[2010] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney                                      No S283 of 2009

B e t w e e n -

KUANG LUN ZHANG

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ATTORNEY‑GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GUMMOW J

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2010, AT 12.12 PM

Copyright in the High Court of Australia

MR G.C. LINDSAY, SC: May it please the Court, I appear for the applicant with MR J.F. GORMLY.  (instructed by Wang and Associate Solicitors)

MR S B LLOYD, SC: Your Honour, I appear with MS A.M. MITCHELMORE for the Minister.  (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Lindsay.

MR LINDSAY: May it please the Court.  There are two classes of special leave question proposed for the Court’s consideration.  The first relates to the question whether the Migration Act impliedly excluded the principles of procedural fairness from application to a decision under section 162 of the Act to cancel a criminal justice stay certificate, which had been given to a witness pursuant to section 147.  The second class of question relates to whether section 162 required the Attorney-General, in deciding whether or not to cancel such a certificate, to form an independent judgment about whether the certificate was, to quote the section, “no longer required for the purposes for which it was given”.  The legislation is conveniently extracted in the reasons for judgment of the federal magistrate in the application book at pages 32 and 33.

If I may turn to the first of the two classes of question, the applicant submits firstly that if the principles of procedural fairness were not excluded from the Act procedural fairness was on the facts of this case denied.  That appears to have been the view taken by the court below in the application book at pages 58 to 59, paragraphs 70 to 72.

The second point we make is that in our submission, the Federal Magistrate was correct in his analysis of the case at pages 35 through to 39 of the application book.  We submit further that the reasoning of Justice Merkel in Wasfi v the Commonwealth, upon which the Federal Magistrate relied ‑ ‑ ‑

GUMMOW J: Just interrupting you for a minute.  The Court heard an appeal yesterday in the matter of Saeed v the Minister, which Mr Lloyd is up to speed on, which raises questions of the construction of the Migration Act, in particular, section 51A, is it not, and the general connection between the Migration Act and what one might call principles of national justice.  There may be something to be said for standing over this application until we have decided Saeed.  I do not know if you are familiar with Saeed.

MR LINDSAY: I am not, no.

GUMMOW J: Let me just ask Mr Lloyd.

MR LLOYD: I think I understand, your Honour, that there is potential overlap on some points, but we would say this is not a case affected by section 51A.

GUMMOW J: No, that is so.  Remember there was some discussion generally in submissions as to what we mean when we talk about the rules of natural justice in this context of the Migration Act, and federal law generally.

MR LLOYD: I understand.  I suppose all I would say in respect of that, given your Honour put it so broadly, that this is a case in which the court below found that there was this jurisdictional fact which had to be determined by section 162, whether or not the applicant was no longer required.  The only evidence ‑ ‑ ‑

GUMMOW J: What was the actual source of the statutory decision?

MR LLOYD: Section 162.

GUMMOW J: Do we see that set out?

MR LLOYD: Yes, on page 33, at the bottom of the page, around about line 40.  So a certificate having been granted, and we would say granted for the purposes of allowing his presence for the purposes of an investigation and potential prosecution – then there was evidence, and the only evidence that went to that point was a letter referring to the fact the DPP had said that he was no longer required for that investigation or prosecution.  That is what led to the Attorney forming the view that section 162(1) was activated and then cancelling it.

GUMMOW J: The jurisdictional fact was the “no longer required”, if the presence is no longer required.

MR LLOYD: That is so, and perhaps if I put it this way.  What I am saying is that even assuming, because the Court is looking at this natural justice issue, what we are saying is in this particular case, there would be futility because we argue that the only evidence before the court below was that he was not required.  While he said he might have had a chance to go to tell the Attorney why he might have been a good witness or some such thing, we say it is not the Attorney’s role to decide those things.  That is for the DPP or the investigator to decide.  The Attorney is standing apart from that, so it is not within his scope of what he has to do.  If the DPP say they do not want him, then they do not want him and that is the end of the matter and that defines reflection in the decision of the court below at ‑ ‑ ‑

GUMMOW J: You are saying, I think, that the jurisdictional fact here is one that is just not susceptible to a natural justice process.

MR LLOYD: That is so, yes.  That is reflected in paragraphs 120 and 121 of the court below.

GUMMOW J: Yes.

MR LLOYD: Then the other matter which is raised in the special leave application is the fact that there is an allegation that ‑ ‑ ‑

GUMMOW J: I will put it another way.  What would have to be controverted would be that he was required.

MR LLOYD: That is so.

GUMMOW J: “Required”, I suppose, means required by the authorities with the conduct of the proceeding.

MR LLOYD: Yes, and to be fair, the federal magistrate said he could have gone to the Attorney and said that he would have been a good witness, and he could add things.  That is in the federal magistrate’s reasoning, for example, at paragraph 33 on page 37.  He would have given more information about the investigation – those are things that he could have said.  “He might have been able to point to information” – that is the kind of thing which a magistrate no doubt moots could have been said, and we say it was not the Attorney’s role in the scheme to decide that.  It is either a fact that he was required or not.  It is really for the DPP to decide, not for the Attorney to decide.

GUMMOW J: Thank you.  Yes, Mr Lindsay.

MR LINDSAY: So far as it may be relevant, if the Court were minded to stand the application over until judgment is delivered in Saeed ‑ ‑ ‑

GUMMOW J: The question is whether it would be useful to do so.

MR LINDSAY: I cannot do more than say that if the Court were minded to do that, we would not stand in the way of that, but otherwise ‑ ‑ ‑

GUMMOW J: You had better develop your submissions.

MR LINDSAY: Thank you.  If your Honours will just go to the application book at pages 32 and 33, your Honours will see that there is an interplay between section 162 which is reproduced ‑ ‑ ‑

GUMMOW J: What do you say your client would wish to have done, and what possible consequence could that have had for the operation of the ‑ ‑ ‑

MR LINDSAY: The material before the Court was to the effect that the applicant had been induced to co‑operate with the authorities as a witness for the purpose of assisting an investigation in relation to another party.  This case factually is distinguished therefore from all the other cases where the issue has been considered because they all concern people who were either accused or convicted.

We submit that in considering what evaluative decision would be made for the purpose of section 162, which ties back to section 147, it would be appropriate to consider whether there were any inducements offered to a witness and it could not be said merely because a DPP – not the Attorney‑General, a DPP – had formed an unexplained view, a conclusion, if you like, that a witness was no longer required by him, that there were the grounds set out for section 162 to operate.

We have an unusual situation where a witness is approached by the Department of Immigration, made promises about the prospects of obtaining a permanent visa if there was co‑operation, the co‑operation is given and it is given for some four years, not six months as was initially anticipated.  The Department of Immigration then sends a letter saying “You are no longer required because the DPP says you are no longer required”, and about the same time, the Department of Immigration sends a bare communication to the Attorney-General’s Department saying “This witness is no longer required.  Please make arrangements to cancel the certificate”.  The evidence is that with that bare request and nothing more – no inquiries, no further information provided – a delegate of the Attorney purported to effect a cancellation.

BELL J: The Attorney or his delegate was under an obligation in the event that the fact in section 162(1) was established, namely that the non‑citizen is no longer required.  The determination was based on the communication with the Director of Public Prosecutions had so indicated.  It is the function of the Director of Public Prosecutions to make such a determination, surely.

MR LINDSAY: In our submission, it is significant that in section 162, and also in section 147, the Act confers a power, a function, on the Attorney‑General – not on anybody else – on the Attorney‑General, and specifically in the context of the Act, not on the Department of Immigration.  In our submission, a judgment about whether or not the section 162 fact exists has to be made by the Attorney.

In the formation of that judgment, in our submission, and on the case that we advance, it would be necessary for the Attorney or the Attorney’s delegate to turn attention to the facts underlying the grant of the certificate in order to make an evaluative decision about whether or not the witness was required.

In our submission, in the course of doing that, the Attorney could receive – perhaps should receive – any representations that are made about inducements that are, or were, held out to the witness in securing co‑operation.  The difference between us is that on the respondent’s side of the record they say none of that is necessary.  All that the Attorney needs to do is get a bare request from the Department of Immigration.  Nothing more is required, and ‑ ‑ ‑

GUMMOW J: The Attorney‑General under the present system stands outside the activities of the DPP.

MR LINDSAY: The Attorney‑General – this is a statutory power and function conferred on the Attorney ‑ ‑ ‑

GUMMOW J: But in terms of the criminal prosecution.  The statutory scheme in the Commonwealth is that the Attorney‑General stands outside.

MR LINDSAY: It is the Attorney, yes, which has the powers and the function, the duty, under section 162.

GUMMOW J: In effect, to put it pejoratively, does not meddle in what the DPP is doing.

MR LINDSAY: The statute confers a power and function on the Attorney‑General.  It is not a power or function ‑ ‑ ‑

GUMMOW J: Under section 162 it imposes an obligation, actually.  That is what Justice Bell was putting to you.  Section 162 imposes an obligation on the Attorney in certain circumstances.

MR LINDSAY: Once the Attorney has formed the view, the judgment, that the fact exists.  In our submission, in order to form that view, the Attorney needs to consider more than just a bare request from somebody in relation to what should be done, a mere request, and the evidence quite clearly suggests there was nothing more than that was done here.  In those circumstances, adopting the reasoning of Justice Merkel, we say it could not be said that the principles of procedural fairness were excluded by the Act in relation to ‑ ‑ ‑

GUMMOW J: The question always is how would they apply?

MR LINDSAY: First of all ‑ ‑ ‑

GUMMOW J: What would happen?  Natural justice is meant to be very practical.

MR LINDSAY: Yes.  In practical terms, for a starting point the Attorney might have asked why is the request made?  The Attorney might have asked what were the circumstances in which the witness was requested?

GUMMOW J: He might have been told, “It is none of your business”.

MR LINDSAY: The Attorney should then inquire, in our submission, how the co‑operation of the witness was required and that might properly be addressed, should be addressed, in our submission, as an invitation to the applicant.  Had that invitation been made it is plain that the Attorney would have been told that a promise was made and it was a promise which requires consideration as to whether or not it should be honoured in all the circumstances in which it was made.

None of that happened in this case because the view was taken, a rather machine‑like decision, that it was sufficient to keep the applicant as a prospective witness hanging there and then simply to dismiss him without any further inquiry.  The scheme of the legislation, in our submission, simply could not permit that.  The Attorney‑General, on our case, as the holder of an office such as that has an obligation to superintend the administration of justice and in the course of doing that one of the matters that might be taken and, in our submission, should be taken very seriously is whether or not the co‑operation of a witness was secured by an inducement.  In our submission that is a factor which would be highly material.

None of that happened.  The applicant was not given an opportunity to bring those matters to the attention of the Attorney.  The two different ways we put the case are first of all in relation to procedural fairness and as I commenced to say the case we make in terms of the legal reasoning is substantially as set out by Justice Merkel in Wasfi.  In our submission the court below erred in refusing to follow that reasoning.  It made that decision at appeal book page 64, paragraph 105.

In our submission the court below also erred in following some general observations about the operation of the Migration Act that were made by Justice French, as his Honour then was, in the case of Goldie and by Justice Lindgren in the case of Lee.  Your Honours can see in short form what those observations are by turning to pages 63 and 64 of the application book.  At page 63 in paragraph 99 Justice French is quoted as saying that on the face of it:

the rules of natural justice are excluded at every stage of the decision‑making process -

Justice Lindgren is paraphrased on page 64 of the application book as saying that:

references to investigation, prosecution and punishment in the definition of the “administration of criminal justice” in s 142 make it clear that the relevant perspective is that of the administrators of the criminal justice system.

Each of those statements was made in an entirely different context.  They were made in a case where the person complaining of a denial of procedural fairness was the subject of investigation.  One may well see that a different approach would be taken to such a person, and in our submission a different approach should be taken, to such a person when compared to a witness who is standing outside the system and who is the subject of an inducement.

The observations made by Justices French and Lindgren in our submission have been taken out of context.  That context is important and in our submission when one is looking at the question whether the rules of natural justice and procedural fairness have been excluded impliedly by the legislation one needs to be quite cautious.

GUMMOW J: The question is whether they applied in the first place.

MR LINDSAY: That is right.  That is true.  This particular case in our submission, adopting what Justice Merkel said, focuses attention on the need for there to be a judgment, a view taken that has an evaluative nature about it.  We say in those circumstances, whether one approaches it from the point of view of saying do the rules apply or have they been excluded, the point is reached by either route where in our submission the proper conclusion is that the principles of procedural fairness do apply.

The other side’s answer to our proposition is that there should be a blanket approach taken.  All decisions made under this particular part of the Migration Act should all of them, at the outset, be the subject of some exclusion of procedural fairness.  In our submission when one looks at the nature of the decisions that could be made under the Act, there is a full range of them, and it is necessary in our submission to have regard to the particular case and it is not the case that a blanket approach could or should be taken.  That is a point of difference between us.  That is a point that, in our submission, points towards a special leave grant being made.

When one comes to the second way the case is put, namely whether or not the Attorney had to form an independent view, we say that the legislation in fact is predicated upon the fact that the Attorney‑General is the guardian of the administration of justice and in those circumstances, to pick up an expression that was used by the federal magistrate – in our submission, he cannot act merely as a rubber stamp and the materials before the Court on this occasion show that that is what the Attorney or his delegate purported to do.

In our submission, whichever way one looks at it, on either of the two classes of ground the questions for determination would warrant a grant of special leave.  Thank you.

GUMMOW J: We will take a short adjournment.

AT 12.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.43 PM:

GUMMOW J: We do not need to hear further from you, Mr Lloyd.

Section 162 of the Migration Act 1958 (Cth) is cast in terms which do not permit that intrusion into the operation of the system of investigation and prosecution in the criminal justice system, which would be the consequence of acceptance of the submissions of the applicant, in particular those made in paragraph 28 of the outline of argument.  Special leave is refused with costs.

We will now adjourn to 2.15.

AT 12.43 PM THE MATTER WAS CONCLUDED

Immigration – Refugees – Review by Refugee Review Tribunal (“RRT”) – Whether failure to make certain inquiries was unreasonable or constituted failure to conduct review within meaning of Migration Act 1958 (Cth), s 414 – Whether failure to inquire constituted jurisdictional error.

 Immigration – Refugees – Review by RRT – Where RRT received allegation that documents provided by visa applicant were “fake & forged”, invited applicant to comment in writing, but failed to invite him to further hearing – Whether such failure amounted to denial of procedural fairness, breach of Migration Act 1958, s 425, or failure to conduct review within meaning of Migration Act 1958, s 414 – Whether allegation of forgery raised new “issue” within meaning of Migration Act 1958, s 425.

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

 NISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZIAI AND ANOR RESPONDENTS

Minister for Immigration and Citizenship v SZIAI
[2009] HCA 39
23 September 2009
S37/2009

ORDER

 1. Appeal allowed.

1.  Set aside orders 1 to 5 of the orders made by the Federal Court of Australia on 8 September 2008, and in lieu thereof order that:

(a) order 2 of the orders made by the Federal Magistrates Court of Australia on 18 June 2008 be set aside; and

 (b) the appeal be otherwise dismissed.

1.  Appellant to pay the costs of the first respondent’s appeal to this Court.

On appeal from the Federal Court of Australia

 Representation

 S J Gageler SC, Solicitor-General of the Commonwealth with G T Johnson and G R Kennett for the appellant and for the Attorney-General of the Commonwealth intervening (instructed by Australian Government Solicitor)

 N J Williams SC with A M Mitchelmore for the first respondent (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

Submitting appearance for the second respondent.

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Migration Act 1958 (Cth), ss 414, 424, 424A, 425.

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ.

Introduction

1. The functions, powers and duties of the Refugee Review Tribunal (“the Tribunal”) are set out in Pt 7 of the Migration Act 1958 (Cth) (“the Migration Act“). When the Tribunal receives a valid application for the review of an “RRT-reviewable decision” under the Migration Act, it must review that decision[1]. The class of “RRT-reviewable decisions” includes decisions by delegates of the Minister for Immigration and Citizenship (“the Minister”) refusing the grant of protection visas[2]. In the exercise of its review function, the Tribunal may obtain such information as it considers relevant[3]. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act[4].
2. In this case the Federal Court, on appeal from the Federal Magistrates Court, quashed a decision of the Tribunal on the erroneous basis that it had committed jurisdictional error by unreasonably failing to undertake its own inquiries into certain matters. Those matters related to the authenticity of documents, provided by the applicant for review, which had been impugned by third party information of which the applicant had been given notice, and to which he had replied in writing[5]. The Minister’s appeal against the decision of the Federal Court must be allowed. A contention that the Tribunal had a duty to invite the applicant for review to an additional hearing to deal with the third party information is rejected.

Factual and procedural history

1. On 11 February 2008, the Tribunal affirmed a decision of a delegate of the Minister to refuse a protection visa to SZIAI, a citizen of Bangladesh. SZIAI claimed to have converted from the Sunni Muslim faith to become an Ahmadiyya Muslim. He said he had been an active Ahmadi and had been the subject of threats, including threats to his life, from Sunni Muslims. He claimed to have a well-founded fear of persecution if he were to return to Bangladesh.
2. In coming to its decision, the Tribunal had regard to a letter from the Ahmadiyya Muslim Association Australia Inc (“the Association”) responding to an inquiry from the Tribunal about whether SZIAI was known to the Ahmadiyya Muslim Jamaat in Bangladesh (“AMJ Bangladesh”)[6]. The Tribunal had sent to the Association copies and translations of certificates produced to it by SZIAI and signed by persons purportedly associated with the Ahmadiyya Muslim Jamaat at Khulna. One of the certificates said that SZIAI had joined the Jamaat there on 1 January 2000. Both certificates said that he had taken a responsible role in the Jamaat and was always engaged in its activities. Both certificates bore mobile telephone numbers, apparently those of their authors.
3. The Association responded to the Tribunal by letter dated 10 January 2008 advising that it had received information from the AMJ Bangladesh. It enclosed a letter signed by Mobasherur Rahman, the National Ameer of the AMJ Bangladesh. That letter said, inter alia:

“Please refer to your letter No 386 dt 25.11.07 regarding [SZIAI]. For your kind information on enquiry our Khulna Jamaat informed me that they could not find out any such name in their record. Both the certificates submit by him are fake & forged. Moreover as you know local Ameer/Presidents can only issue certificates for transfer of a member from one local Jamaat to other Jamaats within the country. Only National Ameer can issue a certificate for international travel/transfer of a member.”

1. On 14 January 2008 the Tribunal, acting under s 424A of the Migration Act, sent a lengthy letter to SZIAI’s solicitors inviting him to “comment on information that the Tribunal considers would, subject to any comments you make, be the reason, or a part of the reason, for affirming the decision under review.” A number of matters were identified. One of those matters was the letter from the National Ameer. A copy was enclosed. The Tribunal said in its letter that the advice from the National Ameer might lead it to conclude that there was no truth to SZIAI’s claims of fear of persecution by reason of his religion if he were to return to Bangladesh.
2. SZIAI’s solicitors wrote back to the Tribunal on 29 January 2008 saying:

“We refer to the RRT’s recent correspondence, inviting comment in relation to information received that suggests that the applicant is not an Ahmadi.
We are instructed to inform the RRT that the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so.
If you have any enquiries please contact me.”

1. In its reasons for decision the Tribunal referred to the correspondence from the Association and the letter from the National Ameer. It set out what it had said to SZIAI in its letter of 14 January 2008 and noted the response. Having regard to the information referred to in its letter of 14 January 2008, the Tribunal concluded that SZIAI was not a witness of the truth and that there was no truth to the claims he had made in support of his application for a protection visa.
2. An application for judicial review was dismissed by the Federal Magistrates Court on 18 June 2008[7]. SZIAI appealed to the Federal Court. On 8 September 2008, Flick J ordered that the appeal be allowed, the orders made in the Federal Magistrates Court be set aside, the decision of the Tribunal be quashed and the matter be remitted to the Tribunal to be determined according to law[8]. Special leave to appeal against his decision was granted by this Court on 13 February 2009. It was granted upon the undertaking by the Minister that he would not seek to displace the costs orders in favour of SZIAI in the Federal Court and that he would bear the reasonable costs of SZIAI of this appeal, including the costs of the special leave application.

The reasoning in the Federal Court

1. Flick J correctly eschewed any suggestion that the power of the Tribunal to make inquiries imposed upon it any duty or obligation to do so[9]. However he also said that “jurisdictional error may be exposed by a failure to inquire and that such a failure may render a decision manifestly unreasonable”[10]. The circumstances in which a Tribunal decision would be set aside on such grounds might be “a confined category of case”[11].
2. His Honour was evidently satisfied that the case before him fell within such a category. The authenticity of the certificates had been placed in issue by the information which the Tribunal had obtained from the Association. The issue to which they were directed was “centrally relevant to the decision reached”. He held with “considerable reservation” that the Tribunal should have made an inquiry of the authors of the certificates[12]. He concluded that the Federal Magistrates Court had erred in not holding that the Tribunal’s decision was vitiated by reason of its failure to make inquiries.

The issues

1. The questions raised by the grounds of appeal and by a notice of contention filed on behalf of SZIAI were:
   1. Whether the Tribunal had committed jurisdictional error by not making its own inquiries in relation to the allegation that the certificates provided by SZIAI were forgeries.
   2. Whether the Tribunal denied procedural fairness, failed to comply with s 425 of the Migration Act, or failed to conduct the review required by s 414 in failing to invite SZIAI to a further hearing following receipt of the allegation that the two documents provided by him to the Tribunal were “fake & forged”.

The jurisdiction of the Federal Magistrates Court

1. The statutory jurisdiction of the Federal Magistrates Court is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution“[13]. The Tribunal’s decision was a “migration decision”[14]. The Federal Magistrates Court could therefore grant relief by way of prohibition or mandamus and, ancillary to such relief, could issue certiorari to quash the decision. However it could only do those things if the Tribunal was shown to have committed jurisdictional error[15].
2. The scope of judicial review in respect of the decision of the Tribunal thus differed from that provided by s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act“) where the grounds of review are laid out without confinement to “jurisdictional error”. Some of the decisions relied upon in the Federal Court turned upon the application of s 5.
3. It has, however, been said in this Court[16] with reference to s 75(v) and jurisdictional error, that where a statutory power is conferred the legislature is taken to intend that the discretion be exercised reasonably. The argument in the present appeal proceeded on the footing that “Wednesbury unreasonableness”[17] could give rise to jurisdictional error.

Tribunal inquiry and jurisdictional error

1. SZIAI complained that failure by the Tribunal to inquire rendered its decision “manifestly unreasonable”. That complaint involves several steps and assumptions. Was there an obligation or duty imposed by the Migration Act to make the inquiries in question? If so, was there deficiency in process which was so linked to the decision reached as to make it manifestly unreasonable?
2. It was not contended at any stage of this litigation that the Tribunal was obliged to exercise the power conferred by s 424 of the Migration Act to “get any information that it considers relevant” and no other specific source of such an obligation was identified. Rather, reliance was placed upon what was said to be the “inquisitorial” nature of proceedings in the Tribunal.
3. It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character[18]. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker,[19] is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”[20]. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.
4. The observation in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[21] that the Tribunal was “bound to make its own inquiries and form its own views upon the claim which the appellant made”[22] was informed by the context, which concerned the requirements, in the circumstances, of procedural fairness. The Court held that procedural fairness had required the Tribunal to tell the applicant the substance of certain allegations made against him by a third party and to ask him to respond to them[23].
5. The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
6. Observations by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs[24], which were said by his Honour to be tentative and unnecessary for the decision in the case, may support such a proposition. However, Wilcox J was dealing with the grounds of review provided by s 5 of the ADJR Act; in particular s 5(1)(e) and s 5(2)(g), which he described as concerned with the manner of exercise of the power in question. Nevertheless, the inquiry under these provisions, as he framed it, was ultimately directed to the unreasonable exercise of a power within the meaning of par (g) of s 5(2).
7. The discussion by Wilcox J in Prasad has been adopted or cited in a number of later cases in the Federal Court. The decisions, not all of which were founded upon the ADJR Act, were collected by Kenny J in Minister for Immigration and Citizenship v Le[25]. In the course of deciding to grant prohibition and certiorari in Ex parte Helena Valley/Boya Association (Inc)[26], the Full Court of the Supreme Court of Western Australia cited Prasad as authority for the necessity for a decision-maker to make inquiries in order to discover appropriate material if it be readily available.
8. The proposition which may emerge from Prasad has not been the subject of full consideration in this Court, whether in litigation under the ADJR Act, or any other statutory regime or under s 75(v) of the Constitution. Some observations by Mason CJ in Chan v Minister for Immigration and Ethnic Affairs[27] have been taken as an indication of a need for decision-makers to make inquiries in relation to claimed changes in the political circumstances in the home country of a person seeking protection as a refugee. However, the legal consequences of a failure to inquire were not discussed in that judgment. In Minister for Immigration and Ethnic Affairs v Teoh[28], Mason CJ and Deane J accepted the correctness of the approach in Prasad in “an appropriate case”[29]. Teoh was not such a case as reliance was not placed on the ground of review under the ADJR Act which was considered in Prasad. McHugh J also made reference to Prasad and other Federal Court decisions to similar effect. But, like Mason CJ and Deane J, he found them inapplicable in Teoh[30]. In Abebe v The Commonwealth[31], Gummow and Hayne JJ rejected a submission that the Tribunal in that case should have made further inquiries. They did so on the basis that “[n]o plausible and possible line of inquiry was suggested”[32]. They did not think it necessary to consider the premise of the submission, namely that the Tribunal was under an obligation to make further inquiries. Nor was it necessary to consider the limits of so-called Wednesbury unreasonableness[33].
9. Mason CJ and Deane J in Teoh also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness[34]. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness.
10. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction[35]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
11. The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
12. No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the Tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.

Conclusion

1. For the preceding reasons this appeal should be allowed and the decision of the Federal Court set aside.
2. A constitutional point raised about the validity of s 422B of the Migration Act does not need to be considered, having regard to the conclusions reached above on the procedural fairness arguments.
3. HEYDON J. The crucial controversies between the parties in this Court turned on two arguments advanced by the first respondent (“the respondent”).

The respondent’s first argument: failure to make inquiries

1. The first argument related to a failure of the Refugee Review Tribunal (“the Tribunal”) to make certain inquiries of Mr Nuruzzaman, Mr Hossain and the Ahmadiyya Muslim Association Australia Inc[36]. Mr Hossain signed a so-called “certification” dated 7 August 2006 produced to the Tribunal by the respondent as evidence of his involvement in the activities of an Ahmadiyya Muslim Jamaat in Bangladesh. Mr Nuruzzaman signed another so-called certification of the same date produced by the respondent for the same purpose. These certifications were frequently called “certificates” in argument, and that description will be employed below.
2. On 10 January 2008 the Ahmadiyya Muslim Association Australia Inc informed the Tribunal that it had received certain information about the respondent. The information was contained in a letter of 8 January 2008 from the National Ameer of the Ahmadiyya Muslim Jamaat, Bangladesh. The letter said: “our Khulna Jamaat informed me that they could not find out [the respondent's] name in their record.” The letter also said: “Both the certificates submit by him are fake & forged.” The respondent submitted that the failure of the Tribunal to make the inquiries was an error going to jurisdiction.

The respondent’s second argument: new “issues”

1. The second argument of the respondent was that an alternative jurisdictional error had been committed by the Tribunal. The argument pointed to the Tribunal’s duty under s 425(1) of the Migration Act 1958 (Cth) (“the Act“). It provides:

“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

In isolating the point of the respondent’s second argument, it is necessary to bear in mind the procedural background.

The background

1. The original decision of the appellant’s delegate refusing the respondent the protection visa he sought was made as long ago as 18 August 2005. This appeal is the culmination of the respondent’s third attempt to have that decision reviewed in his favour. The first attempt was an application to the Tribunal followed by an oral hearing on 16 November 2005. It resulted in the Tribunal affirming the delegate’s decision on 8 December 2005. However, that decision of the Tribunal was quashed by consent orders made by the Federal Magistrates Court. A second hearing then took place on 13 September 2006 before a differently constituted Tribunal. On 26 October 2006 that Tribunal affirmed the delegate’s decision. However, the respondent again enjoyed success in the Federal Magistrates Court: the second Tribunal’s decision was quashed. A third hearing then took place before a differently constituted Tribunal on 9 November 2007. On 19 February 2008 that Tribunal upheld the delegate’s decision. In essence it rejected all the respondent’s claims on credibility grounds. Although an application for judicial review to the Federal Magistrates Court failed, the respondent succeeded in obtaining an order from the Federal Court of Australia allowing an appeal. From that order this appeal is brought.
2. On what basis, then, did the respondent contend that the Tribunal should have given him a hearing additional to the third hearing he received on 9 November 2007? The basis is that a new “issue” arose after that hearing. At that hearing the Tribunal had before it Mr Nuruzzaman’s certificate (sent on 25 August 2006) and Mr Hossain’s certificate (handed over at the hearing). The Tribunal questioned the authenticity of the certificates. It questioned the failure of the respondent to produce a letter from the Ahmadiyya Muslim Association Australia Inc confirming his faith and practice as an Ahmadi. It requested the respondent’s consent to its contacting that Association. Five days later, on 14 November 2007, the respondent’s representatives conveyed that consent (although they also submitted that the Tribunal was biased – an allegation not now persisted in). Accordingly, on 15 November 2007 the Tribunal sent a letter to the Ahmadiyya Muslim Association Australia Inc enclosing the certificates and asking various questions. On 10 January 2008 that Association responded, enclosing the letter of 8 January 2008 from the National Ameer of the Ahmadiyya Muslim Jamaat, Bangladesh, alleging that Mr Nuruzzaman’s certificate and Mr Hossain’s certificate were “fake & forged”. The new “issue”, creating a duty on the Tribunal to invite the respondent to a further hearing, was said in written submissions to be whether the certificates were in truth “fake & forged”. In oral argument it was submitted that another new “issue” had arisen from the 8 January 2008 letter – whether or not the respondent’s name was in the Khulna Jamaat records.

Failure to make further inquiries of Mr Nuruzzaman, Mr Hossain or the Ahmadiyya Muslim Association Australia Inc

1. Whatever the general duty of the Tribunal to make inquiries, and whatever the impact of that duty might be on the conduct of the Tribunal in other circumstances, in the circumstances of this case there is no doubt that the Tribunal was not obliged to make any more inquiries than it did. Hence it is not necessary to seek to formulate that duty in terms capable of application in other circumstances.
2. The third Tribunal decision. The Tribunal was not obliged to make any more inquiries than it did for the following reasons. The third Tribunal decision occupied 28 closely typed pages. The operative part of it began by analysing in detail the way in which the respondent had put his case before the appellant’s delegate. That case was that though he had been brought up as a Sunni Muslim, he had converted to the Ahmadi faith on 1 January 2000. He said he was a member of the Ahmadiyya Muslim Jamaat (Qadiani) and had “regularly followed all rituals performances with utmost respect”. He was disowned by his family and close relatives. He and his family had been threatened with death. He had been badly injured by Sunni extremists. He had been subjected to false charges. An essential precondition to acceptance of the case so presented turned on the extent to which the respondent had practised his new faith.
3. The Tribunal then analysed in detail the respondent’s evidence at the first and second hearings. It recorded one event before the second hearing which later assumed significance. The respondent produced an undated certificate from Mr Nuruzzaman “of the Ahmadiyya Muslim Jamaat in Khulna stating that he knew the [respondent], that the [respondent] had taken the bai’at (oath) at the Ahmadiyya Muslim Jamaat on 1 January 2000 ‘by my assistance’ and that from that time he had ‘engaged with all activities of our Jamaat’.”
4. The third Tribunal decision then recorded that after the second hearing the Tribunal requested that the respondent provide the following:

“A letter, preferably in the form of a Statutory Declaration, from the Imam or other senior person at the Ahmadiyya mosque which you attend. This letter should state that you are known to the writer of the letter as a practising member of the Ahmadiyya faith, and should also state how long you have been attending the mosque and/or other activities in connection with the Ahmadiyya religion.”

On 12 October 2006 the respondent’s solicitors replied in the following terms:

“Our client has been unable to obtain the information requested in the RRT’s letter dated 13 September 2006. We note our client’s claim that the mosque is not in the practice of issuing such letters for persons who enter Australia however, merely because the mosque will not issue a letter does not mean that our client is not of the Ahmadiyya faith. The applicant has provided evidence that he was practising his Ahmadiyya faith in Bangladesh. Furthermore, a friend has confirmed that the applicant attends a mosque.”

1. The Tribunal’s reasons for decision then described in detail what had happened at the third hearing. In that hearing the Tribunal revealed considerable doubt about many aspects of the respondent’s claims. It was sceptical about his failure to mention Mr Nuruzzaman in his original application to the delegate or in the first hearing. It inquired how his wife could have been ignorant of his faith if he had attended the Ahmadi mosque every Friday and other Ahmadi meetings. It told the respondent that he had told his story a number of times, and each time it was different. It commented on his failure to get a letter from the Ahmadi mosque he claimed to attend in Australia supporting his case even though it had verified that other applicants for refugee status were Ahmadis. In connection with Mr Nuruzzaman’s certificate, it contended that forged or fraudulently obtained documents were readily available in Bangladesh.
2. The respondent’s criticisms of the letters of 8 and 10 January 2008. In this Court, counsel for the respondent, in his customary careful way, contended that the Tribunal’s conclusion that the respondent was not a genuine Ahmadi was based on its acceptance of what the National Ameer of the Ahmadiyya Muslim Jamaat, Bangladesh, said in his letter of 8 January 2008 enclosed with the Ahmadiyya Muslim Association Australia Inc’s letter of 10 January 2008. It is certainly true that the Tribunal said in its reasons for decision more than once that it relied on “the information referred to in the Tribunal’s letter dated 14 January 2008″, and that letter referred to the National Ameer’s letter of 8 January 2008. Counsel criticised the letters of 8 and 10 January 2008, and the Tribunal’s reasoning, in several ways.
3. First, he said that the Tribunal’s letter of 15 November 2007 to the Ahmadiyya Muslim Association Australia Inc had asked two questions. One was whether the respondent was “known to the Ahmadiyya Muslim Jamaat Bangladesh.” The other was whether the respondent was known to the congregation of the Ahmadi mosque at Marsden Park, which the respondent claimed to attend every Friday. Counsel submitted to this Court that the Association’s reply of 10 January 2008 did not answer either question.
4. Secondly, counsel said that the inability of the Khulna Jamaat in Bangladesh to find the respondent’s name in its records had to be analysed in the light of such questions as whether records of attendance at prayers were kept, and whether they were kept well.
5. Thirdly, counsel contended that the 8 January 2008 letter revealed a misunderstanding about whether the certificates of Mr Nuruzzaman and Mr Hossain were in para materia with the certificates mentioned in the letter which could be issued in order to effectuate a transfer of a member of a Bangladeshi Jamaat to a Jamaat outside Bangladesh.
6. Then counsel said that while a reference to the name of the respondent in the records of the Khulna Jamaat might establish that he was an Ahmadi, an absence of reference to his name did not establish that he was not. Counsel said that the Tribunal failed to understand this.
7. Finally, counsel submitted that “the material before the Tribunal standing alone did not provide a rational foundation for acceptance” of what it said were “two bare assertions”, namely that the certificates were “fake & forged”, and that since the respondent was not listed in the records of the Khulna Jamaat, he had not attended it.
8. The criticisms considered. It is convenient to start with the last criticism. The Tribunal’s conclusions were not arrived at by reference to “the material before the Tribunal standing alone”. They were arrived at by examination of what was said in the respondent’s original application, as well as what happened at each of the three hearings. They were also arrived at in the light of the response given by the solicitors for the respondent to the Tribunal’s letter of 14 January 2008. That letter was long and detailed: it filled seven closely typed pages and contained numerous material enclosures. It set out many alleged inconsistencies and difficulties in the respondent’s position. It called for written comments on the problems identified. In particular, it drew attention to the letter of 8 January 2008, which was one of the enclosures. In the plainest terms it identified the damaging impact which that letter had on the respondent’s overall credibility as well as his particular claim to have been converted. It set 29 January 2008 as the time by which the respondent’s comments should be received, but it indicated that an extension could be requested.
9. The respondent’s solicitors were experienced in the particular field. They did not complain of any shortage of time within which to reply. On 29 January 2008 they duly sent a response. But it was brief. The response merely conveyed the respondent’s disagreement with the information forwarded. The response did not deal at all with the many points made which were distinct from the questions arising from the 8 January 2008 letter. Nor did it deal with that letter. In particular, although the arguments advanced by counsel for the respondent in this Court varied in their power, none of them were drawn to the Tribunal’s attention. Counsel accepted that “some inference” was available from this circumstance. In truth, a very strong inference is available, when the circumstances of the three hearings and the many difficulties being experienced by the Tribunal are borne in mind. The inference is that the Tribunal’s points were not answered because the respondent’s representatives had been unable to obtain from the respondent any instructions enabling them to be answered, and because they were incapable of answer.
10. Further, the course which the respondent now says the Tribunal should have taken was not a course which his representatives asked the Tribunal to take in the letter of 29 January 2008. Although the respondent had noted at the 9 November 2007 hearing that Mr Nuruzzaman’s certificate bore a telephone number which could be used to contact him, it did not seem that he urged that Mr Nuruzzaman actually be contacted. The correctness of the course which the respondent now advocates is diminished by the hindsight attached to it.
11. The respondent’s contention that the Tribunal should have made a further inquiry of the Ahmadiyya Muslim Association Australia Inc is without merit. It is plain that the Association viewed itself as having nothing to add to what it said on 10 January 2008. Its letter of that date needs to be read in the light of what it said in an earlier letter to the Tribunal dated 12 December 2004. It said:

“When any person approaches the National Ahmadiyya Association, for being attested as an Ahmadi, he is asked to provide his antecedents such as his name with parentage, his previous address, the name of ‘Jamaat’ (branch of the Association) to which he belonged, date of joining the Association – if not an Ahmadi by birth, and other information which he may like to supply to help verify his religious status. The information supplied by him is passed on to the National Amir of his country, who then obtains verification from the Amir/President of the local ‘Jamaat’ to which he claims to have belonged. A letter of verification of being an Ahmadi is issued by us, on the basis of information thus obtained. This procedure is followed in all cases unless I happen to know an applicant personally.”

It then said: “There is no other way to have the claim of a person of being an Ahmadi verified.” The letters of 8 and 10 January 2008 revealed that a process of that kind had come to a dead end. Perhaps someone could have asked the Ahmadiyya Muslim Jamaat in Bangladesh why it thought that the certificates were “fake & forged”. But the respondent did not submit that the Tribunal should ask this, and in any event the respondent was in at least as good a position as the Tribunal to put the question. On his case, he was a victim of religious persecution, and he would have been seeking the assistance of senior office holders in the religious denomination being persecuted to avoid that persecution.

1. If the respondent thought that the Association’s answer in its letter of 10 January 2008 was incomplete or rested on a misunderstanding of the Tribunal’s letter of 15 November 2007, those thoughts were not conveyed to the Tribunal with a view to further action on its part. And the respondent’s contention that the issue of whether Mr Nuruzzaman and Mr Hossain had forged their certificates could be resolved by asking them whether they had in fact done so must be rejected. Those questions would not have been likely to receive illuminating answers. The only useful way forward was for the respondent to procure better material, from Bangladesh and Australia, demonstrating that his claims about his faith and practice were well-based. His representatives informed the Tribunal in their letter of 29 January 2008 that this was beyond his capacity.
2. The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve. The respondent had procured the certificates in the first place. Those certificates purported to be from gentlemen who knew the respondent. The respondent, it could be assumed, would know whether Mr Nuruzzaman or Mr Hossain could provide any useful information in relation to the letter of 8 January 2008. The respondent was in at least as good a position as the Tribunal to contact those gentlemen. He was represented by solicitors. Despite the letter of 8 January 2008, the respondent did not ask the Tribunal to contact either gentleman. It was not unreasonable for the Tribunal to proceed on the basis that if any further evidence was to be provided in support of the certificates, it would come from the respondent.
3. The failure of the Tribunal to make the inquiries of which the respondent complains was not a jurisdictional error.

Section 425

1. In relation to pleadings filed in conventional litigation, lawyers are familiar with the difficulties that arise in practice in distinguishing between allegations of material fact (which must be pleaded), some kinds of particulars of those allegations (which must be pleaded), other kinds of particulars (which need not be pleaded, but must be supplied in correspondence if requested), and evidence of the material facts so pleaded and particularised. It can be difficult to distinguish between the issues which disagreements about the relevant allegations throw up. Now a proceeding in the Tribunal seeking review of a decision by a delegate of the Minister refusing an application for a visa is not conventional litigation and is not subject to any rules of pleading. But similar difficulties can arise in distinguishing between sub-questions or sub-controversies within an issue and controversies about separate issues. In particular cases much debate could take place about how broadly or narrowly issues should have been, or were, perceived.
2. The first “new” issue: forgery. This appeal is not a suitable occasion on which to explore these problems in general or exhaustive terms. The question whether the certificates were “fake & forged” was not a new issue which arose in a distinct way after the third hearing. In one sense it was arguably only a sub-issue of the general question: was the respondent converted to the Ahmadi faith as he claimed? It was clear from at least the third hearing that the Tribunal had the utmost scepticism about the respondent’s position on that question. But it is not necessary to examine the proposition that forgery was only a sub-issue of the issue as to whether the respondent had been converted. That is because if it is assumed in the respondent’s favour that a wholly unforeseen claim that the certificates were forged which emerged after the third hearing might raise a new issue triggering s 425 – a proposition open to debate – the claim that the certificates were forged in this case was not wholly unforeseen at that third hearing. At the third hearing the Tribunal drew attention to what it regarded as the belated emergence of Mr Nuruzzaman’s asseverations – first in an undated certificate, then in the certificate dated 7 August 2006. The Tribunal also referred, while Mr Nuruzzaman’s certificate and the fabrication of the respondent’s claim to be Ahmadi were under debate, to the supposed ready availability of forged or fraudulently obtained documents in Bangladesh. The respondent in this Court appealed to a distinction between “a general proposition that in a particular country forged documents might be obtained and a specific proposition that these documents were fake and forged.” But the context in which the Tribunal asserted the general proposition indicated that it had in mind the application of it to the particular certificates. It was to meet the supposed ready availability of forged or fraudulently obtained documents in Bangladesh that the Tribunal requested the respondent’s consent to contacting the Ahmadiyya Muslim Association Australia Inc. That was because, as the Tribunal told the respondent, that Association “had told the Tribunal that they would verify a person’s claims with the Ahmadiyya Jamaat to which he claimed to have belonged in Bangladesh so they were able to confirm whether someone was a genuine Ahmadi or not”. That was a reference to the letter of 12 December 2004 quoted above[37].
3. Far from the forgery of the certificates being a fresh issue which arose after the third hearing, it was a live issue at that hearing. Indeed the material which eventually stated in terms that the certificates were forged came to light because of the Tribunal’s concern to bypass the possibility of further forgeries being perpetrated to support the genuineness of the certificates which the Tribunal suspected had been forged.
4. The second “new” issue: the presence of the respondent’s name in the Khulna Jamaat records. The second “new” issue which the respondent contended arose from the 8 January 2008 letter – whether or not the respondent’s name was in the Khulna Jamaat records – was not a new issue. The Tribunal’s reference during the third hearing to the letter of 12 December 2004 from the Ahmadiyya Muslim Association Australia Inc to the Tribunal makes it clear that the question of the status of the respondent with his Jamaat in Bangladesh, to which the Jamaat’s records were relevant, was a live one at the third hearing. It was not a new issue raised after it.
5. The Tribunal was right to give the respondent particulars of the 8 January 2008 letter (pursuant to s 424A(1)(a) of the Act), right to ensure by its very detailed and frank letter of 14 January 2008 that the respondent understood why it was relevant (pursuant to s 424A(1)(b)), and right to invite the respondent to comment on the 8 January 2008 letter (pursuant to s 424A(1)(c)). But the Tribunal was never asked by the respondent to give a fourth oral hearing. Of course, if s 425 imposed a duty, the failure to demand compliance with it would not negate its existence. But that failure does suggest that the application of s 425 to the circumstances of this case was not obvious. And, in truth, no obligation to give a fourth oral hearing, as distinct from an invitation to supply a written response, arose under s 425.

Conclusion

1. The appeal should be allowed.

[2] Migration Act, s 411(1)(c).

[3] Migration Act, s 424.

[4] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 [43] per Gummow and Hayne JJ, Gleeson CJ agreeing at 992 [1]; 207 ALR 12 at 21-22, 13; [2004] HCA 32.

[5] SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372; (2008) 104 ALD 22.

[6] The term “Jamaat” is an Arabic word which means “Assembly”.

[7] [2008] FMCA 788.

[8] [2008] FCA 1372; (2008) 104 ALD 22.

[9] [2008] FCA 1372; (2008) 104 ALD 22 at 25 [18], referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12.

[10] [2008] FCA 1372; (2008) 104 ALD 22 at 25 [19].

[11] [2008] FCA 1372; (2008) 104 ALD 22 at 27 [25].

[12] [2008] FCA 1372; (2008) 104 ALD 22 at 28 [27].

[13] Migration Act, s 476(1).

[14] Migration Act, s 5 (“migration decision”) read with s 474(2).

[15] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 508 [82]; [2003] HCA 2; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57.

[16] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 100-101 [40] per Gaudron and Gummow JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ; [2003] HCA 56; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ; [2003] HCA 30; (2003) 77 ALJR 1165 at 1177-1178 [67]- [69] per McHugh and Gummow JJ, 1194 [174] per Callinan J; [2003] HCA 30; 198 ALR 59 at 75-76, 98-99; [2003] HCA 30.

[17] After Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[18] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 164 [40]; [2006] HCA 63; Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [27], n 19.

[19] Migration Act, s 415(1).

[20] Shorter Oxford English Dictionary, 3rd ed (1973), vol 1 at 1079. See also “inquisitorial system” in Black’s Law Dictionary, 8th ed (2004) at 809, defined as the civil law system of proof-taking “whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry”.

[21] (2005) 225 CLR 88; [2005] HCA 72.

[22] [2005] HCA 72; (2005) 225 CLR 88 at 99 [26].

[23] [2005] HCA 72; (2005) 225 CLR 88 at 100 [29].

[24] [1985] FCA 47; (1985) 6 FCR 155 at 167-170.

[25] [2007] FCA 1318; (2007) 164 FCR 151 at 174-176 [65]- [67].

[26] (1989) 2 WAR 422 at 445. Cf Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2008] 2 Qd R 495 at 511 [53]-[54]; Love v State of Victoria [2009] VSC 215 at [253]- [254].

[27] [1989] HCA 62; (1989) 169 CLR 379 at 391; [1989] HCA 62.

[28] (1995) 183 CLR 273; [1995] HCA 20.

[29] [1995] HCA 20; (1995) 183 CLR 273 at 290.

[30] [1995] HCA 20; (1995) 183 CLR 273 at 321.

[31] (1999) 197 CLR 510; [1999] HCA 14.

[32] (1999) 197 CLR 510 at 578 [194].

[33] Their Honours were in dissent, but their observations were not relevant to the point of their dissent.

[34] [1995] HCA 20; (1995) 183 CLR 273 at 290.

[35] See authorities collected in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at 453 [189], n 214; [2001] HCA 51.

[36] Some documents give the relevant body that title. Others call it the Ahmadiyya Muslim Association of Australia Inc. For consistency, the title in the text will be employed below.

[37] See above at [50].

Last Updated: 30 September 2009

Immigration – Refugees – Review by Refugee Review Tribunal (“RRT”) – Where RRT not satisfied that visa applicants engaged in Falun Gong-related activities in Australia otherwise than for the purpose of strengthening claims to be refugees – Where RRT drew adverse inferences about visa applicants’ credibility from visa applicants’ participation in Falun Gong-related activities in Australia – Whether Migration Act 1958 (Cth), s 91R(3) permitted RRT to use evidence of conduct in Australia to make findings adverse to visa applicants’ claims to be refugees.

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL AND BELL JJ

 Matter No S577/2008

 MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZJGV & ANOR RESPONDENTS

 Matter No S578/2008

 MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZJXO & ANOR RESPONDENTS

Minister for Immigration and Citizenship v SZJGV
Minister for Immigration and Citizenship v SZJXO
[2009] HCA 40
30 September 2009
S577/2008 & S578/2008

ORDER 

Matter No S577/2008 

1. Appeal allowed.
2. Set aside orders 1 to 4 of the orders made by the Full Court of the Federal Court of Australia on 19 June 2008, and in lieu thereof order:

(a) Set aside order 3 of the orders made by the Federal Magistrates Court of Australia on 15 May 2007 and in lieu thereof order that the first respondent to the application in that Court pay the applicant’s costs of the application. 

(b) Appeal otherwise dismissed. 

1. Appellant to pay the first respondent’s costs of the appeal to this Court.

Matter No S578/2008 

1. Appeal allowed.
2. Set aside orders 2 to 5 of the orders made by the Full Court of the Federal Court of Australia on 19 June 2008, and in lieu thereof order:

(a) Set aside order 2 of the orders made by the Federal Magistrates Court of Australia on 2 July 2007 and in lieu thereof order that the first respondent to the application in that Court pay the applicant’s costs of the application. 

(b) Appeal otherwise dismissed. 

1. Appellant to pay the first respondent’s costs of the appeal to this Court.

On appeal from the Federal Court of Australia 

Representation 

S J Gageler SC, Solicitor-General of the Commonwealth with D H Godwin for the appellant in both matters (instructed by DLA Phillips Fox) 

G T Johnson with D Jordan for the first respondent in both matters (instructed by Fragomen Glogal) 

Submitting appearance for the second respondent in both matters 

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. 

Migration Act 1958 (Cth), s 91R(3). 

FRENCH CJ AND BELL J. 

Introduction 

1. The first respondents to these two appeals each applied unsuccessfully to the Minister for Immigration and Citizenship (“the Minister”) for protection visas under the Migration Act 1958 (Cth) (“the Migration Act“). They were also unsuccessful before the Refugee Review Tribunal (“the Tribunal”) which affirmed the decisions. The Federal Magistrates Court dismissed their applications for judicial review of the decisions of the Tribunal. They succeeded, however, in persuading the Full Court of the Federal Court that the Tribunal had erred by taking into account, adversely to them, and contrary to s 91R(3) of the Migration Act, conduct in which they had engaged in Australia.
2. The first respondents’ success before the Full Court turned upon the construction of s 91R(3) which provides:

“For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

1. The question posed by these appeals is whether s 91R(3) prohibits a decision-maker, in making the determination contemplated in par (a), from drawing inferences adverse to a visa applicant based on the applicant’s conduct within Australia unless the condition referred to in par (b) is satisfied.
2. The factual and procedural history leading to these appeals and the background to the enactment of s 91R(3) have been set out in the judgment of Crennan and Kiefel JJ. The appeals should be allowed and orders made in the terms which they propose. Our reasons for coming to that conclusion depend primarily upon the construction of par (a).

The construction of s 91R(3) 

1. The construction of s 91R(3) begins with the ordinary and grammatical sense of the words having regard to their context and legislative purpose. That purpose in this case, as shown in the reasons of Crennan and Kiefel JJ, was to overcome the effects of decisions of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Mohammed[1] and Minister for Immigration and Multicultural Affairs v Farahanipour[2]. Those decisions concerned cases in which the applicant for a protection visa had deliberately engaged in conduct within Australia calculated to strengthen his claim for protection under the Refugees Convention[3] by enhancing the risk of persecution if he were to be returned to his country of origin[4]. In each case the Full Court held that although such bad faith conduct might well lead to adverse findings about an applicant’s credibility, it did not automatically bar the claim for a visa which would have to be assessed by reference to Australia’s obligations under the Refugees Convention.
2. Section 91R is concerned with the application of the criteria in Art 1A(2) of the Refugees Convention to determining whether a person is a refugee within the meaning of that Article and to whom Australia owes “protection obligations” within the meaning of s 36 of the Migration Act. The first two sub-sections of s 91R are closely related. Section 91R(1) limits the range of circumstances in which apprehended harm will be characterised as persecution for the purposes of Art 1A(2). Section 91R(1)(b) requires that such persecution involve serious harm to the person and s 91R(2) sets out a non-exhaustive list of instances of serious harm.
3. Section 91R(3) stands apart from the two preceding sub-sections. Unlike them, it does not define limits to be applied, for statutory purposes, to the criteria in Art 1A(2). Rather it operates as an awkwardly framed command to the world by the use of “disregard” in an imperative sense. Section 91S, which concerns “membership of a particular social group” as an occasion of apprehended persecution in Art 1A(2), is drafted along similar lines. The command in s 91R(3) is clearly directed, although not expressly, to the Minister (and therefore to the Minister’s delegates) determining applications for protection visas and to the Tribunal in reviewing such decisions. It is in its character as a command to administrative decision-makers that it must be construed. It is not directed to the courts, for the courts are not involved in determining such cases on their merits. But a court, upon judicial review, may be required to determine whether the command, where applicable, has been applied in accordance with its terms properly construed.
4. Section 91R takes its place in a legislative scheme providing means by which Australia can comply with its obligations as a Contracting State under the Refugees Convention. A necessary condition for the grant of a protection visa under the Migration Act is that the applicant is, relevantly, “a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”[5]. The “protection obligations” are not defined but refer to those of Australia’s substantive obligations under the Refugees Convention which can be characterised as protective in nature and imposed with respect to refugees as individuals. They include obligations concerning “the status and civil rights to be afforded to refugees who are within Contracting States” conferred by Chs II-IV and those obligations imposed by Ch V (Arts 25-34)[6]. The substantive obligation of most immediate relevance to a refugee applying for a protection visa in Australia is that imposed by Art 33(1) of the Refugees Convention which provides:

“No Contracting State shall expel or return (‘refouler‘) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

1. The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2)[7]. Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text[8]. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty[9]. In the 12th edition of Maxwell’s On the Interpretation of Statutes the approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained[10]:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.” (footnote omitted)

This approach is reflected in decisions of the Courts of the United Kingdom. In Inco Europe Ltd v First Choice Distribution[11], Lord Nicholls of Birkenhead restated the need for the Court to correct obvious drafting errors. He referred to the third edition of Cross’ Statutory Interpretation[12]:

“In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.”

The limits of the judicial role, as pointed out by Lord Nicholls, require that the courts “abstain from any course which might have the appearance of judicial legislation.”[13] Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of “crucial importance”. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation[14].

1.  The construction of s 91R(3) in accordance with its legislative purpose begins with a consideration of the nature of the ministerial determination with which par (a) is concerned. In this respect there are two ways of reading par (a). The first way is to read “whether” as introducing alternatives in the sense of “whether or not”. That reading would apply the command of the sub-section to all processes of reasoning which could lead to determinations favourable or unfavourable concerning the existence of an asserted well-founded fear of persecution within the meaning of Art 1A(2). It accords with the natural and ordinary meaning of “whether” as “[i]ntroducing a disjunctive dependent question or its equivalent expressing doubt, choice, etc between alternatives”[15]. It would require the decision-maker to disregard, for all purposes relevant to a determination of the existence of a well-founded fear of persecution, any conduct engaged in within Australia, however probative of the falsity of an applicant’s claim, unless the condition in par (b) were satisfied. The creation of false documents to support a claim would be an example of such conduct. Such an outcome is improbable and inconvenient to a degree that would be irrational.
2. The Solicitor-General of the Commonwealth submitted that the words “in determining” in par (a) refer to a process undertaken after findings of primary fact have been made and said:

“So after all the facts are found once and for all, what the direction in the section requires is that conduct in fact engaged in by the person in Australia be disregarded, that means simply left out of account, in determining whether, which we would say means as a basis for determining that, such fear of persecution as a person may in fact have is to be characterised in terms of Article 1A(2) as well-founded.”

1. The proposition that s 91R(3) is concerned with the process of determination after the primary facts have been found does not meet the textual difficulty generated by the ordinary meaning of the word “whether”. However, the Solicitor-General’s submission does lead to consideration of an alternative construction, which is to read “whether” as “that”: not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term “whether” in par (a). But such misuse is not entirely without precedent[16]. In this case, the substituted text corrects what would be an obvious drafting error were “whether” to be construed according to its ordinary and natural meaning. On the alternative construction, par (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in par (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction. It meets the purpose of the sub-section and avoids absurd results. Upon that construction the appeals must be allowed.
2. As to what is necessary to satisfy the condition in par (b), we agree with Crennan and Kiefel JJ that an applicant seeking to rely upon conduct engaged in in Australia must show that the conduct was not engaged in solely to strengthen his or her claim. By way of example, conduct in Australia may reflect a continued commitment by the applicant to religious practices followed or political opinions held and expressed in his or her country of origin. It could not be said to have been engaged in solely to strengthen the claim to be a refugee. It might then be relied upon by a decision-maker to infer prior commitment to a particular religious practice or political opinion in the country of origin.

Conclusion 

1. For the preceding reasons the construction adopted by the Full Court of the Federal Court in these appeals was erroneous. The appeals should be allowed and orders made as proposed in the joint judgment of Crennan and Kiefel JJ.
2. HAYNE J. The facts and circumstances giving rise to these appeals are set out in the reasons of Crennan and Kiefel JJ. I need not repeat them.
3. Section 91R(3) of the Migration Act 1958 (Cth) is cast as a direction to disregard certain conduct “[f]or the purposes of the application of this Act and the regulations to a particular person … in determining whether the person has a well-founded fear of being persecuted” for a Convention reason[17]. The sub-section does not identify who is to disregard that conduct. Instead, it specifies the occasion for disregarding the conduct, and identifies that occasion as being “determining whether the person has a well-founded fear of being persecuted”. The sub-section describes what is to be disregarded as “any conduct engaged in by the person in Australia”. Paragraph (b) of s 91R(3) qualifies the generality of that direction to disregard conduct in Australia. More particularly, the direction to disregard conduct in Australia does not apply if the person satisfies the Minister that the person engaged in the conduct “otherwise than for the purpose of strengthening the person’s claim to be a refugee”.
4. The central question in these appeals is whether, if the qualifying provision of par (b) does not apply, the direction to disregard any conduct engaged in by the person in Australia is to be given its literal application. It was not disputed that if par (b) does not apply, conduct of the visa applicant in Australia cannot be used to support the conclusion that the criteria for a protection visa are met. The conduct cannot be used to strengthen the person’s claim to be a refugee. But, if a visa applicant’s conduct in Australia shows, or tends to show, that the person does not meet the criteria for a protection visa, is that conduct to be disregarded?

18 The appellant submitted (in effect) that to construe s 91R(3) as requiring disregard of conduct in Australia that shows or tends to show that protection obligations are not owed to the person in question would be at odds with the evident purpose of the Migration Legislation Amendment Act (No 6) 2001 (Cth) which inserted subdiv AL of Div 3 of Pt 2 (ss 91R to 91X) in the Migration Act. That subdivision made particular provisions about protection visas. It may be accepted that an important purpose of these provisions was to confine the class of persons eligible for protection visas. And subject to whatever qualification may follow from the confinement worked by subdiv AL, it may also be accepted that stating the criterion for grant of a protection visa in s 36(2)[18] by reference to whether Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol reveals that the provisions of the Migration Act which deal with protection visas are to be construed in a way that will enable performance of those international obligations.

1. The task of construing s 91R(3) must begin with its text. In describing the occasion for the disregard required by the sub-section as the occasion of “determining whether” the person has a well-founded fear of being persecuted for a Convention reason, the drafter of s 91R(3) may have had, at the forefront of consideration, the use of conduct in Australia in aid of the conclusion that the person had a well-founded fear. Certainly the qualification provided by par (b) of s 91R(3) points in that direction. But the drafter did not frame the direction to disregard conduct in Australia as a prohibition against using that conduct in aid of one outcome of the determination rather than another. Instead, the drafter stated the occasion for disregarding conduct in Australia as the occasion of determining an issue (whether the applicant has a well-founded fear). By fixing upon the determination of the issue as the occasion for the disregard (rather than upon use of the conduct in aid of a particular outcome of the determination) s 91R(3), in its terms, requires disregard of conduct in Australia that was not engaged in for purposes other than strengthening the claim, regardless of whether the decision-maker would use the conduct for or against the visa applicant.
2. Are the words of s 91R(3) susceptible of another construction? In particular, read in their context and with proper attention to the purposes of the statute as a whole, can the words of the provisions yield the meaning for which the appellant contended in this case? It is well established that “the manifest intention of a statute must not be defeated by too literal an adhesion to its precise language”[19].
3. If, as the Minister submitted, a purpose of subdiv AL was to confine the class of persons eligible for protection visas, reading s 91R(3) literally would not give full effect to that purpose. It would not do that because, although conduct in Australia engaged in only for the purpose of strengthening a claim to a protection visa is to be disregarded if it would in fact strengthen the claim, so too is that conduct to be disregarded even if it would show, or tend to show, that the applicant was not entitled to protection. But the language of s 91R(3) is intractable[20]. It is not possible, in my opinion, to read the language as permitting regard to be had to conduct in Australia, engaged in for the sole purpose of strengthening a claim to a protection visa, if, or to the extent that, it is conduct that shows or tends to show the claim should not be accepted.
4. The Minister did not submit, either in this Court or in the Full Court of the Federal Court[21], that s 91R(3) should be read as prohibiting regard to physical acts undertaken in Australia but permitting consideration of the purpose motivating the conduct. It is therefore not necessary to consider whether the provision could be construed in that way.
5. It was not submitted on behalf of the Minister, or suggested in any way during argument, that the drafter of s 91R(3) had made a mistake or that to read s 91R(3) literally would produce an operation of the Migration Act that warranted the description “capricious” or “irrational”[22]. It is neither capricious nor irrational to disregard certain matters no matter whether they would work for or against the visa applicant. It is neither absurd nor irrational to direct the mind of the decision-maker principally to what the visa applicant did outside Australia by excluding from consideration certain kinds of conduct in which the applicant engaged while in Australia.
6. Absent demonstration that reading the sub-section as it is written leads to capricious or irrational results, there can be no basis for a submission that the words of the sub-section should be recast. The Minister did not submit that s 91R(3) should be read as if the word “that” were substituted for “whether”. Nothing that is said in The Oxford English Dictionary treatment of “whether”, or in any edition of Fowler’s Modern English Usage, supports the view that the word “whether” was misused by the drafter when “that” was intended. The caution which Fowler urged in the entry “doubt(ful)” in the first edition[23] was against usage “contrary to idiom to begin the clause that depends on [doubt or doubtful] with that instead of the usual whether, except when the sentence is negative”. And it is this caution which Sir Ernest Gowers repeated in the second edition[24]. It is altogether too large a step to suggest that this idiomatic distinction in use between “whether” and “that” after “doubt” could support the view that the drafter of s 91R(3), through ignorance or mistake, used “whether” in the command provided by s 91R(3) when “that” was intended. Moreover, even recasting the sub-section in the manner suggested does not lead to the solution proffered. The question which the decision-maker must determine (however it is described) can be determined for or against the visa applicant. Only by assuming that the legislature intended the disregard to work always and only against the visa applicant does the asserted meaning follow.
7. Each appeal should be dismissed with costs.
8. CRENNAN AND KIEFEL JJ. These appeals were heard together. They concern the interpretation of s 91R(3) of the Migration Act 1958 (Cth) (“the Act“) which provides:

“For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

1. The evident intention of s 91R(3) is that applicants for protection visas should not be able to make their case for refugee status stronger by evidence of conduct which they have engaged in for that purpose, since their arrival in Australia. The Refugee Review Tribunal (“the Tribunal”) found that in each of these cases that was the reason why the first respondent had undertaken Falun Gong-related activities in Australia. The Tribunal used the evidence of the first respondents’ engagement in these activities, and its findings about their motivation for doing so, to cast doubt upon their claims. A Full Court of the Federal Court held that the terms of s 91R(3) did not permit the Tribunal to have regard to the conduct for that purpose. For the reasons which follow, on its proper construction s 91R(3) does not require a person’s engagement in such conduct, and the reason for it, to be disregarded by a decision-maker for all purposes in connection with the determination of an application for a protection visa.

SZJGV 

1. The first respondent to the first appeal, SZJGV, is a citizen of China who arrived in Australia on 25 January 2006. He applied for a protection visa on 2 February 2006. He claimed to have been a practitioner of Falun Gong in China since 1997 and for that reason to fear persecution if he were to return to China. He said that he had participated in protests against the treatment of Falun Gong practitioners and their families and that he had been interrogated and harassed by the Chinese authorities. His application was refused by a delegate of the Minister and that decision was affirmed by the Tribunal.
2. The Tribunal found that the first respondent had not been a Falun Gong practitioner in China as claimed. It gave as its reasons for that conclusion the first respondent’s lack of detailed knowledge about Falun Gong or Falun Gong exercises, such as would be expected of a person who had been a practitioner since 1997. The Tribunal was unpersuaded by the first respondent’s evidence about his practice of Falun Gong in Australia since April or May 2006, which was after the delegate’s refusal but before the Tribunal hearing. That evidence pointed to the fact that he had only recently been taught how to perform some Falun Gong exercises. The Tribunal found that the first respondent’s interest in Falun Gong was “a recent invention designed to assist him in his endeavour to remain in this country by strengthening his claims …”. The Tribunal considered that s 91R(3) of the Act applied and said that it would disregard the first respondent’s Falun Gong-related activities in Australia.
3. It followed, in the Tribunal’s view, from its rejection of the first respondent’s claim to have been a Falun Gong practitioner in China, that he did not participate in protests and was not harassed by the authorities in that country. It said that, in reaching this conclusion, it took into account some additional reasons.
4. The first reason the Tribunal identified was that the claims were inconsistent with independent information concerning the likely reaction of the Chinese authorities to any protests after July 1999. That information suggested that had the first respondent participated as claimed, he would have been arrested and detained. The second reason involved the shifting nature of aspects of the first respondent’s evidence and an important contradiction in it, which led the Tribunal to the view that he had exaggerated his evidence. The third reason is of particular importance. The Tribunal said that his evidence overall showed a tendency to exaggerate and to tailor it. The Tribunal said that:

“In reaching this view the Tribunal has had regard to his lack of knowledge about Falun Gong, his recent attempts to construct a profile of a Falun Gong practitioner for himself and the contradictions, inconsistencies and the gradual shifts in his evidence regarding his protest activity in China.”

In view of his lack of credibility the Tribunal said that it did not accept that the first respondent suffered any harm amounting to persecution in China by reason of his Falun Gong activities. It said that it was not satisfied that he had a well-founded fear of persecution for a Convention reason and that he was not therefore a refugee. 

SZJXO 

1. The first respondent to the second appeal is also a Chinese national who claimed to have practised Falun Gong since 1997. He arrived in Australia on 22 April 2006. He claimed to have been arrested and detained by police on four occasions in China for staging collective practice exercises, to have been verbally and physically abused and that the police had visited his house and harassed his family. His application for a protection visa was refused by the Minister’s delegate and that decision was affirmed by the Tribunal.
2. There was evidence before the Tribunal that the first respondent had attended Falun Gong practice sites in Australia since May 2006. He submitted to the Tribunal photographs of himself participating in demonstrations in Australia, which involved protests against China and against its treatment of Falun Gong prisoners. He claimed that if he returned to China he would be imprisoned for his involvement with Falun Gong including his participation in protests in Australia.
3. The Tribunal was not satisfied that the first respondent had been a Falun Gong practitioner in China. It considered that his claims lacked credit, in particular because his evidence did not disclose that the Falun Gong faith had importance to his life, it was devoid of significant supporting detail and it did not appear to arise from first-hand experience. The Tribunal did not consider that the first respondent’s involvement in Falun Gong activities since his arrival in Australia meant that he had become a practitioner. It was not satisfied that the reason for his involvement was other than to strengthen his claim to be a refugee and, in accordance with s 91R(3), it proposed to disregard it. In its conclusions concerning the prospect that the first respondent might suffer harm in the future in China, the Tribunal nonetheless referred to that conduct, saying that, given its findings about his motives for his contacts with Falun Gong in Australia, there was no reason to believe that he would practise Falun Gong if he returned to China or have any significant involvement with it there.

The appeals to the Federal Court 

1. Both respondents unsuccessfully sought review in the Federal Magistrates Court, but did not raise any issue concerning the application of s 91R(3). On the appeals to the Federal Court, which were heard together with another matter, the first respondents submitted that despite acknowledging the applicability of s 91R(3), the Tribunal had had regard to the conduct of the first respondents in Australia in determining their claims. In each case the Tribunal had relied upon that conduct in concluding that the first respondents were not refugees. The first respondents argued that if s 91R(3) required a decision-maker to disregard an applicant’s conduct in Australia, then it must be disregarded for all purposes.
2. A Full Court of the Federal Court (Spender, Edmonds and Tracey JJ) agreed with this argument[25]. Their Honours accepted that s 91R(3) could only be applied once primary findings of fact had been made, as the Minister had submitted. It would be necessary for the Tribunal to determine whether the conduct had occurred and, if it had, whether s 91R(3) applied. Their Honours continued[26]:

“Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision-maker from having regard to ‘any conduct’ engaged in by the applicant in Australia unless the decision-maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee.”

It followed, in the view of the Court, that since s 91R(3) applied in these cases, the conduct could not lawfully be brought into account[27]. The Court said[28]:

 ”Decision-makers are, subject to the proviso in para (b), required to disregard ‘any’ conduct in Australia by an applicant. The conduct is to be disregarded in determining ‘whether’ an applicant has a well-founded fear of persecution for a Convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the Tribunal brings the conduct into account it will contravene s 91R(3).”

1. The Full Court held that in each case the Tribunal had fallen into jurisdictional error by having regard to the conduct of the first respondents. This was so even though in SZJGV the first respondent’s conduct was used for the limited purpose of assessing the credibility of his claim to be a Falun Gong practitioner[29]. In SZJXO the Court held that the conduct had wrongly been used to determine whether there was any reason to believe that the first respondent would be persecuted should he return to China[30].

The history of s 91R(3) 

1. A statutory criterion for a protection visa is that an applicant be a non-citizen “to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”[31]. A person who falls within the definition of a “refugee” in Art 1A(2) of the Convention relating to the Status of Refugees[32] is such a person. A refugee is there defined as a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” is unable or unwilling to avail himself of the protection of his country of nationality.
2. Section 91R was introduced into the Act in 2001[33]. As its heading suggests, it is concerned with the element of persecution in the Convention definition. Sub-section (1) concerns the reasons for persecution mentioned in Art 1A(2) of the Convention. It requires, inter alia, that persecution involve serious harm to the person. Sub-section (2) gives examples of what may amount to “serious harm” for the purpose of the preceding sub-section. Sub-section (3) is concerned with the person’s conduct outside their country of nationality as it relates to their claim to have a well-founded fear of persecution.
3. A person who becomes a refugee after leaving their country of nationality or habitual residence is called a refugee “sur place”[34]. A person may become a refugee sur place for different reasons. There may be a change in the conditions of that country after their departure from it, which results in that person developing a well-founded fear of persecution if they were to return to it. A person may also become such a refugee as a consequence of their own activities after their departure because those activities may come to the attention of the authorities in that country[35].
4. Prior to the introduction of s 91R(3), differing views had been expressed about the extent to which the conduct, in Australia, of an applicant for a protection visa could bear upon their claim to refugee status. In some jurisdictions the potential for abuse led to the implication of a requirement of good faith on the part of an applicant seeking protection in accordance with the Convention. On this view, a person who purposefully creates circumstances designed to engage Convention protection is not considered to be a genuine refugee to whom the Convention applies[36]. In other jurisdictions bad faith, whilst considered relevant to credibility, is not considered to automatically disentitle a person to protection on the basis of a well-founded fear of persecution[37]. In Australia the different approaches were taken up, to an extent, in decisions of the Federal Court.
5. In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs[38] Gummow J (with whom Keely and Jenkinson JJ agreed on this point) did not go so far as to suggest that a person who deliberately engages in conduct designed to create the circumstances which might engage Convention protection should be denied the potential status of refugee. His Honour considered that evidence of the actions taken should be excluded from a consideration of a claim to that status. His Honour said that[39]:

“… it should be accepted that actions taken outside the country of nationality or, in the case of a person not having a nationality, outside the country of former habitual residence, which were undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution, should not be considered as supporting an application for refugee status. The fear of persecution, to which the Convention refers, in such cases will not be ‘well-founded’.”

1. Some years later a different view was expressed by Lee J in Mohammed v Minister for Immigration and Multicultural Affairs[40], which was upheld by a Full Court on appeal[41] and followed by the majority in Minister for Immigration and Multicultural Affairs v Farahanipour[42]. Lee J said[43]:

“Consistent with the terms of the Convention, and the obligations undertaken by a contracting state thereunder, recognition of refugee status cannot be denied to a person whose voluntary acts have created a real risk that the person will suffer persecution occasioning serious harm if that person is returned to the country of nationality. In some cases, albeit extraordinary, fraudulent activity by an applicant for refugee status may, in itself, attract malevolent attention from authorities in the country of nationality, giving rise to a well-founded fear that serious harm will occur if that person is returned.”

1. In the Explanatory Memorandum to the 2001 Act it was said that the provision that became s 91R(3) was inserted to deal with sur place claims[44]. It was said that difficulties had arisen in Australian courts where it had been found that a person had acted while in Australia with the specific intention of establishing or strengthening their claim to refugee status[45]. The provision was said to be designed to maintain[46]:

“… the integrity of Australia’s protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status.”

1. The Second Reading Speech confirmed that actions taken after arrival in Australia “will be disregarded unless the minister is satisfied that the actions were not done just to strengthen claims for protection.”[47] In exceptional cases, where a person had acted “purely to strengthen their claims”, an application might nonetheless be granted in the exercise of ministerial discretion[48].

The proper construction of s 91R(3)[49] 

1. The question about s 91R(3) which arises on these appeals, and which must be resolved by construing that provision, concerns the extent of its operation. More particularly, the question is whether sub-s (3) operates to prevent a decision-maker drawing upon evidence about conduct engaged in by an applicant for a protection visa, since their arrival in Australia, and views formed by the decision-maker about the reason why that person engaged in the conduct, to make findings adverse to that person’s claim to refugee status.
2. The statement that the context, general purpose and policy of a statutory provision may be the surest guides to construction[50] is apposite to s 91R(3). Those considerations provide a better guide to the intended operation of sub-s (3) than does resort merely to the language and structure of the sub-section. The modern approach to statutory construction uses “‘context’ in its widest sense”[51]. A consideration of the statutory context within which s 91R(3) operates directs attention to the questions which a decision-maker is required to address in determining an application for a protection visa and what may be involved in that process. Sub-section (3) will deny the use of some evidence to that determination. The extent of the operation of sub-s (3), with that result, is to be determined by reference to its object and what is necessary to achieve it.
3. Before proceeding further, mention should be made of a possible distinction which might be drawn between the person’s motive for the conduct and the conduct itself. Section 91R(3) is expressed to effect an exclusion of conduct, and therefore evidence about conduct, from the determination of whether the person is a refugee. Views formed by the decision-maker about the person’s motives for that conduct are not referred to.
4. The Full Court did not draw a distinction between conduct and motive in determining the operation of s 91R(3). The Court was aware of a possible argument that the decision-maker was only bound to disregard conduct, but did not decide the point[52]. In view of the conclusions reached on the appeals it is not necessary to decide whether such a distinction should be drawn. Sub-section (3) should not be read as requiring that evidence about the person’s conduct be disregarded for all purposes connected with an assessment of their claim. It follows that even if the direction to disregard “any conduct” in sub-s (3) is apt to refer to the motive for the conduct, views formed and findings made concerning that motive are not excluded from the determination.
5. There can be little doubt that s 91R(3) was inserted into the Act to quell the controversy which had arisen by reason of decisions of the Federal Court and that the view expressed in Somaghi was to prevail. The section effects an evidentiary exclusion, which Gummow J had suggested in Somaghi as an appropriate response to deliberate conduct. However his Honour spoke of excluding from the consideration of a decision-maker actions undertaken for the sole purpose of invoking, which is to say creating, a claim to refugee status. When his Honour said that such actions “should not be considered as supporting an application for refugee status”[53] his Honour was speaking of the actions providing the sole evidentiary basis for a claim. The terms of s 91R(3) are expressed differently. They refer to an exclusion of evidence of conduct, the purpose of which is to strengthen a person’s claim to a well-founded fear of persecution.
6. The Full Court was aware of the historical background to s 91R(3)[54], but concentrated upon its language in determining the extent of its operation. The Court considered it to be of significance to the question of the extent of the sub-section’s operation, that its terms extended its application beyond sur place claims, strictly so called. It may be accepted that the section extends to any claim for refugee status, where conduct has been engaged in by a person in Australia and is relied upon in support of that claim. It is not limited to cases in which the conduct in question is undertaken to create the circumstances in which Convention protection might be engaged. However it does not follow that the section operates in the manner suggested by the Full Court, so as to prevent the application of evidence of conduct, or views about that conduct, adverse to the claim.
7. The Full Court may also have been encouraged to focus upon the language of sub-s (3) because, as it noted, there had been a series of cases in that Court and in the Federal Magistrates Court, concerning s 91R(3), in which it had been common ground that it suffered from a lack of clarity[55]. At least so far as concerns the question presently under consideration that cannot be doubted. Sub-section (3) is expressed in a way which focuses upon the evidentiary burden that a person has, to have conduct undertaken in Australia taken into account in support of their claim, not what use the conduct, or the motive for it, may be put to if they are unsuccessful. But the recognition that the answer to the question is not readily provided by the language and structure of sub-s (3) should suggest that the answer may lie in considerations of the sub-section’s object.
8. The proper starting point for a consideration of the operation of the section is the task of the decision-maker under the Act, to which sub-s (3) is addressed, and what it entails. The opening words of s 91R(3) confirm that regard is to be had to the application of the Act as a whole, to the person, in applying sub-s (3). Section 65(1) requires the decision-maker to be satisfied that the statutory criteria for the visa in question are met. The relevant criterion for a protection visa is provided by the Convention definition of a refugee. The determination to which par (a) of s 91R(3) refers, as the subject of the evidentiary exclusion, is that part of the definition of a refugee which refers to a person having a well-founded fear of persecution. That part of the Convention definition of refugee has been held to encompass both subjective and objective elements[56]. The subjective question is whether the applicant for a protection visa has a fear of persecution. If that question is answered in the affirmative, the following question, whether that fear is well-founded, is an objective one[57]. Evidence about the person’s conduct, and their motive for it, may have particular relevance to the subjective question.
9. The decision required by s 65(1) of the Act will require an assessment of the claim by the decision-maker. It will involve the weighing of evidence and information for and against the claim. Much of what is asserted as fact may be unsupported by evidence. Independent information available to the decision-maker may only go so far towards a resolution of the issues which arise. It is well recognised that, in these cases, evidence concerning an applicant’s course of conduct, including inconsistencies in it, and the credibility of the applicant may assume importance. It is unlikely to have been intended by the insertion of s 91R(3) that a decision-maker be prevented from taking such factors into account in the process of determination. As will be shown, the only conduct to which sub-s (3) is directed is that which may be weighed in favour of an acceptance of the person’s claims.
10. The reasons of the Full Court seek to give effect to the terms of the direction in s 91R(3). In considering the conduct which must be disregarded in the determination of “whether” the person has a well-founded fear of persecution, it focused upon the expression “any conduct”. The meaning given to that expression by the Court was significant to the conclusion it reached about the extent of the operation of s 91R(3). It may be inferred from the passage set out above[58] that it approached the meaning of that expression in two ways.
11. First, the Full Court observed that the words “any conduct” were largely unqualified, since they were subject only to the proviso in par (b). How the proviso impacted upon the application of sub-s (3) to conduct in Australia was not discussed. Save for conduct coming within the proviso, on the Full Court’s approach those words could refer to all conduct of any kind. The Court secondly considered the words “any conduct” read with the direction that it be disregarded and held that conduct must be disregarded whether it suggests that a fear is well-founded or not. This is a conclusion as to the intended evidentiary effect of the direction. It therefore depends upon the object of sub-s (3), but that object was not further discussed by the Court. The Court took the words to refer to conduct of any kind regardless of any evidentiary effect it may have.
12. The only qualification which the Full Court admitted to the application of s 91R(3) to conduct was the proviso in par (b), to which attention may now be directed. As will be seen, the inquiry to which it gives rise, and the conclusions thereby reached, are important to an understanding of the operation of s 91R(3).
13. The proviso, in par (b) of s 91R(3), is not expressed to except from the statutory direction conduct of a particular kind. Rather, it qualifies the conduct which may be excepted from the operation of sub-s (3) by reference to the person’s motive. If a person is able to satisfy the decision-maker that the conduct was engaged in for some reason other than to strengthen the person’s claim, the decision-maker may have regard to it. The conduct which the decision-maker is able to take into account is that engaged in “otherwise” than for that purpose or motive.
14. In considering the operation of the proviso in par (b) it is necessary to bear in mind that “the purpose” spoken of is a singular purpose. It is the purpose of strengthening the claim. Sub-section (3) is concerned with conduct which is engaged in for that purpose alone. This meaning accords with the statement by Gummow J in Somaghi[59], that conduct which has as its sole purpose the creation of a claim to a well-founded fear of persecution, should not be taken into account. It is confirmed by references in the Explanatory Memorandum to a person having a “specific intention”[60] and in the Second Reading Speech, to actions undertaken “just” or “purely” to strengthen claims to protection, as being the concern of sub-s (3)[61].
15. It follows that where it is accepted that a person had more than one reason for engaging in the conduct they will satisfy the requirement of the proviso. Such a situation may arise, for example, where a person satisfies the decision-maker that conduct was undertaken in Australia in order to continue the practice of their religion. It will usually follow in such a circumstance that the person’s claim will be strengthened by their engagement in that conduct. In many such cases the person will be conscious of that effect when engaging in the conduct. It could then be said that a reason for the person’s conduct is to strengthen their claim, although it is not the only reason. But because it was not the sole reason for the conduct, the conduct may be taken into account.
16. Paragraph (b) of sub-s (3) is not expressed in terms which require a decision-maker to state a conclusion as to the person’s motive or motives, only whether the decision-maker is satisfied that the person had a motive for the conduct in addition to that to strengthen the claim. Regardless of the conclusion stated, because the person’s sole purpose is the point of reference, the decision-maker will necessarily determine whether the person had only one motive, that to which par (b) refers. And if the decision-maker is not satisfied by the explanation given for the conduct, the decision-maker will have determined that the person’s only motive was the strengthening of the person’s claim.
17. That conclusion raises a fundamental question about what may be taken to be the intended operation of sub-s (3). The decision-maker who has found that a person had only the motive spoken of, in engaging in the conduct, will have at his or her disposal a finding which may be relevant to the person’s credibility. Such a conclusion will have involved a rejection of the explanation tendered. It seems unlikely to have been intended that a decision-maker undertake the inquiry about the person’s motive dictated by sub-s (3), reach a conclusion and then be required to put it out of his or her mind. The result would be to deny the decision-maker evidence or findings which might be influential to the assessment which is at the centre of his or her statutory task. Applying the section in this way would permit a person to overcome difficulties created by the person’s deliberate engagement in the conduct, the motive for which is an issue raised by sub-s (3) itself. It would defeat the object of sub-s (3) which is to prevent claimants from gaining an advantage from conduct undertaken in Australia. The result of such a construction would be both inconvenient and improbable. This may suggest that an alternative to a literal approach, one which more closely conforms to the legislative intent, is preferable[62].
18. To this point discussion has centred upon the answer to the inquiry in par (b), about the motive of the person, in identifying the conduct which sub-s (3) intends to be included or excluded from consideration of a claim to fear persecution. From that viewpoint, engaging in conduct for the relevant motive will result in its exclusion. But the other reason for its exclusion relates to the quality of the conduct itself. Paragraph (b) itself elucidates this meaning of “conduct”. The reason the conduct is to be excluded is that it would have the effect of strengthening the claim, if it were taken into account. The object of sub-s (3) is to deny that evidentiary effect. It requires that evidence of conduct not be applied for the purpose for which it was intended by the person, to strengthen that person’s claim to refugee status where it would have that effect. So understood, sub-s (3) says nothing about evidence of conduct which would have the opposite effect, and is in fact adverse to the claim.
19. The approach of the Full Court was to regard sub-s (3) as engaged once the inquiry in par (b) was answered. This does not give sufficient weight to the underlying objective of sub-s (3). It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
20. It is essential that the object of s 91R(3) and the mischief it was intended to remedy be taken into account in construing it[63]. The Full Court referred to that object but did not take it into account in that process, with the result that its operation is wider than can be seen as necessary or intended. True it is that the object or purpose of a statutory provision is more often called in aid of a broad construction, one broader than might be achieved by a literal approach. In this case the object of s 91R(3) requires that the section be read more narrowly[64]. It should not be read as requiring evidence of a person’s conduct in Australia, or that person’s motive for that conduct, to be disregarded for any purpose in connection with the determination of their application for a protection visa. Evidence of that conduct and findings about motive may be applied to discredit the applicant’s claim.

Conclusions 

SZJGV 

1. The Tribunal was not in error in taking into account the deliberate engagement of the first respondent in Falun Gong-related activities in Australia as a matter adversely affecting his credit and as supporting its view that his claim to fear harm from persecution lacked credibility. It did not contravene s 91R(3).

SZJXO 

1. The Tribunal was not in error in taking into account its finding about the first respondent’s motivation for undertaking Falun Gong-related activities in Australia in determining whether he would practise Falun Gong on his return to China and for that reason to fear persecution.

Orders

1.  In each case the appeal by the Minister should be allowed. The orders of the Full Court of the Federal Court in SZJGV should be set aside, save for those by which the Minister is to pay the costs of the appeal and of the review by the Federal Magistrates Court. In SZJXO the orders of the Full Court of the Federal Court should be set aside save for those by which leave to appeal was granted and those by which the Minister is to pay the costs of that application and the appeal, and of the review by the Federal Magistrates Court. In each case there should be an order that the first respondent’s appeal to the Full Court of the Federal Court be otherwise dismissed. In accordance with the undertaking given by the Minister as a condition of special leave there should be a further order in each case that the appellant pay the first respondent’s costs of this appeal.

[2] [2001] FCA 82; (2001) 105 FCR 277.

[3] The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

[4] In Mohammed the applicant sent a letter to his family in his country of origin containing gratuitous material which, upon its predictable interception by security forces in that country, would alert them to his opposition to the government. In Farahanipour the applicant was found to have arranged for publication of an article in a newspaper in Australia, citing comments by him severely critical of the activities of the government in his country of origin and calculated to bring himself to the attention of the authorities in that country.

[5] Migration Act, s 36(2)(a).

[6] Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 at 15-16 [42]- [43] per McHugh and Gummow JJ; [2002] HCA 14.

[7] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422.

[8] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.

[9] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304 per Gibbs CJ; [1981] HCA 26; Cramas Properties Ltd v Connaught Fur Trimmings Ltd [1965] 1 WLR 892 at 899 per Lord Reid; [1965] 2 All ER 382 at 386.

[10] Maxwell, On the Interpretation of Statutes, 12th ed (1969) at 228.

[11] [2000] UKHL 15; [2000] 1 WLR 586; [2000] 2 All ER 109.

[12] Cross, Statutory Interpretation, 3rd ed (1995) at 103.

[13] [2000] UKHL 15; [2000] 1 WLR 586 at 592; [2000] UKHL 15; [2000] 2 All ER 109 at 115.

[14] [2000] UKHL 15; [2000] 1 WLR 586 at 592; [2000] UKHL 15; [2000] 2 All ER 109 at 115. See also R (Confederation of Passenger Transport UK) v Humber Bridge Board [2004] QB 310 at 326 [53] and 333-334 [82]; R (Crown Prosecution Service) v Bow Street Magistrates’ Court [2007] 1 WLR 291 at 301 [41]-[44]; [2006] EWHC 1763; [2006] 4 All ER 1342 at 1352.

[15] Oxford English Dictionary, 2nd ed (1989), vol XX at 221.

[16] The Oxford English Dictionary, 2nd ed (1989), vol XX at 221 refers to a usage of “whether” which, by “suppression of the second alternative”, introduces a “simple dependent question, and becomes the ordinary sign of indirect interrogation”. The Dictionary refers, by way of example, to Ben Jonson’s epigramme to John Donne “Who shall doubt, Donne, [whether] I a Poet bee, When I dare send my Epigrammes to thee?”. Fowler refers to the misuse of “that” and “whether” in connection with the word “doubtful”: Fowler’s Modern English Usage, 2nd ed (1965) at 139. The usage of “whether” to mean “that” was argued in Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661 and rejected on the basis that there was not “sufficient reason” to depart from the ordinary meaning of the word “whether”: at 666 per Hudson J; see also at 662 per Dean J and 671 per Little J.

[17] Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

[18] Section 36(2) provided at the relevant time:

“A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa.”

[19] R v Vasey [1905] 2 KB 748 at 751 quoted by Dixon J in H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282 at 318; [1950] HCA 11.

[20] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320; [1981] HCA 26.

[21] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [25].

[22] Cooper Brookes [1981] HCA 26; (1981) 147 CLR 297.

[23] Fowler, A Dictionary of Modern English Usage, (1926) at 121-122.

[24] See Fowler’s Modern English Usage, 2nd ed (1965) at 139, building on Gowers’ more pithy advice about the word “doubt” in ABC of Plain Words, (1951) at 46: “Idiom requires whether after a positive statement and that after a negative.” Burchfield treated the point differently in the third edition: The New Fowler’s Modern English Usage, 3rd ed (1996) at 229.

[25] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515.

[26] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 527 [22].

[27] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [24].

[28] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [24].

[29] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528-529 [27].

[30] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 529 [28].

[31] Migration Act 1958 (Cth), s 36(2)(a).

[32] Done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together here referred to as “the Convention”).

[33] Migration Legislation Amendment Act (No 6) 2001 (Cth), Sched 1.

[34] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (1979, rev ed 1992) at 22 [94]; Hathaway, The Law of Refugee Status, (1991) at 33; Waldman, The Definition of Convention Refugee, (2001) at [8.102.1].

[35] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (1979, rev ed 1992) at 22 [95]-[96].

[36] See for example Re HB, Refugee Appeal No 2254/94 (NZRSAA) 21 September 1994, available at http://www.refugee.org.nz/Casesearch/Fulltext/2254-94.htm and in (1995) 7 International Journal of Refugee Law 332.

[37] Danian v Secretary of State for the Home Department [1999] TLR 756; Ghasemian v Canada (Minister of Citizenship and Immigration) (2003) 242 FTR 164 at 170 [31]-[33] per Gauthier J.

[38] [1991] FCA 389; (1991) 31 FCR 100.

[39] [1991] FCA 389; (1991) 31 FCR 100 at 118.

[40] (1999) 56 ALD 210.

[41] Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576; (2000) 98 FCR 405, Spender and French JJ, Carr J dissenting; and see also Hathaway, The Law of Refugee Status, (1991) at 39.

[42] [2001] FCA 82; (2001) 105 FCR 277, Ryan and RD Nicholson JJ, Tamberlin J dissenting.

[43] Mohammed v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 210 at 215 [28].

[44] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [27].

[45] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [27].

[46] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [29].

[47] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422.

[48] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422; and see Migration Act 1958, s 417.

[49] The word “purpose” could be used in different senses in these reasons: to refer to a person’s reason or motive in par (b) of s 91R(3); to refer to the statutory purpose or object of sub-s (3); and to refer to the purposes of the decision-maker in using evidence of conduct. To avoid confusion, in these reasons reference is made to a person’s motive; to the statutory object; and to the decision-maker’s purpose.

[50] Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ; [1955] HCA 27, referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28.

[51] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; [1997] HCA 2.

[52] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [25].

[53] Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 118.

[54] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [24].

[55] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 521 [10].

[56] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at 498 [72] per Gummow and Hayne JJ; [2003] HCA 71; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; [1997] HCA 22.

[57] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at 498-499 [72] per Gummow and Hayne JJ; and see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62.

[58] At [36] of these reasons.

[59] [1991] FCA 389; (1991) 31 FCR 100 at 118.

[60] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [27].

[61] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422.

[62] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.

[63] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Acts Interpretation Act 1901 (Cth), s 15AA.

[64] See K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 318-319 per Mason J; [1985] HCA 48; Owners of “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 420; [1994] HCA 54; and see Bennion, Statutory Interpretation, 5th ed (2008) at 939.

Last Updated: 23 September 2009

Immigration – Refugees – Review of visa application before Refugee Review Tribunal (“RRT”) – First respondent appointed third respondent as his “authorised recipient” to receive documents in connection with his review – Section 441G(1) of Migration Act 1958 (Cth) (“Act”) required RRT to give review documents to authorised recipient instead of first respondent – RRT gave a notice inviting the respondents to attend a hearing to first respondent but not to authorised recipient – All respondents attended the hearing and no unfairness or prejudice arose from non-compliance with s 441G(1) of Act – Whether non-compliance with procedural steps in s 441G of Act compels conclusion that decision is invalid – Whether circumstances amount to denial of natural justice.

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, CRENNAN AND BELL JJ

 MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZIZO & ORS RESPONDENTS

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37
23 September 2009
S568/2008

ORDER

1.  Appeal allowed.
2. Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court of Australia on 3 July 2008, and in lieu thereof order that:

(a) order 2 of the orders made by the Federal Magistrates Court of Australia on 5 September 2007 be set aside; and

 (b) the appeal be otherwise dismissed.

1.  Appellant to pay the first to sixth respondents’ costs of the appeal to this Court.

On appeal from the Federal Court of Australia

 Representation

 N J Williams SC with K A Stern for the appellant (instructed by Clayton Utz Lawyers)

 B W Walker SC with B K Nolan for the first to sixth respondents (instructed by the first to sixth respondents)

 Submitting appearance for the seventh respondent

 Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Migration Act 1958 (Cth), ss 422B, 425A, 441A, 441G.

1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND BELL JJ. A decision made by the appellant, the Minister for Immigration and Citizenship (“the Minister”), or his delegate, refusing to grant a protection visa to an applicant who is physically present in the migration zone is reviewable by the Refugee Review Tribunal (“the Tribunal”)[1]. The conduct of the review is governed by the provisions of Div 4 of Pt 7 of the Migration Act 1958 (Cth) (“the Act“). Section 422B(1) provides that the provisions of Div 4 are taken to be an exhaustive statement of the requirements of the natural justice hearing rule (“the hearing rule”) in relation to the matters that they deal with. The manner of giving and receiving documents in connection with the review is governed by the provisions of Div 7A of Pt 7 of the Act. Section 422B(2) provides that the provisions of Div 7A, in so far as they relate to the conduct of reviews under Div 4, are to be taken to be an exhaustive statement of the hearing rule in relation to the matters that they deal with. An applicant for review may appoint a person, an “authorised recipient”, to receive documents in connection with the review on his or her behalf. In the event that an applicant nominates an authorised recipient, the Tribunal is required to give review documents to that person instead of giving the documents to the applicant[2].
2. In this case, the Tribunal failed to give a notice inviting the applicants for review to attend a hearing to the authorised recipient in the manner that is prescribed by Div 7A. As will appear, this did not occasion any adverse consequence to any of the applicants for review, who are the first to sixth respondents to the appeal (“the respondents”). An effective response was made to the notice and all the respondents, including the authorised recipient, attended the hearing, which was not otherwise the subject of any procedural flaw.
3. The Full Court of the Federal Court of Australia (Moore, Marshall and Lander JJ) held that the Tribunal’s failure to comply with the obligations imposed on it under Div 7A was a jurisdictional error. The Court considered that in the absence of exceptional circumstances it should not withhold relief in a case in which the Tribunal had failed to comply with imperative statutory obligations owed to an applicant for review[3]. Since there were no such exceptional circumstances in this case the Court made orders quashing the Tribunal’s decision and remitting the respondents’ application for review to the Tribunal to be determined according to law.
4. The Minister appeals by special leave to this Court from the decision of the Full Court. For the reasons that follow the appeal should be allowed and the orders made in the Full Court should be set aside.

The facts

1. The respondents are a family, who come from Lebanon. The first respondent is the husband, the second respondent is his wife and the third to sixth respondents are their children. The family arrived in Australia on 21 March 2001. On 14 November 2005 they applied for protection visas. The first respondent made substantive claims to being a person to whom Australia owes protection obligations under the Refugees Convention[4] as amended by the Refugees Protocol[5] (together “the Convention”)[6]. The remaining respondents applied for protection visas as the first respondent’s spouse and dependants respectively[7].
2. On 13 January 2006 a delegate of the Minister refused the respondents’ applications on the ground that none satisfied the criterion for the issue of a protection visa.
3. The respondents filed an application for review of the delegate’s decision. Their application was submitted on a pro forma issued by the Tribunal. Multiple applicants for review are permitted to submit applications on the same form. The form which the respondents signed contained the following printed advice:

“Each person is an applicant in his or her own right. Unless an included applicant advises the Tribunal otherwise, the Tribunal will communicate with Applicant 1 or his or her authorised recipient. Applicant 1 must inform each applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.”

1. The first respondent was named as Applicant 1 in the application. He nominated his eldest daughter, the third respondent, SZIZQ, as his authorised recipient. SZIZQ’s address was given as the address of the premises at which all of the respondents were residing (“the family residence”). Telephone numbers for a landline and a mobile service were supplied as a means of contacting SZIZQ. The first respondent signed a declaration undertaking to inform each of the respondents of the contents of any communication from the Tribunal and to reply to the Tribunal on their behalf. The remaining five respondents, including SZIZQ, signed the application acknowledging that each had read and understood the information supplied in it and authorising the Tribunal to communicate with the first respondent or his authorised recipient about the application. The application was dated 6 February 2006. It was received by the Tribunal on 9 February 2006.
2. The Tribunal sent a notice by prepaid post addressed to the first respondent inviting him and the other respondents to attend a hearing, to be held on 23 March 2006 (“the notice of hearing”). The first respondent was instructed to inform each of the other respondents of its contents, including that any response would be regarded by the Tribunal as a joint response, unless the Tribunal was advised otherwise. A brochure explaining what would happen on the day of the hearing, and a “response to hearing invitation” (“the response form”), were enclosed with the notice.
3. Neither the first respondent nor the second respondent speak or are literate in English. SZIZQ speaks and is literate in the Arabic, French and English languages. The response form was completed in English. It was signed by the first respondent and dated 6 March 2006. It was expressed to be “[s]igned on behalf of, and with the consent of, all family members included in the application.” The section of the response form containing a space for the provision of the name and contact details of the authorised recipient was left blank. The address of the family residence was given as the first respondent’s home and mailing address. The same landline and mobile telephone numbers as had earlier been given as contact telephone numbers for SZIZQ were given as contact numbers for the first respondent. The response form recorded that the first respondent needed the services of an interpreter in the Arabic language at the hearing. Two persons were nominated as witnesses whose evidence the respondents wished to place before the Tribunal.
4. Each of the respondents attended the hearing on 23 March 2006. The two witnesses who had been nominated in the response form attended the hearing and gave evidence. A third witness also gave evidence in support of the respondents’ application. The first and second respondents gave evidence at the hearing with the assistance of the interpreter. SZIZQ gave evidence without the assistance of an interpreter. In the course of the hearing the first respondent was shown his visa application and he said that his daughter had completed the form on his behalf on his instructions.
5. At the conclusion of the hearing the Tribunal member informed the respondents:

“[I]f everybody is happy with this unless there is something else you want to put to me … is we will adjourn now close the hearing … ten days if you want to put anything else in that you think it’s relevant to your case”.

1. The Tribunal wrote to the first respondent by letter dated 27 March 2006 confirming the advice given at the hearing that the Tribunal had allowed 10 days in which to make further written submissions in relation to the review. The first respondent was asked to inform the other respondents of the contents of the letter. Written submissions signed by the first, second and third respondents were submitted to the Tribunal along with supporting documents. They were received by the Tribunal on 7 April 2006.
2. On 6 June 2006 the Tribunal handed down its decision, affirming the decision under review.
3. The respondents sought judicial review of the Tribunal’s determination before the Federal Magistrates Court. The application was dismissed on 5 September 2007[8]. The respondents appealed from that decision. The appeal came before a single judge exercising the appellate jurisdiction of the Federal Court[9]. Counsel appearing for the Minister drew to the Court’s attention that the notice of hearing had been given to the first respondent and not to his authorised recipient. This issue had not been raised before the Federal Magistrates Court. The appeal was referred to the Full Court[10]. The respondents were referred by the Registrar of the Federal Court to a legal practitioner on the Pro Bono Panel for legal assistance in relation to their appeal. An amended notice of appeal was filed, which abandoned the grounds originally relied upon and substituted a single ground contending that the decision of the Tribunal had been attended by jurisdictional error.

The statutory scheme

1. If a valid application is made to review a decision to refuse to grant a protection visa the Tribunal must review the decision[11]. The Tribunal may, for the purposes of the review, exercise all the powers and discretions that are conferred by the Act on the person who made the decision[12]. Its powers include that it may set aside the decision and substitute a new decision, which is taken to be that of the Minister[13]. In carrying out its functions under the Act, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick[14]. It is not bound by technicalities, legal forms or rules of evidence and is required to act according to substantial justice and the merits of the case[15].
2. Because the Tribunal was not minded to decide the review in the respondents’ favour on the basis of the material before it, it was required to invite the respondents to appear at a hearing to give evidence and present any arguments relating to the issues arising in relation to the decision under review[16]. The obligation to give notice of the hearing was imposed by s 425A, which relevantly provides:

“(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:

(a) … by one of the methods specified in section 441A; …

(3) The period of notice given must be at least the prescribed period …
(4) The notice must contain a statement of the effect of section 426A.”

1. The prescribed period of notice in the case of an applicant who is not a detainee is 14 days after the day on which the notice is received[17]. Section 441C sets out when a person is taken to have received a document that is given by one of the methods in s 441A.
2. Section 426A permits the Tribunal, in a case in which an applicant for review has failed to appear at a scheduled hearing, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
3. The first respondent gave the Tribunal written notice of SZIZQ’s name and address as his authorised recipient. This engaged the provisions of s 441G, which, relevantly, provides:

“(1) If:
(a) A person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
…
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
…”

1. The provisions of s 425A(2)(a) applied to the review of the respondents’ application and the Tribunal was required to give the notice of hearing by one of the methods prescribed in s 441A. One such method is by a member, the Registrar or an officer of the Tribunal dating the notice and dispatching it by prepaid post to the last address for service, or the last residential or business address, provided to the Tribunal by the recipient in connection with the review[18]. The provision does not, in terms, state that the recipient’s name is to be included on the envelope. However, the Minister did not contend that the notice, which was sent by prepaid post to the family residence, at which SZIZQ, the authorised recipient, was residing, had been given to her within the meaning of s 441G.

The Full Court’s reasons

1. The Full Court considered that s 422B, which is contained in Div 4, indicated the Parliament’s intention that there be “strict adherence to each of the procedural steps leading up to the hearing”[19]. Section 422B provides:

“422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.”

1. The Full Court pointed out that there are good reasons why the Tribunal is required to give notice to the authorised recipient instead of (or in addition to) the applicant; in many cases applicants for protection visas will not speak English or be literate in English and few may be expected to understand Australia’s obligations under the Convention[20]. It considered that usually when an applicant nominates an authorised recipient it will be for the purpose of having that person assist the applicant to present his or her case at the hearing[21]. It concluded that “any failure by the Tribunal to comply with s 441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error”[22].

The issue

1. It is well established that the denial of natural justice to an applicant for a visa may result in a decision that exceeds jurisdiction for which prohibition will go[23]. This is not such a case. The Full Court found that no unfairness or prejudice was visited upon any of the respondents by reason of the Tribunal’sfailure to comply with its statutory obligation[24]. It approached the matter on the footing that each procedural step in Divs 4 and 7A imposed an imperative duty on the Tribunal forming part of the statutory statement of the hearing rule[25].
2. The Act does not provide for the consequences of non-compliance with any of the provisions of Div 4 or Div 7A.
3. Written notice of the invitation to appear before the Tribunal to give evidence and to present arguments[26] came to the attention of the applicants for review (the respondents in this Court) and their authorised recipient[27] within the prescribed period[28]. The notice contained the matters prescribed by the Act[29]. The notice was given to one of the applicants for review (the first respondent) in one of the ways provided by s 441A. There was no dispute, however, that the Tribunal did not give the notice of hearing to the authorised recipient. When s 441G(1) provides that, if an applicant for review has nominated an authorised recipient, “the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”, what consequence follows if an invitation to attend a hearing was not given to the authorised recipient, but was given to one of the applicants for review, and came to the attention of other applicants for review and the authorised recipient in due time? Was it a purpose of the legislation[30] that, despite holding a hearing at which all of the applicants for review, including their authorised recipient, appeared before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review[31], the Tribunal could not validly decide the review?

The submissions

1. The respondents submit that the Full Court was right to conclude that compliance with each of the steps in Divs 4 and 7A conditions the Tribunal’s jurisdiction to determine a review. In their submission the purpose of the statutory regime is to ensure that certainty attends Tribunal decisions; a decision made in conformity with each identified step is within jurisdiction and a decision not so made is not. They contend that the Parliament’s intention was to remove debate in the courts about whether an applicant for review has been denied natural justice. In this respect they draw attention to the Minister’s speech on the second reading of the Bill for the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which introduced s 422B into the Act[32]:

“In 1998, the codes of procedure for the Migration Review Tribunal and the Refugee Review Tribunal were enhanced.
The purpose of each of these codes is to enable decision makers to deal with visa applications and cancellations fairly, efficiently and quickly.
It was also intended that they would replace the uncertain common law requirements of the natural justice ‘hearing rule’, in particular, which had previously applied to decision makers.
However, last year in the Miah case, the High Court found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements.
This means that, even where a decision maker has followed the code in every single respect, there could still be a breach of the common law requirements of the natural justice hearing rule.
A further consequence of the High Court’s decision is that there is legal uncertainty about the procedures which decision makers are required to follow to make a lawful decision.”

1. The Minister submits that compliance with each of the identified steps in Divs 4 and 7A will always discharge the Tribunal’s obligations under the hearing rule but that it does not follow that departure from any of the steps, including those dealing with the giving and receiving of review documents, is intended to exclude consideration by the court of whether the requirements of natural justice have been satisfied.

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs

1. Before turning to the characterisation of the obligations imposed on the Tribunal under ss 441G and 441A, reference should be made to the decision of this Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[33]. In that case the Tribunal failed to provide to the applicant for review written particulars of information that it considered would be the reason, or part of the reason, for affirming the decision under review. This was a breach of the requirements of s 424A, which is in Div 4. Justice McHugh, who was one of the Justices who formed the majority, concluded as follows[34]:

“However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal’s decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information … If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no ‘partial compliance’ with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.”

1. Justice Hayne (with whose reasons on this aspect Kirby J agreed) observed that the evident purpose of Pt 7, and Div 4 in particular, is to afford procedural fairness to applicants[35]. His Honour identified the focus of the inquiry as to jurisdictional error as being the validity of the act done in purported performance of the Tribunal’s obligation to review and decide the matter[36]. He concluded that[37]:

“Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid.”

1. It is to be observed that the obligation imposed by s 424A, that the Tribunal give an applicant written particulars of any adverse information including of the relevance of that information to the review, is of a different character to the obligation imposed on the Tribunal to give notice of a hearing in the manner that is prescribed by s 441A.

Consideration

1. SAAP was concerned with the Act as it stood before the introduction of s 422B. The validity of s 422B was assumed by the parties and this appeal does not raise consideration of the scope of its operation. In SZBYR v Minister for Immigration and Citizenship[38] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed that in light of the introduction of s 422B it would be surprising if s 424A were interpreted as having an operation going well beyond the requirements of the hearing rule at common law. That observation is pertinent to the consideration of whether there is to be discerned from the legislative scheme an intention to invalidate in consequence of non-compliance with any of the obligations dealing with the manner of giving and receiving review documents.
2. The obligations imposed by s 425A with respect to giving notice of the hearing are directed to ensuring that an applicant has adequate time in which to prepare his or her case. (The requirement for service by a method prescribed by s 441A may be thought to serve a different purpose, which is to lay the foundation for the Tribunal to determine a review without further notice where an applicant has failed to appear at a scheduled hearing.) As the Full Court found, s 441G contains a statutory recognition that some applicants are unlikely to understand the purport of the notice or to be able to properly prepare their case without assistance. In this respect s 441G may be seen as being concerned with the provision of effective notice of the hearing.
3. In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information[39] and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review[40].
4. While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal’s omission and they do not take issue with the Full Court’s characterisation of the result in the circumstances as being “rather absurd”[41]. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing[42]. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
5. Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
6. For these reasons the appeal should be allowed.

Orders

1. As a condition of the grant of special leave the Minister undertook not to seek to disturb any orders as to costs which had been made in the courts below. The Full Court of the Federal Court allowed the respondents’ appeal (order 1) and set aside the order made in the Federal Magistrates Court on 5 September 2007 (order 2) and ordered the Minister to pay the respondents’ costs of the appeal (order 3). Accordingly, the orders that we propose are as follows:
   1. Appeal allowed.
   2. Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court of Australia on 3 July 2008, and in lieu thereof order that:

(a) order 2 of the orders made by the Federal Magistrates Court of Australia on 5 September 2007 be set aside; and

(b) the appeal be otherwise dismissed.

1. Appellant to pay the first to sixth respondents’ costs of the appeal to this Court.

[2] Section 441G.

[3] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 168-169 [97] per Lander J (Moore and Marshall JJ concurring).

[4] The Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

[5] The Protocol relating to the Status of Refugees done at New York on 31 January 1967.

[6] Section 36(2)(a).

[7] The second to sixth respondents’ application was made pursuant to s 36(2)(b) of the Act.

[8] SZIZO v Minister for Immigration [2007] FMCA 1339.

[9] Section 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth).

[10] Section 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth).

[11] Section 414(1).

[12] Section 415(1).

[13] Section 415(2)(d) and (3)(b).

[14] Section 420(1).

[15] Section 420(2).

[16] Section 425.

[17] Regulation 4.35D(b) of the Migration Regulations 1994 (Cth).

[18] Section 441A(4).

[19] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [87].

[20] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [88]-[89].

[21] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [90].

[22] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [90].

[23] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 89 [5] per Gleeson CJ, 91 [17] per Gaudron and Gummow JJ; [2000] HCA 57; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at 67 [26] per Gleeson CJ and Hayne J; [2001] HCA 22; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77.

[24] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [91].

[25] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 166-167 [87].

[26] Section 425(1).

[27] Section 441G.

[28] Section 425A(3).

[29] Sections 425A(1) and 426(1).

[30] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91]; [1998] HCA 28.

[31] Section 425(1).

[32] Australia, House of Representatives, Parliamentary Debates (Hansard), 13 March 2002 at 1106.

[33] (2005) 228 CLR 294; [2005] HCA 24.

[34] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 321 [77].

[35] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 350 [192].

[36] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 353-354 [205].

[37] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355 [208] (emphasis in original).

[38] [2007] HCA 26; (2007) 81 ALJR 1190 at 1195 [14]; [2007] HCA 26; 235 ALR 609 at 614; [2007] HCA 26.

[39] Section 424A(1).

[40] Section 425.

[41] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [91].

[42] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [87].

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

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

Migration Act 1958 (Cth), ss 141, 142, 143, 145, 147, 151, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164

Andreola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 345 referred to
Annetts v McCann (1990) 170 CLR 596 referred to
Goldie v Commonwealth of Australia [2002] FCA 261 followed
Kioa v West (1985) 159 CLR 550 referred to
Lee v Minister for Immigration and Citizenship (2008) 171 FCR 38 followed
Leghaei v Director-General of Security (2007) 97 ALD 516 referred to
Wasfi v The Commonwealth (1988) 83 FCR 16 not followed
Whitehorn v The Queen (1983) 152 CLR 657 referred to

MINISTER FOR IMMIGRATION AND CITIZENSHIP and ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA v KUANG LUN ZHANG
NSD 516 of 2009

STONE, JACOBSON AND FOSTER JJ
24 SEPTEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION NSD 516 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Appellant

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Second Appellant

AND: KUANG LUN ZHANG
Respondent

JUDGES: STONE, JACOBSON AND FOSTER JJ
DATE OF ORDER: 24 SEPTEMBER 2009
WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The declaration and orders made by Smith FM on 12 May 2009 be set aside.
3. In lieu of the said orders made by Smith FM:
3.1 The application be dismissed.
3.2 The respondent to the appeal pay the appellant’s costs of and incidental to the proceedings below (including the costs of the interlocutory application) as taxed or agreed.
4. The respondent pay the costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION NSD 516 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Appellant

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Second Appellant

AND: KUANG LUN ZHANG
Respondent

JUDGES: STONE, JACOBSON AND FOSTER JJ
DATE: 24 SEPTEMBER 2009
PLACE: SYDNEY

REASONS FOR JUDGMENT
THE COURT
INTRODUCTION
1 Division 4 of Pt 2 of the Migration Act 1958 (Cth) (“the Act”) prescribes a legislative scheme to secure the presence in Australia of a non-citizen whose presence is required for the purposes of the administration of criminal justice.
2 It does so by a two-stage process. The first stage is the issue by the Attorney-General (“the Attorney”) of a criminal justice entry certificate or a criminal justice stay certificate. The second stage is the issue, in the absolute discretion of the Minister for Immigration and Citizenship (“the Minister”), of a criminal justice visa.
3 The present proceedings concern the cancellation by the Attorney of a criminal justice stay certificate issued by the Attorney in respect of the respondent to this appeal, Mr Kuang Lun Zhang, and the consequent cancellation by the Minister of Mr Zhang’s criminal justice stay visa. In the Federal Magistrates Court, Mr Zhang succeeded in obtaining relief in respect of those cancellations. The Minister and the Attorney have appealed to this Court seeking to set aside the Federal Magistrate’s decision.
4 The criminal justice stay certificate was issued by a delegate of the Attorney on 18 June 2004. It was cancelled by another delegate on 24 April 2008. The cancellation was effected without the delegate affording Mr Zhang a hearing or an opportunity to make submissions as to why the criminal justice stay certificate should not be cancelled.
5 The principal issue which arises in this appeal is whether the delegate’s cancellation of the certificate was conditioned upon an obligation to afford Mr Zhang procedural fairness.
6 That question is to be considered essentially as one of statutory construction of Div 4, in the light of its subject matter, scope and purpose: Kioa v West (1985) 159 CLR 550 at 585 per Mason J, 619 per Brennan J.
7 The criminal justice stay certificate was issued at the request of an officer of the Department of Immigration and Multicultural and Indigenous Affairs (as it was then). In 2004, it was the Department’s view that Mr Zhang would be required to stay in Australia for six months only. The terms of the request were somewhat cryptic. So too were the terms of the Department’s request, some four years later, to cancel the certificate.
8 The request to cancel the certificate was contained in an email from an officer of the Department. The email contained a one-line statement that Mr Zhang was no longer required to give evidence in the matter for which the certificate had been issued.
9 Counsel for Mr Zhang also contend that, even if the exercise of the power of cancellation was not conditioned by the requirements of natural justice, the Attorney’s delegate erred in law in concluding that the statutory conditions for the exercise of the power were satisfied.
10 The effect of this submission was that, upon the proper construction of s 162, the delegate was legally bound to have before her something more than an unexplained one-line statement from an officer of the prosecuting authority that Mr Zhang was no longer required to give evidence.
11 The only other issue which arises in the appeal is whether, in the event that the procedural fairness question or the sufficiency of evidence question is answered favourably to Mr Zhang, relief ought to be denied in the exercise of the Court’s discretion.
12 That issue arises because the Attorney submits that cancellation of the visa is inevitable so that relief would be futile.
THE LEGISLATIVE SCHEME
13 Division 3 of Pt 2 of the Act deals with visas for non-citizens. Section 38 of the Act, which is contained in Div 3 of Pt 2, creates a class of temporary visas to be known as criminal justice visas which are to be granted under Sub-div D of Div 4 of Pt 2.
14 The effect of s 44(1) of the Act is that the provisions of Div 3 which deal with applications for visas and the code of procedure for dealing with such applications do not apply to criminal justice visas.
15 Division 4 is headed “Criminal justice visitors”. The object of that Division is stated in s 141 to be 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.
16 The specificity of the purpose for which the Division was enacted is emphasised by the definition of the otherwise broad phrase “the administration of criminal justice”. This phrase is defined in s 142 to mean:
(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.
17 The powers which are conferred on the Attorney by Div 4 may be delegated to a limited class of persons as stated in s 143. They are senior Commonwealth public servants, namely:
• the Secretary to the Attorney-General’s Department; or
• a Senior Executive Service (“SES”) employee, or an acting SES employee, in the Attorney-General’s Department.
18 Provision is also made in s 143 for a very limited delegation of power to a commissioned police officer in the Australian Federal Police to issue a criminal justice stay certificate to remain in force for no longer than five days. That power may only be exercised where the non-citizen is at a “port”. The apparent purpose of this delegation is to permit the police officer to issue a certificate where a person is about to leave Australia from an airport or other facility.
19 Sub-division B provides for the issue of criminal justice entry certificates. Section 145 empowers the Attorney to give a certificate providing that the presence of a non-citizen in Australia is required for the administration of criminal justice if three pre-conditions are met.
20 The first pre-condition is that the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of:
• the Extradition Act 1988 (Cth); or
• the International War Crimes Tribunals Act 1995 (Cth); or
• the International Criminal Court Act 2002 (Cth); or
• the Mutual Assistance in Criminal Matters Act 1987 (Cth); or
• the administration of justice in relation to an offence against the law of the Commonwealth. (emphasis added)
21 The second pre-condition is that the presence in Australia of the non-citizen for the stipulated purposes would not hinder the national interest.
22 The third pre-condition is that satisfactory arrangements have been made to ensure that the person or organisation who wants the non-citizen to be brought to Australia will meet the cost of bringing the non-citizen to Australia, the cost of keeping him or her in Australia and the costs of removal.
23 There is a corresponding provision in s 146 for the issue by an official of a State of a certificate providing that the temporary presence of a non-citizen who is outside Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State. In Div 4, “State” includes “Territory”.
24 If the certificate is issued by a State official, the Attorney may endorse it with a statement that it is to be a criminal justice certificate for the purposes of Div 4.
25 Sub-division C deals with the issue of a criminal justice stay certificates for unlawful non-citizens. In the ordinary course of events, such a person would be liable to be placed in immigration detention under Div 7 of Pt 2 and removed from Australia under Div 8. He or she might also be liable to deportation under Div 9.
26 Section 147 empowers the Attorney to give a criminal justice stay certificate which temporarily prevents two of the statutory consequences of the status of an unlawful non-citizen, namely removal or deportation, from taking place.
27 The pre-conditions for the issue of a criminal justice stay certificate are similar to those for the issue of a criminal justice entry certificate, save that they are adapted so as to deal with the fact that the non-citizen is already in Australia. In particular, the pre-condition requiring an assessment of the likely danger to the national interest is not a condition for the issue of a criminal justice stay certificate.
28 Section 147 is a pivotal section to be considered on the appeal. We set it out in full:
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.
29 There is a corresponding provision for the issue of a stay certificate by an authorised State official in relation to an offence against a law of the State. This provision is found in s 148.
30 The legislation does not provide for any process by which an unlawful non-citizen might apply for the issue of either type of criminal justice stay certificate nor does the legislation stipulate that the person affected by the issue of such a certificate must be notified of the fact that the Attorney is considering issuing such a certificate. The non-citizen affected by the certificate may not, and, very often, will not have any idea that the Attorney is considering the issue of such a certificate.
31 The consequences of the issue of a criminal justice stay certificate are stated in s 150 which provides that, if such a certificate is in force, the non-citizen is not to be removed or deported.
32 The other consequence attaching to the status of unlawful non-citizenship, that is to say, liability to be placed or to remain in immigration detention, is not removed by the issue of a criminal justice stay certificate. It is only removed if the Minister exercises his or her discretion to issue a criminal justice visa: see below at [44] and [45].
33 An alternative means of securing the presence of an unlawful non-citizen in Australia is left open by s 151. That section provides that, if an unlawful non-citizen is to be, or is likely to be removed or deported, the Act does not prevent a court issuing for the purposes of the administration of criminal justice “in relation to an offence against a law” a criminal justice stay warrant to stay the removal or deportation.
34 If a criminal justice stay warrant is in force, the non-citizen is not to be removed or deported: s 151(2).
35 Sub-division D deals with the issue of criminal justice visas. It provides for two different types of visa so as to cover the entry of a non-citizen who is outside Australia and the stay in Australia of a non-citizen who is already present in Australia.
36 The two classes of visa are described in s 155. A criminal justice entry visa is a visa which permits a non-citizen to travel to and enter, and remain temporarily, in Australia: s 155(1).
37 A criminal justice stay visa is one which permits a non-citizen to remain temporarily in Australia: s 155(2).
38 An essential prerequisite for the issue of each class of criminal justice visa is the issue by the Attorney of a criminal justice certificate as is appropriate; that is to say, a criminal justice entry certificate for a criminal justice entry visa and a criminal justice stay certificate for a criminal justice stay visa: s 156 and s 157(a).
39 An alternative basis for the issue of a criminal justice stay visa is the issue by a court of a criminal justice stay warrant: s 157(b).
40 The criteria for the issue of either class of criminal justice visa are stated exhaustively in s 158. They “are, and only are”:
• the issue by the Attorney of a criminal justice certificate of the relevant type, or the issue by the court of a criminal justice stay warrant; and
• a decision by the Minister “in his absolute discretion”, that it is appropriate to grant the visa, having regard to:
(i) the safety of individuals and people generally;
(ii) in the case of a criminal justice entry visa, arrangements to ensure that the non-citizen can be removed; and
(iii) any other matter the Minister considers relevant.
41 Section 159 states the procedure for obtaining a criminal justice visa. It makes no provision for an application by the prospective visa holder. It merely states that if a criminal justice certificate or a criminal justice stay warrant is in force, the Minister may consider the grant of a criminal justice visa: s 159(1).
42 The scope of the Minister’s discretion is reiterated in s 159(2) which provides that, if the Minister is satisfied that the criteria have been met, he or she may grant the visa in the Minister’s “absolute discretion”.
43 A holder of a criminal justice entry visa must not do any work in Australia, whether for reward or otherwise: s 160(2). No such prohibition applies to the holder of a criminal justice stay visa.
44 The effect of the grant of a criminal justice visa is stated in s 161. It constitutes, inter alia, permission to remain in Australia while it is in force.
45 A criminal justice stay visa also entitles the holder to be released from immigration detention if, at the time when the visa is issued, that person is in detention: s 161(2). A criminal justice visa does not prevent the holder leaving Australia: s 161(3).
46 The holder of a criminal justice entry visa may not apply for a visa other than a protection visa: s 161(5).
47 Sub-division E deals with the cancellation of criminal justice certificates, criminal justice warrants and criminal justice visas.
48 The critical provision for present purposes is s 162(1) which provides for the cancellation of a certificate by the Attorney if the presence in Australia of the person “is no longer required for the purposes for which it was given”.
49 The full terms of s 162 of the Act are as follows:
(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.
50 The reference to “the Secretary” in s 162(2) is a reference to the Secretary to the Department of Immigration and Citizenship (“the Department”).
51 The Attorney is not required to notify the person in respect of whom the certificate was granted of his intention to cancel the certificate. Nor is the Minister required to notify the holder of a criminal justice stay visa of the imminent cancellation of that visa. This position stands in stark contrast to the position under s 51(4) of the Act as it stood immediately before the 1992 Amendments which brought in the current provisions. Under s 51(4), a criminal justice certificate could not be cancelled before reasonable notice in writing of the proposed cancellation had been given to the non-citizen and to the Minister.
52 Provision is also made for the cancellation of a stay warrant if the presence of the person is no longer required. If the warrant is still on foot, “a person entitled to apply for the warrant’s cancellation must apply to the court for the cancellation”: s 163(1).
53 Importantly, s 164 provides that the effect of the cancellation of a criminal justice certificate or a criminal justice stay warrant is that “any criminal justice visa granted because of the certificate or warrant is cancelled”.
BACKGROUND FACTS
54 The factual background is set out in some detail in the first of two judgments delivered at first instance by Federal Magistrate Smith. His Honour’s first judgment was interlocutory and dealt with the grant of interim relief: Zhang v Minister for Immigration and Citizenship [2009] FMCA 196 (“Zhang”). His Honour’s second judgment dealt with the grant of declaratory relief and constitutional writs: Zhang v Minister for Immigration and Multicultural Affairs (No 2) [2009] FMCA 458 (“Zhang No 2”).
55 The background set out below is mostly drawn from his Honour’s first judgment but we have supplemented it with other material that was in evidence in the Federal Magistrates Court.
56 Mr Zhang is a citizen of the People’s Republic of China who arrived in Australia on 16 June 2003. Shortly afterward, on 27 June 2003, he lodged an application for a protection visa which was refused by a delegate of the Minister. That decision was affirmed by the Refugee Review Tribunal in January 2004.
57 Subsequently, Mr Zhang gave information to the Department complaining about the conduct of the migration agent who had assisted him with his application. The Department then considered that Mr Zhang was a person who could assist it in an investigation and possible prosecution of that migration agent for contraventions of provisions of the Act.
58 On 5 May 2004, an officer of the Department signed a document which was apparently for consideration by his own Department. It was headed “Request for Criminal Justice Stay Visa”. It was stated to be a request in respect of Mr Zhang and the Department was shown as the “Requesting Agency”.
59 The request was in the form of a questionnaire which in large part dealt with the criteria for the grant of a criminal justice visa stated in s 158 of the Act. It stated that the reason why Mr Zhang was required in Australia was “[w]itness for DIMIA in an investigation of Migration Act offences”.
60 The request form stated that the likely duration of Mr Zhang’s stay in Australia would be six months.
61 On 18 June 2004, an officer of the Fraud Analysis Unit of the Department of Immigration sent a facsimile to an officer of the International Crime Branch of the Attorney-General’s Department in Canberra requesting the issue of criminal justice certificates for 16 persons, including five persons under the age of 18.
62 The facsimile in evidence was redacted so that only the name of Mr Zhang can be seen, but it would seem that the other named persons were also sought by the Department to assist in the investigation of offences involving the same migration agent.
63 On the same day, 18 June 2004, Ms Robin Warner, Assistant Secretary of the International Crime Branch in the Criminal Justice Division of the Attorney-General’s Department, issued a criminal justice stay certificate in respect of Mr Zhang under s 147 of the Act.
64 The certificate stated that Ms Warner was a delegate of the Attorney for the purposes of the Act. It recorded in terms of s 147 of the Act Ms Warner’s consideration of the criteria stated in that section and certified that the stay of the removal or deportation of Mr Zhang “is required for the administration of criminal justice”.
65 Also on 18 June 2004, an officer of the International Crime Branch of the Criminal Justice Division of the Attorney-General’s Department sent a facsimile to an officer of the Department of Immigration attaching criminal justice certificates for Mr Zhang and seven other persons.
66 In that facsimile, the officer requested the Department to issue “a visa” for Mr Zhang and the other named persons.
67 On 24 June 2004, an officer of the Department issued a criminal justice stay visa to Mr Zhang. The visa stated:
Your stay in Australia as a criminal justice stay visa holder has been approved until the criminal justice stay certificate is cancelled.
68 There was no evidence as to what occurred in relation to the investigation of the offences by the Department of Immigration for the next four years. However, in his application in the Federal Magistrates Court, Mr Zhang stated that:
• the Department asked him to be a witness in the case because he was “a victim”, and promised him that if the case lasted a long time, it would grant him a permanent resident visa;
• during the next four years, the Department refused to tell him anything about the progress of the proceedings.

69 On 20 February 2008, the Department of Immigration delivered to Mr Zhang a letter on the Department’s letterhead dated 18 February 2008. The relevant part of the letter was as follows:
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 fare 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.
70 Senior counsel for the Attorney submitted that the passages of the letter set out above sufficiently informed Mr Zhang of the critical issue on which the cancellation of the certificate was likely to turn and gave him an opportunity of replying to it. Thus he submitted that, even if the Attorney was subject to the obligation of procedural fairness, it was satisfied by the terms of the letter. We do not agree with that submission.
71 The letter was not sent by the Attorney or by an officer of his Department. It was sent by an officer of the Department of Immigration and Citizenship on the letterhead of that department. The subject matter of the letter was the criminal justice stay visa, not the criminal justice stay certificate.
72 It is true that the letter drew Mr Zhang’s attention to the operative provisions of the Act. But in its plain terms, the letter was an instruction to leave Australia or to apply for another form of visa. There was no suggestion that Mr Zhang had any entitlement to address the Director of Public Prosecutions’ decision or either of the foreshadowed decisions likely to be made by the Attorney and the Minister. No opportunity was given to Mr Zhang to address the subject matter of the letter. Indeed, the effect of the letter was that he was not entitled to be given such an opportunity.
73 On 14 April 2008, Mr Barry Montgomerie, an officer of the Department, NSW Fraud Control and Investigations, sent an email to Ms Melanie Lindner, a case support officer of the International Crime Cooperation Division of the Attorney-General’s Department. There was no indication in the email of the rank or position which Mr Montgomerie occupied in the Department.
74 The email from Mr Montgomerie referred to the dates of issue of the criminal justice certificate and the criminal justice visa. It continued:
Mr Zhang is now 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.
75 On 14 April 2008, Ms Lindner sent a confidential casework memo to Ms Anna Harmer, an Assistant Secretary in the International Crime Cooperation Division of the Attorney-General’s Department. The email stated, inter alia, that the Department had confirmed that Mr Zhang was no longer required to give evidence in the matter for which the criminal justice certificate had been issued and that the Department had requested that Mr Zhang’s certificate be cancelled.
76 The casework memo went on to refer to s 162(2) of the Act which requires notification to the Department of the date on which the Attorney intends to cancel the certificate. Ms Lindner requested Ms Harmer to sign an attached facsimile giving the requisite notice to the Department.
77 Ms Harmer sent the fax to the Department on 14 April 2008 giving notice of the matters required by s 162(2)(a), (b) and (c).
78 Also, on 14 April 2008, Mr Montgomerie wrote to Mr Zhang’s lawyers, informing them that Mr Zhang’s criminal justice stay visa was going to be cancelled. He said:
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.
79 In the letter, Mr Montgomerie explained the steps which Mr Zhang would need to take in order to obtain a bridging visa which would have allowed him to remain in Australia while the Minister again considered his request to remain in Australia permanently. In March 2008, Mr Zhang’s lawyers had made representations on behalf of Mr Zhang seeking a discretionary decision under s 417 of the Act allowing Mr Zhang to remain permanently in Australia. The Minister had declined to grant that request.
80 On 21 April 2008, Ms Lindner sent a further casework memo to Ms Harmer requesting that she sign the attached form of cancellation certificate for Mr Zhang. The memo repeated the earlier confirmation from the Department that Mr Zhang was no longer required to give evidence. It confirmed that the necessary notification under s 162(2) had been provided to the Department.
81 On 24 April 2008, Ms Harmer, acting as a delegate of the Attorney, cancelled Mr Zhang’s criminal justice stay certificate, with effect from 28 April 2008. The Department was notified of the cancellation of that certificate on the same day.
82 The effect of the cancellation of the criminal justice stay certificate was that Mr Zhang’s criminal justice stay visa was cancelled by operation of law under s 164 of the Act. The Minister was required by that section to make a record of the cancellation. It is not clear from the evidence on what date the record was made.
THE DECISION OF THE FEDERAL MAGISTRATE
83 In the proceeding before the Federal Magistrate, the Attorney accepted that his Honour was obliged to follow the obiter opinion expressed by Merkel J in Wasfi v The Commonwealth (1988) 83 FCR 16 that the Attorney was bound to comply with the rules of natural justice when making his decision under s 162(1) to cancel the certificate. However, the Attorney reserved his position in the event of an appeal: Zhang No 2 at [14].
84 The Attorney also conceded before the Federal Magistrate that Mr Zhang was not afforded a hearing by the delegate before she made her decision to cancel the certificate: Zhang No 2 at [15].
85 The opinion expressed by Merkel J in Wasfi provided the foundation for the orders made by the Federal Magistrate.
86 In Wasfi, Merkel J said at 22 that a decision to cancel a certificate under s 162(1) is not a discretionary decision. He said that, in some cases, the question of whether a person’s presence is no longer required might involve a judgment based on evaluation and the weighing up of the facts and circumstances which informed the issue of a certificate under ss 145, 146, 147 and 148.
87 At 26–27, Merkel J also said that the decision of the Attorney to cancel the criminal justice certificate had the effect of changing Mr Wasfi’s legal status from a lawful non-citizen not subject to detention, to an unlawful non-citizen who was required to be detained until his deportation or removal from Australia. His Honour continued (at 27):
Plainly the power conferred on the Attorney-General under s 162(1) to cancel a Criminal Justice Certificate is one which may destroy, defeat or prejudice a person’s legal status. Accordingly, unless there is an exclusion of the rules of natural justice, the Attorney-General was bound to comply with those rules when exercising the cancellation power under s 162(1).
88 Merkel J considered that, consistently with Annetts v McCann (1990) 170 CLR 596, there were no plain words of necessary intendment which excluded the application of the rules of natural justice. He considered that there may be limited matters which a person “whose rights or interests” might be prejudiced by the exercise of the power, might legitimately wish to put forward so that it would not be futile to afford the person an opportunity to be heard (at 27–28).
89 The Federal Magistrate referred at some length to the decision in Wasfi in Zhang at [17]–[19]. In Zhang No 2, the Federal Magistrate proceeded, as we have said, upon the concession that the view expressed by Merkel J was correct. The gravamen of the Attorney’s case before the Federal Magistrate was that relief should be refused because the Attorney’s decision to cancel the certificate was required in any event: Zhang No 2 at [17].
90 In rejecting the Attorney’s submission, the Federal Magistrate took the view that the same breadth of considerations which may inform a decision under s 147 to issue a certificate could inform a decision under s 162 about whether the person’s presence is no longer required: Zhang No 2 at [29].
91 The Federal Magistrate went on to say at [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.
92 He also said at [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.
93 His Honour gave, as an example of the submissions which Mr Zhang might have put, the suggestion that Mr Zhang may have pointed to reasons why the prosecutor had wrongly assessed his benefit to a potential prosecution of the migration agent which had not yet been concluded (at [37]).
94 A further reason upon which the Federal Magistrate appears to have grounded his orders was that the statutory conditions for the exercise of the power of cancellation were not satisfied. His Honour observed at [28] that the identification of the Attorney as a 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”.
95 His Honour continued by pointing to the context in which the exercise of the power to issue a certificate arises, namely the references in s 147(b) to statutes which bear upon Australia’s national and international criminal enforcement measures. He said at [28]:
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.
PROCEDURAL FAIRNESS
96 In our view, it is plain from the language of Div 4 of Pt 2 of the Act, and from its subject matter, scope and content, that the rules of natural justice do not apply to the exercise of the power to cancel a criminal justice certificate under s 162(1) of the Act.
97 The entire focus and object of Div 4 is to facilitate the administration of criminal justice by securing the temporary presence in Australia of persons who would not otherwise be permitted to enter or remain in Australia.
98 As French J said in Goldie v Commonwealth of Australia [2002] FCA 261 at [36], the provisions of Div 4 which deal with the grant of a criminal justice certificate are enacted in the public interest in the administration of criminal justice. His Honour observed that they are:
on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen.
99 It is also apparent from the observations of French J about the criminal justice stay visa process, that the rules of natural justice are excluded at every stage of the decision-making process under Div 4. His Honour said at [44]:
It is immediately apparent from the arrangement of the sections of the Migration Act relating to criminal justice stay visas that they do not attract the procedural requirements relating to visas generally. In particular, there is no provision for a person to apply for the grant of such a visa.
100 Similarly, there is no provision for a person whose presence is required in Australia to apply for the grant of a criminal justice certificate.
101 The observations of French J in Goldie at [36] were followed by Gray J in Andreola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 345 at [23] and by Lindgren J in Lee v Minister for Immigration and Citizenship (2008) 171 FCR 38 at [15].
102 Lindgren J also observed at [9] that the references to investigation, prosecution and punishment in the definition of the “administration of criminal justice” in s 142 make it clear that the relevant perspective is that of the administrators of the criminal justice system.
103 It follows from Lindgren J’s remarks that the relevant perspective for the exercise of the power to issue or cancel a criminal justice certificate is that of the administrators of the system, not that of the person whose interests may in a broad sense be thought to be affected by the decision: see Lindgren J at [9] and [20].
104 In our view, the observations of French J in Goldie and Lindgren J in Lee are plainly correct and we adopt them. In Lindgren J’s words at [20], the perspective that permeates Div 4 is that of the administrators of the criminal justice system.
105 With respect to the remarks of Merkel J in Wasfi, we disagree with his Honour’s conclusion that the rules of natural justice are not excluded by Div 4. The whole tenor of the Division is to repose the decision making process in the relevant decision maker in the interests of the administration of criminal justice. The person affected by the grant of a certificate or its cancellation has no personal interest in it and no right to be heard.
106 Even if, contrary to the views we have expressed, there is to be found an obligation of procedural fairness, it could have no content. The scheme laid down in Div 4 is inconsistent with any right, entitlement or interest of a person such as Mr Zhang to be involved in the consideration of the question of whether he could or should give evidence in the relevant proceeding.
107 It is true as was pointed out by counsel for Mr Zhang that those conducting criminal prosecutions have a heavy duty of disclosure, and a duty to call all available witnesses whose evidence is necessary to give a complete account of events on which the prosecution is based: see, eg Whitehorn v The Queen (1983) 152 CLR 657 at 674 per Dawson J.
108 But the duty of fairness in a criminal prosecution rests with the prosecutor. It would be contrary to the precepts of the administration of criminal justice to permit a potential witness a right to be heard on the question of whether he or she may assist.
109 The content of any obligation of procedural fairness would be reduced to “nothingness” to avoid frustrating the purpose for which the power was conferred: Kioa v West at 615 per Brennan J; see also Leghaei v Director-General of Security (2007) 97 ALD 516 at [45].
110 The Federal Magistrate erred when he held that the delegate of the Attorney in the present case was bound to accord procedural fairness to Mr Zhang before cancelling the criminal justice stay certificate issued to him on 18 June 2004.
WAS THERE A BASIS FOR CANCELLATION?
111 At [31] of Zhang No 2, the Federal Magistrate held that the Attorney had the power to consider the investigation upon which the certificate had been granted, to obtain information about that investigation and to call for and require a satisfactory explanation as to the reasons why it would be appropriate to cancel the certificate. His Honour went on to hold that he did not need to address the second ground of invalidity in respect of the delegate’s decision to cancel the relevant certificate because the denial of procedural fairness to Mr Zhang was a sufficient basis for the relief which he granted (at [41]).
112 The second ground of challenge was that the evidence before the delegate, in law, was not a sufficient foundation for the making of the decision to cancel the certificate, with the consequence that the cancellation decision was not authorised by the Act and thus wholly invalid. This ground was pursued on appeal by way of a Notice of Contention.
113 Senior Counsel for Mr Zhang submitted that, for a criminal justice stay certificate to issue in the first place, the Attorney-General must form each of the opinions referred to in s 147(b) and s 147(c), and then exercise his discretion to issue a certificate. Counsel then submitted that, whilst the language of s 162(1) does not mirror the language of s 147, it is necessary to give meaning to the words:
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 …
114 The proposition was that the words extracted at [113] above, in substance, picked up the same factors which were required to be considered by the Attorney under s 147 when deciding whether to issue a certificate. It was then submitted that, in the present case, in order to justify cancellation, more should have been said and proven than the very brief assertion made by the Department to the effect that Mr Zhang was no longer required.
115 There is an important difference between the language of s 147 and that which is used in s 162. The use of the word “considers” in each of sub-pars (b) and (c) of s 147 requires the Attorney to reach a level of satisfaction about the specified matters. These preconditions are framed by reference to the Attorney’s state of mind.
116 The word “considers” does not appear in s 162(1). The language of the sub-section is directed to a fact—whether the person’s presence is no longer required. If that fact is established, the Attorney is to cancel the certificate. No discretion is involved at that point. The language of the sub-section is not directed to the Attorney being satisfied of the correctness of the asserted fact.
117 It is true that the fact to which attention is to be given under s 162(1) includes the notion that the presence of the person is no longer required for the purposes for which the certificate was given. But, whilst those words are obviously included in order to direct attention to the purposes for which the certificate was issued in the first place, they do not impose upon the Attorney an obligation in every case to go behind every request for cancellation in order to verify the truth of the assertions made by the requesting authority.
118 It may be appropriate in some cases for the Attorney to make further enquiries and to seek additional information, but he will not be bound to do so in every case. Whether the necessary fact is established is a matter for the Attorney to determine. The means by which it is established may vary from case to case.
119 In the present case, one matter to be taken into account is the fact that the 2004 request for the certificate was itself cryptic and somewhat uninformative. If the Attorney was persuaded in 2004 to issue the certificate in respect of Mr Zhang upon the basis of scant material, why should he not also cancel the certificate on similarly brief material? In the end, if the requisite fact is established, the Attorney must act to cancel the certificate.
120 In the present case, the delegate of the Attorney accepted the truth of the assertion made by the officer of the Department that Mr Zhang was “now” no longer required to give evidence in the matter for which the criminal justice stay certificate had been issued. Although not stated in that communication, the fact was that, by mid-April 2008, the Director of Public Prosecutions had decided not to call Mr Zhang as a witness in any prosecution of his former migration agent. It was, therefore, the Director of Public Prosecutions, and not the Minister or an officer of the Department, who had made the decision that Mr Zhang was no longer required for the purposes for which the June 2004 criminal justice stay certificate had been issued.
121 It was open to the delegate to accept the truth of the assertion made by the officer of the Department in his email of 14 April 2008. It so happened that the assertion was, in fact, true. Therefore, the delegate acted upon the basis of the actual state of affairs at the time cancellation was effected. There was sufficient foundation for the cancellation decision. The point raised by the Notice of Contention fails.
DISCRETIONARY REFUSAL OF RELIEF
122 Given our decisions in respect of the first two issues, this point does not arise.
CONCLUSIONS
123 The Minister and the Attorney have succeeded in the appeal. They are entitled to their costs of the appeal and to their costs of the proceedings before the Federal Magistrate. We will make orders accordingly.

I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Jacobson and Foster.

Associate:

Dated: 24 September 2009

Counsel for the Appellants: Mr S. Lloyd SC with Ms A. Mitchelmore

Solicitor for the Appellants: Australian Government Solicitor

Counsel for the Respondent: Mr N. Williams SC with Mr N. Poynder

Solicitor for the Respondent: Legal Aid Commission of NSW

Date of Hearing: 24 August 2009

Date of Judgment: 24 September 2009

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) rr 1.41(1), 1.44(1), Sch 2, sub-cll 572.223(1), 572.223(2)(a)(i), Sch 5A, Items 5A404(a), 5A404(b)

Kamal v Minister for Immigration and Citizenship [2009] FMCA 238; affirmed

Rana v Minister for Immigration and Citizenship [2009] FMCA 553; referred to

MINISTER FOR IMMIGRATION AND CITIZENSHIP v MOHAMMAD ANOWER KAMAL and MIGRATION REVIEW TRIBUNAL

NSD 299 of 2009

FINN, EMMETT & EDMONDS JJ

21 AUGUST 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the First Respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1                          This appeal concerns the construction of the phrase “[a test] taken less than two years before the date of the application” in Item 5A404(a) in Schedule 5A to the Migration Regulations 1994 (Cth) (the Regulations).  The question is whether the language of that Item refers only to a test taken before the date of the application or whether it also includes a test taken after the date of the application.

2                          On 23 August 2007, the first respondent, Mohammad Anowar Kamal (Mr Kamal), applied for a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth).  It is common ground that the only subclass of Class TU visa in respect of which Mr Kamal would have been eligible was subclass 572 – Vocational Education and Training Sector visa (572 Visa).  On 4 October 2007, a delegate of the appellant, the Minister for Immigration and Citizenship (the Minister), refused to grant a 572 Visa to Mr Kamal.  Mr Kamal then applied to the second respondent, the Migration Review Tribunal (the Tribunal), for review of the delegate’s decision. On 31 July 2008, the Tribunal affirmed the decision not to grant Mr Kamal a 572 Visa.

3                          Mr Kamal then commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 20 March 2009, the Federal Magistrates Court quashed the Tribunal’s decision and ordered the Tribunal to determine its review of the delegate’s decision according to law.  By notice of appeal filed on 9 April 2009, the Minister appeals from the orders of the Federal Magistrates Court.  The Chief Justice has directed that the appeal be heard by a Full Court consisting of three judges.

RELEVANT STATUTORY PROVISIONS

4                          Division 1.8 of the Regulations, which consists of regs 1.40 to 1.44, contains special provisions for student visas.  Regulation 1.41(1) provides that the Minister must specify, in relation to each subclass of student visa, an assessment level to which an applicant for a student visa will be subject.  Under Regulation 1.44(1), an applicant for a student visa must give evidence about the applicant’s English language proficiency in accordance with the requirements set out in Schedule 5A for the relevant subclass of visa and the assessment level to which the applicant is subject.

5                          The criteria for a 572 Visa are set out in Part 572 of Schedule 2 to the Regulations.  Relevantly, an applicant must, as at the date of the decision, satisfy the criteria specified in clause 572.223.  Subclause 572.223(1) relevantly provides that the decision maker must be satisfied that the applicant meets the requirements of subclause 572.223(2).  One of those requirements, contained in paragraph 572.223(2)(a)(i), is that the applicant gives to the Minister evidence in relation to the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake.  The evidence is to be given in accordance with the requirements mentioned in Schedule 5A.

6                          The relevant part of Schedule 5A is Item 5A404.  Item 5A404 contemplates several possibilities.  One possibility is that contained in Item 5A404(a), which provides, relevantly, that an applicant must give evidence:

• that the applicant will not undertake an ELICOS before commencing his or her principal course, and
• that the applicant achieved, in an IELTS test that was taken less than two years before the date of the application, an Overall Band Score of at least 5.5.

Another possibility is contained in Item 5A404(b), which provides, relevantly, that an applicant must give evidence that:

• the applicant will undertake an ELICOS of a specified duration before commencing his or her principal course, and
• the applicant achieved, in an IELTS test that was taken less than two years before the date of the application, an Overall Band Score of 5.0.

An ELICOS is an English language intensive course for overseas students that is a registered course.  An IELTS test is the International English Language Testing System test.

7                          Thus, the scheme of Item 5A404 entails that by the time of the decision, an applicant may or may not have achieved an appropriate level of proficiency in English, as evidenced by the result of an IELTS test.  If the applicant has not achieved the relevant level of proficiency, he or she will undertake an ELICOS.  However, if the applicant has achieved the relevant level of proficiency, he or she will not need to undertake further tuition, such as an ELICOS.  There are other possibilities depending upon the level of proficiency that has been achieved by the applicant.

THE ISSUE

8                          Mr Kamal gave evidence to the Tribunal that he does not intend to take an ELICOS before commencement of his principal course.  He also gave evidence to the Tribunal that, on 8 December 2007, he achieved, in an IELTS test, an Overall Band Score of 5.5.  The question is whether that test was a test that was taken less than two years before the date of Mr Kamal’s application for a 572 Visa.  As already indicated, the date on which Mr Kamal applied for a 572 Visa was 23 August 2007.

9                          The Tribunal concluded that, in that circumstance, the IELTS test taken on 8 December 2007 was not a test that was taken less than two years before the date of Mr Kamal’s application and the requirement of Item 5A404(a) was not satisfied.  The Tribunal considered that Item 5A404 required a test to have been taken in the period commencing two years before the date of the application and ending on the date of the application.

10                       The primary judge in the Federal Magistrates Court took a different view as to the meaning of Item 5A404(a) and concluded, as a consequence, that the Tribunal’s decision was infected by jurisdictional error.  The Minister accepts that, if the Tribunal misconstrued Item 5A404 in the way found by the Federal Magistrates Court, the decision of the Tribunal was infected by jurisdictional error and Constitutional writ relief should be ordered.  The Federal Magistrates Court ordered that:

• A writ of Certiorari issue directed to the Tribunal quashing the decision of the Tribunal.
• A writ of Mandamus issue directed to the Tribunal requiring the Tribunal to determine Mr Kamal’s application for review according to law.
• The Minister pay Mr Kamal’s costs.

11                       The only question before the Full Court is whether the construction of Item 5A404(a) adopted by the primary judge in the Federal Magistrates Court is correct.  No point has been taken concerning the form of the order and, in particular, as to whether a writ of Certiorari has the effect of quashing a decision.

DISPOSITION OF THE APPEAL

12                       The appeal has been conducted on the basis that one of two constructions of the relevant language of Item 5A404 is correct.  The Minister contends that the relevant phrase means:

• an IELTS test that was taken within the period of two years before the date of the application.

The primary judge in the Federal Magistrates Court accepted Mr Kamal’s contention that the relevant language means:

• an IELTS test that was taken no earlier than two years before the date of the application.

13                       The Minister contends that the relevant language of Item 5A404(a)(ii) is a composite phrase the natural meaning of which is to set a time period with both a start date, being the date two years before the date of the application, and an end date, being the date of the application.  The Minister says that the natural meaning of the word “before” is “prior in time to” and that the relevant phrase cannot embrace less than two years before the date of the application as well after the date of the application.

14                       The Minister points to what he characterises as good reasons of administrative efficiency for requiring an applicant to have achieved the relevant test result prior to making an application for a visa.  He contends that satisfying the language proficiency criteria is, in the context of a student visa application, part of a two step process.  The first part is the identification of the level of proficiency that an applicant has.  The second part is the provision of evidence that tuition will be put in place to remedy a relevant lack of English language proficiency by undertaking an ELICOS (see Rana v Minister for Immigration and Citizenship [2009] FMCA 553 at [36]).  The Minister says that ensuring that an applicant has undertaken an IELTS test before submitting a visa application aids the efficiency of the decision making process by enabling the second step, whether to undertake an ELICOS, to be taken once the IELTS result is known.

15                       To the extent that there is any ambiguity in the relevant language, the Minister points to the Explanatory Statement published in connection with Migration Amendment Regulations 2001 (No. 5) 2001 No 162 (Cth), pursuant to which the language in question was inserted in Schedule 5A.  The Explanatory Statement stated, inter alia, that the changes effected by the amending regulation codify, in Schedule 5A, evidentiary requirements that must be met by an applicant seeking to satisfy primary criteria for the relevant student visa subclasses, including criteria dealing with English proficiency.  The Explanatory Statement said that the IELTS test is designed to assess the language ability of candidates who need to study or work where English is used as the language of communication.  It stated that the IELTS test is readily available at centres around the world, including Australia, that arrange test administration according to local demand.  Most significantly, the Explanatory Statement then said:

Under the new student regime, potential students sit the test to gauge their English proficiency before applying for a student visa.  [emphasis added]

The Minister contends that, to the extent that there is ambiguity in the meaning of Item 5A404(a)(ii), the Explanatory Memorandum may be called in aid to resolve that ambiguity in favour of the construction contended for by the Minister.

16                       The Minister says that, if an applicant has not undertaken an IELTS test before lodging a visa application, the decision making process could be unduly delayed or frustrated.  Item 5A404 provides no requirement that an applicant is required to undertake the test by any particular date.  Accordingly, the Minister says, there would be a possibility that an applicant could delay taking the test and thus delay the making of a decision on the visa application.  On the other hand, the Minister says, if an applicant has sat for the IELTS test before lodging the application, it is only a matter of obtaining the result and giving evidence of the result to the decision maker.  However, there is nothing to suggest that such a rationale was in fact in the mind of the drafter of the relevant provisions in Schedule 5A.

17                       There is no indication in Item 5A404 that the possibility that an applicant might request a deferment of the decision while the applicant takes the relevant test should be the basis for the arbitrary exclusion of a test that happens to be the most recent and therefore the most current indication of the applicant’s proficiency.  The Minister accepts that the evidence of a result does not have to be given before the application is made, so long as it has been given prior to the decision.  An applicant could equally request some deferment of a decision while the evidence of a test result is obtained.

18                       Clearly, the question that is raised by this proceeding could have been avoided by the use of different language one way or another.  The Regulations contain various formulations of time periods that might have been employed in the drafting of Item 5A404 to avoid any possible ambiguity as to the meaning of the words in question.  For example, the Regulations contain the following formulations in various provisions:

The applicant has been employed in a skilled occupation for a period of… at least six months in the period of 12 months immediately before the day on which the application was made.

The applicant has, in the six months immediately before the day on which the application was made, completed a degree, diploma or trade qualification… for award by an Australian educational institution.

The applicant has been employed in a skilled occupation… for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.

However, the complexity of the Regulations and the various occasions upon which they have been amended suggests that comparison of the language of Item 5A404 with the language of other provisions in the Regulations is likely to be of little assistance.

19                       The language of Item 5A404(a)(ii) is directed to the recency or currency of a test result.  The intent is to ensure that the test is sufficiently recent and current for the decision maker to be satisfied that it is a reliable indication of the proficiency of the applicant.  As a matter of logic and syntax, the words in question are clearly capable of being interpreted as meaning that the test must have been taken no earlier than two years before the date of the application.  The question of construction does not so much turn on the word “before” as on the phrase “less than two years before”, which means a test taken less than two years before.  While the question of construction is not without doubt, the construction contended for by Mr Kamal is to be preferred.

20                       That is the conclusion reached by the primary judge in the Federal Magistrates Court.  It follows that his Honour made no error in concluding as he did.  In the circumstances, the appeal should be dismissed with costs.

Associate:

Dated:        21 August 2009

Al Magableh v Minister for Immigration & Anor [2009] FMCA 230
Bhatt v Minister for Immigration & Anor [2009] FMCA 219
Bhattarai v Minister for Immigration & Anor [2008] FMCA 1709
Liu v Minister for Immigration & Anor (2008) 218 FLR 150
Li v Minister for Immigration & Anor (2008) 219 FLR 59
Fan Fan v Minister for Immigration & Anor [2009] FMCA 123
Kim v Minister for Immigration & Citizenship [2009] FCA 161
Kim v Minister for Immigration & Anor [2008] FMCA 1577
Ruykys v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 538
Shah v Minister for Immigration & Anor [2009] FMCA 108
Shi v Migration Agents Registration Authority (2008) 248 ALR 390, [2008] HCA 31
Shibly v Minister for Immigration & Anor [2009] FMCA 193
Applicant: MOHAMMAD ANOWER KAMAL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2869 of 2008

Judgment of: Smith FM

Hearing date: 20 March 2009

Delivered at: Sydney

Delivered on: 20 March 2009
REPRESENTATION
Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore
ORDERS
(1) A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 15 August 2008 in matter 071790742. 
(2) A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 4 October 2007. 
(3) The first respondent pay the applicant’s costs in the sum of $5,000. 
 
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY
SYG 2869 of 2008
MOHAMMAD ANOWER KAMAL
Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT
(revised from transcript)
1. The granting of relief in this matter turns upon the construction of the visa criterion in Sch.5A cl.5A404(a)(ii) of the Migration Regulations 1994 (Cth), in its application to Sch.2 cl.572.223(2)(a)(i)(A).  It is a time of decision criterion, which could be satisfied by Mr Kamal in his application for a subclass 572 ‘vocational education and training sector’ student visa, if he could “give evidence” that he “achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5”.  Regulation 1.03 defines an IELTS test as “the International English Language Testing System test”. 
2. The construction issue which has divided opinion in the Migration Review Tribunal, and in this Court, is whether the criterion only identifies the earliest date after which a sufficient IELTS test must be taken before a decision is made on the visa application, or whether it defines a closed period of two years before the visa application within which a test must have been taken.  On the former construction, a visa applicant can still sit and pass the test while his or her application is waiting determination by the Minister or, on review, by the Tribunal. 
3. The two constructions can have a real impact on applicants for the visa to which this criterion applies, since many of them, if not most of them, are students who have already started studying in Australia, and are hoping to continue studies with the objective of qualifying for a residence visa under Australia’s onshore skilled migration program.  As several cases illustrate, some students may not appreciate that the English language studies they have successfully completed in Australia may not provide a sufficient qualification which is alternative to sitting the IELTS test.  Other students might have good reasons for being allowed a second opportunity to take the IELTS test, before their matter is decided. 
4. I gave a judgment in Bhattarai v Minister for Immigration & Anor [2008] FMCA 1709 on 10 December 2008 which identified ambiguity as to which of these constructions applied, and accepted a submission by the Minister’s representative that the more beneficial construction applied (see [9]).  This did not help Mr Bhattarai in that case, since he did not attain a sufficient score in the IELTS test which he was permitted to attempt while the matter was pending before the Tribunal. 
5. Recently, Scarlett FM has given the point his consideration in a series of cases, in which the Minister took a different position (see Shah v Minister for Immigration & Anor [2009] FMCA 108, Fan Fan v Minister for Immigration & Anor [2009] FMCA 123, Shibly v Minister for Immigration & Anor [2009] FMCA 193, Al Magableh v Minister for Immigration & Anor [2009] FMCA 230, and Bhatt v Minister for Immigration & Anor [2009] FMCA 219).  His Honour was of opinion that the criterion discloses no ambiguity, but carries the more draconic construction, which precludes an applicant from satisfying the criterion by sitting for a test after making their visa application and before it is decided. 
6. His Honour’s reasons were the subject of extensive submissions on behalf of the Minister and the applicant in the present matter.  I regret that I have arrived at a firm opinion contrary to that of Scarlett FM, and have not been persuaded to depart from my earlier opinion on the basis that it was clearly wrong.  I therefore propose to follow my own previous opinion in the present case. 
7. At the start of today’s hearing, I raised with the parties the awkwardness arising when a difference of opinion on a matter of statutory construction emerges in this Court.  I invited submissions whether the present application should be transferred to the Federal Court, to be considered in the context of appeals which are pending from Scarlett FM’s judgments.  However, neither party requested such a transfer.  In circumstances where full written and oral arguments have been presented to me today, and where I have formed a clear opinion, I consider that it would be preferable for me to deliver my judgment in the matter. 
The background to the case 
8. Mr Kamal came to Australia from Bangladesh, and studied here in at least one course which gave him a qualification in English.  He studied between 1 May 2006 and 7 July 2006 at the IIBIT Academy of English, and on 28 September 2007 was given a document which certified that he “has completed the English for Academic Purposes Certificate (EAP) at Advanced level.  The exit level for the EAP Advanced Certificate is registered at IELTS 6.5 on the CRICOS register”. 
9. Relying upon this qualification, Mr Kamal applied for a further student visa under subclass 572, to allow him to complete a diploma of hospitality (management).  His application was lodged on 23 August 2007, but was refused by a delegate on 4 October 2007. 
10. The delegate’s reason was given that: 
You did not satisfy Regulation 572.223(2)(a)(i)(A) for the following reasons: 
The applicant has been unable to provide evidence that their English language proficiency meets the requirement of the legislation, as required under schedule 5A404, for the assessment level to which he is subject. 
11. This was not explained to Mr Kamal in the delegate’s letter, in particular, by explaining what was insufficient about his IIBIT qualification.  The letter attached the Sch.5A requirements in relation to English proficiency for an assessment level 4 visa applicant.  They contain a long list of alternative qualifications for establishing a proficiency in English language, of which one is the presently relevant criterion of an IELTS test result of 5.5.  I extracted the list in full in Bhattarai (supra), and explained how many of the alternative qualifications are described in language which is obscure, even to a lawyer.  Unfortunately, as in the case of Mr Bhattarai, Mr Kamal’s qualification in English was not one of the qualifications listed, and this is now conceded by his representatives. 
12. Mr Kamal appears to have discovered this after appealing to the Tribunal.  He then attempted an IELTS test on 8 December 2007, and achieved a 5.5 overall band score.  Evidence of this outcome was presented to the Tribunal before it made a decision on the review. 
13. In a decision handed down on 15 August 2008, the Tribunal held that this was not evidence of a test falling within cl.5A404(a)(ii), because it was not taken within the period of two years before the date of the visa application.  It therefore affirmed the delegate’s decision. 
14. Mr Kamal now seeks judicial review of that decision.  It is common ground that if the Tribunal adopted an erroneous construction of the criterion, then its decision was affected by jurisdictional error, the decision should be set aside, and the matter should be remitted to the Tribunal for further consideration. 
The legislative context 
15. The criteria set out in Sch.5A Part 4 are brought into operation through the criteria for a subclass 572 vocational education and training sector visa, set out in Sch.2 of the Migration Regulations.  They do not apply in relation to any other subclass of student visa, but similar provisions are contained in other Parts of Sch.5A in relation to other subclasses. 
16. As with the usual pattern of criteria for visas, there are criteria elsewhere in the Regulations in relation to the making of a valid visa application.  It is common ground that these do not contain any requirement as to the provision of evidence as to English language proficiency which must accompany the visa application. 
17. Moreover, the Sch.2 criteria “to be satisfied at time of application” found in cl.572.21, also do not contain any criteria requiring evidence of English language proficiency to be given with or after the visa application, showing English language proficiency as at the time of visa application.  The ‘time of application’ criteria only define various categories of current or previous visas which need to have been held at that time, before a decision to grant this onshore student visa can be made. 
18. On my rough analysis of the prescribed categories of existing visa holders who have access to a subclass 572 visa, most people who would normally seek and qualify for this visa are probably people who have already held student visas in Australia.  Certainly, this group of students is centrally within the focus of the visa criteria.  The group of visa holders eligible for a subclass 572 visa under cl.572.21 is then subdivided, for the purposes of several time of decision criteria, by reference to ‘assessment levels’ prescribed by the Minister.  The Minister’s notice and the regulations attribute an assessment level 1 to 5 to every visa applicant, depending only upon the country whose passport they hold.  Some visa criteria then apply requirements about language proficiency, financial support, and other matters, which can vary very significantly, depending upon the applicant’s assessment level.  Other criteria exclude altogether from eligibility some applicants who are not assessment level 1. 
19. I recently attempted to analyse the assessment level scheme, in an effort to discern the policy background to the distinctions made between different applicants depending upon their assessment levels, i.e. their country of origin (see Kim v Minister for Immigration & Anor [2008] FMCA 1577).  My analysis of that background was not disapproved on appeal by Buchanan J (see Kim v Minister for Immigration & Citizenship [2009] FCA 161).  I was unable usefully to discern the underlying policy distinctions from the language or structure of the migration regulations, nor from the extrinsic material, so as to give a focused content to a power of exemption from the exclusion of some assessment level 2, 3, 4 and 5 applicants under cl.573.227, which is identical to a criterion also applicable to subclass 572 visa applicants.  I concluded that the draftsman would not have intended that the language of these criteria should be construed by reference to underlying policies explaining the different requirements placed on visa applicants based on their assessment level.  Decision makers, and a court on judicial review, are left with the language of the regulations and the surrounding legislative context, when endeavouring to find their intended meaning. 
20. Relevant to the present case, the assessment level of a subclass 572 visa applicant controls the evidence required to be presented as to English language proficiency, financial capacity, and ‘other requirements’, through the provisions of criterion 572.223.  Its heading categorises it as one of the “criteria to be satisfied at time of decision”.  It provides: 
572.223  
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2). 
(2) An applicant meets the requirements of this subclause if: 
(a) for an applicant who is not a person designated under regulation 2.07AO: 
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to: 
(A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and
(B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and
(C) other requirements under Schedule 5A; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: 
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; or
(b) for an applicant who is a person designated under regulation 2.07AO — the Minister is satisfied that: 
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant: 
(A) has access to sufficient funds of the person’s own or provided by a relative; or
(B) is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force; and
(ii) the applicant’s proficiency in English is appropriate to the proposed course of study; and
(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to: 
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter. 
21. It should be noted that, although all these criteria are generally described in sub cl.572.223(1) as addressing whether an applicant is “a genuine applicant for entry and stay as a student”, the English language proficiency tests are supplemental to the separate general requirements in sub paragraphs (2)(a)(ii) and (b)(iii), that the Minister is satisfied that the applicant is “a genuine applicant for entry and stay as a student”, having regard to any relevant matter. 
22. The group of applicants potentially covered by par.(2)(b) is narrowly defined, and is not relevant to most visa applicants for a subclass 572 visa, including Mr Kamal, who must come within par.(2)(a).  It may, however, be noted that there is nothing in the language of the English proficiency requirement for these people in cl.572.223(2)(b)(ii), which suggests that it cannot be satisfied by evidence of proficiency shown in tests taken after the time of visa application and before the time of decision. 
23. Furthermore, this can also be said clearly in relation to some of the applicants under par.(2)(a) who must satisfy the English proficiency requirements of Sch.5A Part 4.  This part sets up different tests, or sets of tests, for applicants at each of the five assessment levels.  Assessment level 2 and 1 applicants are required to “give evidence that he or she has a level of English language proficiency that satisfies his or her proposed education provider” (see cll.5A412, and 5A410).  I can find no implication that this criterion precludes presenting evidence of proficiency which was acquired between date of visa application and date of decision, whether at first instance or on review. 
24. The present controversy arises from a temporal reference in the sole assessment level 5 English proficiency qualification, which is also in some, but not all, of the alternative qualifications for assessment levels 4 and 3 applicants.  All assessment level 5 applicants must give evidence of achieving a score of 7 in an IELTS test “taken less than 2 years before the date of the application” (see cl.5A401).  One way in which assessment level 4 and 3 applicants can establish sufficient English proficiency, is to satisfy the presently relevant criterion of achieving a score of 5.5 in such a test (see cll.5A404(a)(ii), and 5A407(a)(ii)).  This is the qualification which Mr Kamal attempted to demonstrate. 
25. Other alternative qualifications are provided for level 4 and 3 applicants.  Some of them do not use any temporal indicators as to when the described English qualification must have been achieved.  Others do contain references to “less than 2 years before the date of application”.  For example, applicants at these levels who have successfully completed their Senior Secondary studies in Australia are deemed to have English proficiency if there is evidence that this occurred “less than 2 years before the date of the application” (see cll.5A404(d), and 5A407(d), which were considered by me in Liu v Minister for Immigration & Anor (2008) 218 FLR 150, and by Barnes FM in Li v Minister for Immigration & Anor (2008) 219 FLR 59).  It is difficult to see why that criterion should be construed not to allow reliance upon senior secondary studies completed between the date of visa application and prior to the date of decision. 
Construction of cl.5A404(a)(ii) 
26. The language of the criterion relied upon by Mr Kamal must be addressed in its own terms, and in the legislative context sketched above.  As I have indicated, it is listed as the first of the alternatives for English language proficiency for assessment level 4 applicants.  It provides: 
5A404 English language proficiency 
The applicant must give evidence that one of the following applies: 
(a) the applicant: 
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5; … 
27. The words of subparagraph (ii) clearly are intended to raise a temporal requirement as to the date when a sufficient IELTS test is undertaken.  The temporal requirement is identified by reference to “the date of the application”, and I accept that this should be read as a reference to the date of the visa application.  However, there is ambiguity whether it refers to the application date only to specify a ‘not earlier than’ date for the IELTS test, or to delimit both a ‘not earlier than’ date and also a ‘not later than’ date.  If it is doing the latter, the language might appear to be elliptic. 
28. Even if it is not elliptic, it is ambiguous in its use of the term “less than 2 years before the date …”, where a date is identified which also necessarily occurs before the date at which the criterion will be applied, i.e. the date of decision.  The two constructions which, in my opinion, arise from the ambiguity in the language, would give it the meaning either: 
i) an IELTS test that was taken on a date which is not earlier than the date which is 2 years before the date of the (visa) application;  or: 
ii) an IELTS test that was taken on a date which was within the period of 2 years before the date of the (visa) application. 
29.  In my opinion, the language is capable of both meanings, and is ambiguous as to which of them is intended, if examined outside its legislative context and operation.  It is here that I respectfully differ from the opinion of Scarlett FM, that the criterion is unambiguous as a matter of language.  I therefore do not agree with his Honour’s reasoning which was based upon his Honour’s opinion as to the absence of any ambiguity. 
30. Counsel for the Minister maintained that there was no ambiguity in the criterion because the words: “test that was taken less than 2 years before the date of the application” adopted a colloquial reference to a period of time which would not extend indefinitely into the future.  It should therefore be understood as defining a closed two year period within which a test has to be taken.  However, the present debate does not contemplate a period extending indefinitely into the future, since the period within which a test must be taken will either terminate upon the date of the visa application or upon the date of decision.  There are two further basic problems with this submission.  The first is, as I have explained above, the colloquial or ordinary use of “less than” in a temporal sense, itself can carry ambiguity which has to be resolved by context.  The second is that I must discover meaning, not in an exchange of colloquial language, but in legislation, where meaning is controlled by context. 
31. Once the ordinary language is found to be ambiguous, then it is necessary to consider the statutory context in which it appears, how it operates within the legislative scheme, what the underlying policies are, what consequences flow from the two constructions, and what principles of construction should be invoked to assist its legal construction. 
32. Before considering that broader context, some aspects of the language of the particular criterion can be noted.  The choice of the words “less than 2 years before”, rather than unambiguous words of delimitation such as “within 2 years before”, tends, in my opinion, to suggest that the criterion is referring to one point of time calculated from the date of the visa application, rather than a period of time terminating at the date of the visa application.  It suggests that the concern is to define the most distant point of time after which the test must be taken, rather than a closed past period within which it must be taken. 
33. Moreover, to construe “less than” as indicating a closed past period of time, seems to require the implication of the further words “and not after”, so as to read the criterion as meaning “taken less than 2 years before the date of application and not after that date”.  I do not agree with Scarlett FM that this implication must necessarily follow from the reference to “2 years”, nor from the reference to the date of the visa application, nor from the word “before”.  Rather, in my opinion, the reference to an event occurring “before the date of the application”, is suggestive that a single earliest date is being identified and nothing more (compare Mansfield J in Ruykys v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 538 at [16]). 
34. However, these semantic indicators supporting the more beneficial construction are not clear.  It is better, in my opinion, to approach the ambiguity by reference to the immediate legislative context in which the criterion operates. 
35. As I have indicated, the criterion is categorised as a time of decision requirement.  It is not a requirement of a valid application, nor a requirement later to be found to have been satisfied at time of application.  It is therefore intended to be satisfied at the time of a decision, according to the evidence available to the decision maker at that time. 
36. This suggests, in my opinion, that the first construction is more likely to have been intended than the second.  First, because this context necessarily fixes the date of decision as the ‘end’ of a period for achieving the required test result, which period must commence “less than 2 years before the date of application”.  It is therefore not necessary to require those words to do more than fix the starting date for the period within which the English test must have been undertaken.  Secondly, as a time of decision criterion, and not a time of application criterion, the objective of the temporal reference would appear to be to fix a period for achieving satisfaction occurring before the later date, rather than the earlier date.  I therefore consider that the legislative context provides clear support for the more beneficial construction of cl.5A404(a)(ii). 
37. Looking beyond the immediate legislative context, reference was made in some of the previous decisions to different language used in relation to the undertaking of an IELTS or other language test found in other Parts of Sch.5A, relating to visas of different subclasses.  For example, an assessment level 4 applicant for a schools student visa can satisfy a proficiency test if they have undertaken a test “less than 2 years before the time of making the decision on the application”.  However, it is difficult to discern how this different phrasing can solve the issue of ambiguity in the present criterion.  Chronologically, it is obscure on the information currently before me, whether the other formulation appeared in amendments to the regulations before, or after, the amendments which introduced the presently relevant criterion.  In view of the complex nature of the Migration Regulations and the constant amendment of their provisions, it is dangerous to place too much weight in issues of construction upon slight differences in the wording of criteria applying to different subclasses of visas.  I am therefore not persuaded that linguistic differences with criteria applying to other subclasses of visas are of assistance in solving the issue of construction in this case. 
38. In terms of policy, it is difficult to see any policy objective which explains why the less beneficial construction would have been intended.  Prima facie, the only concern which is apparent is that any IELTS test result which is relied upon should have been achieved at a proximate time.  It is difficult to see why a visa applicant should be excluded from relying upon his or her most recent test results. 
39. The Minister’s submissions which were accepted by Scarlett FM attempted to locate considerations which might explain why a past closed period for satisfaction of this particular test might have been intended.  However, I am not persuaded by the considerations to which they refer. 
40. For example, reliance was placed upon a statement taken by the present Tribunal from the explanatory statement to the 2001 regulations which introduced the scheme of assessment level criteria for student visas.  This was: 
under the new students regime, potential students would sit the test to gauge their English proficiency before applying for a student visa. 
41.  I extracted other parts of this explanatory statement in my judgment in Kim.  However, as I indicated in that judgment, the explanatory statement left many aspects of the legislative scheme obscure.  It did not purport to be exclusive of other means of establishing English proficiency, and is problematic as a guide to construction of the present criterion if it is read in that way.  This is because, in fact, as I have indicated above, many of the English language proficiency qualifications found in Sch.5A Part 4 plainly do not require the gaining of the required qualification before, and not after, applying for a student visa.  This is the case, even within the alternative qualifications for assessment level 4 visa applicants.  The statement taken from the explanatory statement is therefore plainly inaccurate in the context of the current – and frequently amended – regulation, and provides weak assistance to the construction of the language actually found in the regulations. 
42. As in Kim, the other parts of the extrinsic material provide no assistance to this issue of construction, in particular to explain why it might be desirable to require some, but not all, visa applicants for subclass 572 visas to achieve a sufficient English language proficiency qualification before they apply for the visa, and not while it is under consideration by a delegate or by the Tribunal if this is possible. 
43. It was submitted to me, and was accepted by Scarlett FM, that there is a good policy reason for requiring students such as Mr Kamal to have sat an IELTS test before he applies for his new visa, and not while it is under consideration, arising from the structure of primary decision making and review under the Act.  Scarlett FM in Shibly said: 
53. One of the requirements is that the applicant must have the requisite degree of proficiency in the English language.  If the applicant’s proposition were to be accepted, an applicant could not only apply for a visa without providing evidence of having successfully completed an IELTS test, but could do so without having actually sat for such a test.  Clearly the application would be doomed to fail before the delegate. 
54. However, on the applicant’s construction of item 5A404, an applicant could then apply for review by the Migration Review Tribunal and subsequently apply to sit for an IELTS test.  This would have the result of making an application for review by the MRT a necessary part of the process.  An applicant who sits for the IELTS test before applying for the visa and produces evidence of having obtained a satisfactory Overall Band Score will be able to obtain a visa from the delegate and would not need to apply for review by the MRT at all. 
55. It is not in the public interest for every application for a student visa to be reviewed by the Migration Review Tribunal.  It would only lead to expense and delay. 
44. With respect, I am not persuaded by this reasoning.  Its premises in [53] are inaccurate, since the beneficial construction would allow a visa applicant to achieve a successful test result while the matter was pending before the delegate, and not just while it was before the Tribunal.  Moreover, as I have explained above, it overlooks that many visa applicants do not need an IELTS test result, but can rely upon actual or deemed English language qualifications gained and evidenced at any time before the visa application is decided. 
45. Importantly, in my opinion, the concern of “expense and delay” arising from visa applicants rectifying a gap in their cases for satisfying visa criteria while a matter is pending for decision at a review stage, is inconsistent with the statutory scheme of merits review under the Migration Act.  That scheme tends to support a construction of a time of decision criterion which will allow an applicant to establish a qualification at any time before decision at a review level, rather than the converse. 
46. The normal principle of construction of a decision making power which is subject to a merits review system such as operates under the Migration Act 1958 (Cth), is that time of decision criteria are intended to be satisfied at time of decision by a review agency, even if they are not satisfied as at an earlier time.  This is the implication, in particular, from the ‘stand in the shoes’ powers of the Migration Review Tribunal under s.349 of the Migration Act 1958 (Cth), as construed in the light of the long history of similar provisions modelled on s.43 of the Administrative Appeals Tribunal Act 1975 (Cth).  In this context, but subject to contrary intention shown in the particular power of decision, a merits review Tribunal such as the present Tribunal is usually intended to have the function of performing completely afresh a primary power of decision, including by addressing criteria at the date of the Tribunal’s decision and not as at the date of a primary decision.  The Tribunal does not have only the function of receiving fresh evidence concerning satisfaction of criteria at an earlier date of decision.  The structure of administrative decision making under Commonwealth legislation allows, and is intended to allow, the persons affected by administrative decisions to be able to satisfy criteria during the period of pendency of an administrative appeal.  This normal structure, and legislative intent, was recently confirmed by the High Court in Shi v Migration Agents Registration Authority (2008) 248 ALR 390, [2008] HCA 31, by Kirby J at [37], [40], [46], [54], Hayne and Heydon JJ at [99] and [101], and Kiefel J with whom Crennan J agreed at [143]. 
47. In view of the merits review scheme established under the Migration Act in relation to decisions of the present type, and with the underlying rationale for merits review explained by the High Court in Shi’s case, I can see no disturbance to good administration or public policy, by construing the present criterion so as to allow Mr Kamal to satisfy this particular test before the Tribunal has made its decision.  The Tribunal is under an obligation to complete a review by making a decision (see ss.348 and 349), and must follow procedures which are, inter alia, “quick” (see s.353).  It is not obliged to give people adjournments to allow them to procure evidence required to satisfy time of decision criteria, if it does not think this appropriate. 
48. However, there must be many cases such as the present, where a visa applicant might be under genuine misapprehension as to how they can satisfy English proficiency tests, and be totally bemused by the complexity of the provisions.  Mr Bhattarai’s case provides another example of this.  In my opinion, considerations of good public policy would suggest that a more benevolent interpretation of this criterion is more likely to be intended, than otherwise. 
49. Taking into account the above pointers from the language, and the statutory context of the criterion and the administrative process under the Migration Act, in my opinion, the more benevolent construction should be found to be correct.  This is in the absence of clear and unambiguous language which ties the hands of a delegate and the Tribunal, so that satisfaction of the criterion can only be achieved before the time of visa application.  I am therefore firmly of the opinion that the first meaning of this ambiguous criterion which I have identified above, is the correct construction, and that the present Tribunal erred in adopting a different construction. 
50. For the above reasons, I am persuaded that the construction of this provision which was adopted by the legal representative of the Minister when appearing before me in Bhattarai, and was accepted by me in that case, was the correct construction.  I have not been persuaded to prefer the alternative construction which has more recently attracted Scarlett FM.  I therefore propose to order the issue of writs of mandamus and certiorari in this case. 
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  2 April 2009