a proceeding coming within the definition of “the administration of criminal justice”. That is, within the context of a proposed investigation, prosecution or punishment of a person.
27. It was not submitted that the Act required the Attorney-General to assume the existence of such a proceeding upon the presentation of a formal request for a certificate from an Australian prosecuting agency or other source. The respondents accepted that s.147(a)(iii) allowed the Attorney-General to be better informed about the relevant criminal proceeding than he was in the present case, and to seek more information about the proposed investigation, prosecution or punishment before the issue of a certificate. In effect, they conceded that it was open to the Attorney-General to form his or her own opinion on the desirability of a person remaining in Australia for the purposes of a particular criminal proceeding, and to defer making a decision until the Attorney-General was sufficiently informed about the proceeding and the possible reasons for the person remaining in Australia. In relation to the second ground, they submitted that it was also open, as a matter of law, to the Attorney-General to rely totally upon an unparticularised request from a prosecuting agency, which gave that agency’s opinion about the desirability of the person remaining in Australia.
28. A construction of the Attorney-General’s power to grant a certificate which gives him or her a real power to assess the particular circumstances, and to form his or her own opinion, on the matter must, in my opinion, be clear. The identification of the Attorney-General as the repository of an extraordinary immigration power suggests that a substantial opinion is intended to be formed in a real rather than mechanical process of decision-making. The context provided by this and other paragraphs of s.147(b) points to an expectation that considerations bearing upon Australia’s international obligations and the Commonwealth’s participation in criminal enforcement measures are expected to arise, in which it is more appropriate that the Attorney-General rather than the Minister should exercise relevant immigration powers. It follows from these points, that the Act does not intend the Attorney-General to be bound to act as a mere rubber stamp to requests from agencies of the Commonwealth involved in criminal investigation, prosecution and punishment other than the Attorney-General.
29. The power to cancel a certificate under s.162(1) falls to be considered in the context of the power to grant a certificate. The reference to “is no longer required for the purposes for which it was given” clearly invites a reference back to the purposes listed in s.147(b), and the opinion which the Attorney-General is expected to have earlier made under s.147. If so, the same breadth of considerations which could inform a decision under s.147 about the desirability of a person remaining in Australia could inform a decision about whether this has ceased.
30. It was submitted by the respondents that a more narrow meaning should be given to the opening words of s.162(1), so that it referred only to the particular purpose which had previously been accepted in the decision to grant the certificate. In many cases, it might be appropriate to address the power in that manner, and the distinction may not be material. In the present case, there is no issue that the particular criminal investigation for which Mr Zhang’s certificate was granted has not yet concluded, and he has presented his case to the Court upon the basis that he wishes to persuade the Attorney-General that the investigation and prosecution should continue, and continue to be aided by his assistance as a potential witness. I therefore do not need to decide whether the Attorney-General can consider the interests of the administration of criminal justice in relation to the investigation, prosecution and punishment of criminal offenders beyond the scope of the request which gave rise to the grant of a certificate, when deciding whether or not to cancel the certificate.
31. At least, in my opinion, the power to cancel a certificate allows the Attorney-General to consider the investigation, prosecution or punishment (in this case the investigation) upon which the certificate was granted, to obtain information about it, and to call for an explanation as to the reasons why it would be appropriately cancelled. I do not accept, although it was not put in this way by the respondents, that the Attorney-General is legally bound to accept and act upon an unexplained opinion by a prosecuting authority that a criminal justice certificate is no longer required in relation to a person’s remaining in Australia.
32. Once it is accepted that the Attorney-General must form his or her own opinion under s.162 whether a certificate is no longer required for the purposes for which it was granted, then the present decision might not appear to be as simple as it appears in the minute which was sent to the present delegate. In my opinion, a much broader range of information could have been relevantly presented to the present delegate, other than the bald statement that “DIAC confirms that Mr Zhang is no longer required to give evidence and has requested Mr Zhang’s CJC be cancelled effective 28 April 2008”. Given the terseness of this information, and putting aside whether it was legally sufficient to support an exercise of the power, it becomes very difficult to predict how the Attorney-General’s consideration might have developed if Mr Zhang had been afforded natural justice.
33. There is some, far from complete, evidence before me from Mr Zhang concerning the background to his involvement in the Department of Immigration investigation. This gives some indication of submissions he might conceivably have wished to make to the Attorney-General, if invited to make submissions upon the Department of Immigration’s request to the Attorney-General to cancel his criminal justice visa. Inevitably, he would have given more information about the investigation than had reached the Attorney-General’s Department from the Department of Immigration. He might have been able to point to information showing his continuing usefulness to an investigation and prosecution which had not yet come to fruition. In the absence of better evidence before the Court about the investigation of the suspect migration agent, it is impossible for the Court to rule out this as a possibility.
34. I also consider it likely that he would have wished to draw attention to the background of his involvement in the investigation, suggesting that he had been induced to stay in Australia for a very protracted time by promises of residence, and to other considerations going to the fairness of his treatment as a witness. In this context, he might also have wished to draw attention to the general considerations of the administration of criminal justice by the Commonwealth, in relation to its treatment of cooperative witnesses from overseas countries, and their bearing on his treatment in relation to his continuing permission to stay in Australia.
35. The respondents submitted that considerations going only to the fairness to Mr Zhang of cancelling the certificate would have been legally irrelevant to the Attorney-General, because the purposes of the power were confined by the definition of “the administration of criminal justice” to the assessment of the desirability of a particular person’s presence in Australia for an investigation, prosecution or punishment. From that perspective, the broader context and fairness of the cancellation of a certificate would not provide material or relevant considerations for the Attorney-General. Their submission pointed to the fact that the Migration Act confers on the Minister for Immigration various discretions and powers allowing consideration of issues of fairness generally in relation to non-citizens remaining in Australia. There is some substance in that submission, but and I do not need to decide whether these parts of Mr Zhang’s grievances could have been addressed by the Attorney-General.
36. What is clear, in my opinion, is that the power in s.162 does encompass a power, if not an obligation, on the Attorney-General to be satisfied as to the appropriateness of the cancellation of a certificate requiring the continuing presence of someone in Australia, from the perspective of the particular investigation, et cetera, for which the certificate was actually granted in the past. Once that construction is taken then, I am not in the present case prepared to conclude that the present decision of the delegate was inevitable. I do not find it impossible to conceive of submissions being made by Mr Zhang to the Attorney-General which might have caused a different response to the minute which was before the delegate.
37. For example, Mr Zhang may have pointed to reasons why the prosecutors had wrongly assessed his benefit to a potential prosecution, which apparently was still ongoing. In circumstances where previously the matter had been regarded as not warranting the calling for the slightest piece of information about the ‘investigations into offences under the Migration Act’ being conducted by the Immigration Department fraud unit, it might not have taken much to spur a delegate of the Attorney-General to call for some information. In the absence of any information about the basis upon which the fraud unit proposed to dispense with Mr Zhang’s presence in Australia as a witness, it might not have taken much to spur a delegate into some inquiry about this. If Mr Zhang also had pertinent reasons for believing that he was still a useful witness, then it is conceivable that the delegate might even have invited the relevant agencies to reconsider whether he should remain in Australia as a useful potential witness.
38. I can readily imagine Mr Zhang being able at least to have caused the delegate to defer making a decision, and to call for more information from the prosecuting authorities. Such a call would have been well consistent with the traditional role of Attorney-General which appears to be reflected in these sections of the Migration Act. Even if the Attorney-General and his delegate took the view that it was inappropriate to dictate to a prosecuting authority the appropriate course of an investigation into a possible criminal prosecution, at least there is a possibility in the present case that the Department of Immigration’s request for the cancellation of Mr Zhang’s certificate would have been decided differently.
39. In my opinion, the exercise of power which faced the delegate in the present case did require a consideration such as was described by Merkel J in Wasfi as involving, or potentially involving, “a judgment based on evaluation and weighing up of facts and circumstances.” The respondent’s submissions have not dispelled from my mind the possibility that the delegate’s evaluation of the situation might have been different, if Mr Zhang had been given an opportunity to make submissions before the present decision was made in the past, or might be made afresh in the future.
40. For the above reasons, I am not satisfied that the breach of procedural fairness, which was conceded before me, should not give rise to the grant by this Court of appropriate relief. In view of the past position taken by the Minister for Immigration in relation to Mr Zhang’s detention and proposed removal from Australia, relief should include an injunction restraining the Minister from implementing the misconceived opinion that the applicant’s visa had been automatically cancelled under s.164. It should also include a declaration explaining that injunction, and a writ of certiorari quashing the purported exercise by the Attorney-General’s delegate of the power under s.162 of the Act.
41. My conclusion that a breach of natural justice justifies the grant of the relief which was sought, means that I do not need to address the second ground upon which it was contended that the delegate’s decision was invalidly made.
42. Mr Zhang remains in immigration detention, and has been brought to Court today. The respondents have not pointed to any power for him to be kept in detention if he is currently the holder of a criminal justice visa which has not been cancelled. In those circumstances, I think it appropriate to make my orders immediately, subject to any application for a stay which the respondents might make. Relief is not otherwise sought by Mr Zhang in relation to his past or current detention, and I do not propose to make any orders in that respect, although I shall grant liberty to apply.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 20 May 2009