Was it reasonable to infer risk from an Interpol notice?

The Interpol Red Notice (IRN) included:

FUGITIVE WANTED FOR PROSECUTION

1.    IDENTITY PARTICULARS

[The applicant was identified]

2.    JUDICIAL INFORMATION

SUMMARY OF FACTS OF THE CASE: VIETNAM, Hanoi, from 01 January 2005 to 28 July 2010: While being the financial Director of Vinashin Corporation, [the applicant] had activities violating the State’s regulation on economic management. It caused serious consequence to his Corporation (State Company). After committing crime, he fled away. Consequently, [the applicant] is wanted by the Police of Vietnam for deliberately acting against the State’s regulations on economic management, causing serious consequences (stipulated in Article 165 – Criminal Code of Vietnam).

ADDITIONAL FACTS OF THE CASE: N/A

ACCOMPLICES: N/A

ARREST WARRANT OR JUDICIAL DECISION 1

CHARGE: Deliberately Acting Against the State’s Regulations on Economic Management, Causing Serious Consequences

LAW COVERING THE OFENCE: Article 165 – Criminal Code of Vietnam

MAXIMUM PENALTY POSSIBLE: 20 years. Imprisonment

TIME LIMIT FOR PROSECUTION OR EXPIY DATE ARREST WARRANT: None

ARREST WARRANT OR JUDICIAL DECISION HAVING THE SAME EFFECT: No.

68/ANDT, issued on18 February 2011 by the investigative security agency of Vietnam in Vietnam

Name of signatory: [The applicant’s] Copy of Arrest Warrant available at the General Secretariat in the Language used by the Requesting Country.

3.    ACTION TO BE TAKEN IF TRACED

LOCATE AND ARREST WITH A VIEW TO EXTRADITION

The country at the request of which the present notice has been published has given assurances that extradition will be sought upon arrest of the person, in conformity with its national laws and/or the applicable bilateral and multilateral treaties.

PROVISIONAL ARREST

For the country at the request of which the present notice has been published, this Red Notice is to be treated as a formal request for provisional arrest. Please apply provisional arrest, in conformity with national laws and/or the applicable bilateral and multilateral treaties.

Immediately inform INTERPOL Hanoi and the ICPO-INTERPOL General Secretariat that the fugitive has been found.

Article 165 of the Criminal Code of Vietnam which was referred to in the IRN. According to the applicant’s evidence, Article 165 relevantly provided:

1.    Those who abuse their positions and/or powers to deliberately act against the State’s regulations on economic management, causing a loss of between one hundred million dong and three hundred million dong, or under one hundred million dong but the offenders have already been disciplined for such acts but repeat their violations thus causing serious consequences, shall be subject to non-custodial reform for up to three years or a prison term of between one and five years.

2.    Committing the crime in one of the following circumstances, the offenders shall be sentenced to between three and twelve years of imprisonment:

(a)    For self-seeking or other personal purposes;

(b)    In an organized [sic] manner;

(c)    Employing perfidious tricks;

(d)    Causing a loss of from three hundred million dong to under one billion dong or causing other very serious consequences.

3.    Committing the crime which entails a loss of one billion dong or more or other particularly serious consequences, the offenders shall be sentenced to between ten years and twenty years of imprisonment.

4.    The offenders may also be subject to the confiscation of part or whole of their property, the ban from holding certain posts or doing certain jobs for one to five year [sic].

The Federal Court (FCA) said as follows:

55    Articles 82 to 84 and 86 of INTERPOL’s Rules on the Processing of Data ((III/IRPD/GA/2011) (2019) include that certain minimum data be provided, including minimum judicial data. The conditions include that red notices may not be issued in respect of certain crimes, including for example “offences originating from a violation of laws or regulations of an administrative nature”. The Rules provide that certain assurances must be given by a National Central Bureau and that the General Secretariat shall conduct a legal review of all red notices prior to their publication to ensure compliance with INTERPOL’s Constitution and Rules.

The questions to the FCA were as follows:

Question 1: If the Minister receives an Interpol Red Notice (IRN), does that mean that the Minister is confined to a consideration of s 501(6)(h) of the Migration Act 1958 (Cth) for the purpose of determining a visa application?

Answer: No, in obiter.

Question 2: Once a person responds to an invitation to comment on whether that person satisfies s 501(6)(h), "does the Minister have to make a decision as soon as a response is received"?

Answer: No, in obiter.

Question 3: In determining whether it was open to the Minister to draw the inference in s 501(6)(h) from the IRN, could reference be made to the terms of Article 165 of the Criminal Code of Vietnam which was referred to in the IRN?

Answer: Yes.

Question 4: Can it be said that, "in circumstances where the Minister was unsure whether a person is or is not of good character, the Minister could refuse to decide, for the purposes of s 501(6)(c), whether the applicant for the visa is or is not of good character and, in the event of such a refusal, then the applicant would not have satisfied the Minister that the applicant passes the character test, so that, in those circumstances, the Minister could, in his or her discretion, refuse to grant a visa"?

Answer: No.

According to the FCA, "the “character test” in s 501(6)(h) directs attention to whether “it is reasonable to infer” from the Interpol notice “that the person would present a risk to the Australian community or a segment of that community”". Having said that, in determining whether it was open to the Minister to draw the inference in s 501(6)(h) from the IRN:

Question 5: Can it be said that, "[r]ead with s 501(1), s 501(6)(h) directs attention to whether it is reasonable to infer from an Interpol notice that, if the visa were not refused, the person would present a risk"?

Answer: Yes.

Question 6: Can it be said that "the question whether a person would present a risk necessarily allows consideration of possibilities because it involves a consideration of what might or might not occur in the future"?

Answer: Yes.

Question 7: Can it be said that s 501(6)(h) "is not framed in terms of an inquiry into the probabilities of a person doing some specific act, for example, something harmful or otherwise contrary to the interests of the Australian community"?

Answer: Yes.

Question 8: Can it be said that s 501(6)(h) "does not identify any specific area or topic of risk"?

Answer: Yes.

Question 9: In determining whether to draw the inference in s 501(6)(h) from the IRN, could the Minister "take into account an addendum to the IRN which was to be regarded as part of the IRN in force"?

Answer: Yes.

Question 10: Can it be said that it "might be reasonably open in an administrative context to make findings and draw inferences from a document such as the IRN where those findings and inferences might not be available or might not have been made in a judicial context"?

Answer: Yes.

Question 11: In determining whether it was open to the Minister to draw the inference in s 501(6)(h) from the IRN, could regard "be had to the regulatory regime under which Interpol notices are issued"?

Answer: Yes.

Question 12: Has the Applicant "discharged the onus of establishing that it is not legally possible to conclude “from” the IRN that the applicant “would present a risk to the Australian community or a segment of that community”"?

Answer: No.

Question 13: "The applicant relied upon the “principle of legality”, submitting that a strict construction of s 501(6)(h) [for the purposes of determining whether the Minister was confined to an examination of the IRN] is to be preferred because legislation is presumed not to interfere with “fundamental” common law rights, freedoms or immunities without clear language. The right the applicant identified as engaging this principle was stated to be a “right to family and community life”, citing Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at [110]. The applicant submitted that he “lives in Australia as do his wife and two adult daughters, all of whom are Australian citizens”. Can it be said that, although the Applicant was entitled to apply for a subclass 155 visa, "he does not hold that visa or have some freestanding entitlement to it" and therefore "has not identified any accrued right or any “fundamental” common law right which those provisions might infringe"?

Answer: Yes.

Question 14: Is it "reasonable to take the legislature as having intended to require a decision-maker to draw an inference of risk from a document [such as an IRN] which was not prepared for the purpose of forming a view about risk and which is not in fact directed to that topic"?

Answer: No.

Question 15: Can it be said that "the submission that s 501(6)(h) must be strictly construed such that reference cannot be made to matters outside of the relevant notice has the potential to operate against the interests of people in the applicant’s position" in that those people might need to rely on material external to the notice for the purposes of claiming that the charges against them were politically motivated?

Answer: Yes.

Question 16: For the purposes of s 501(6)(h), was the Minister confined to an examination of the IRN?

Answer: No.

Question 17: Was it legally unreasonable for the Tribunal "not to have inquired or adjourned the hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so"?

Answer: No.

The FCA answered those questions as follows: