Foreign Interference (Countermeasures) (Reviewing Tribunal) Rules 2022

No. S 584

Foreign Interference
(Countermeasures) Act 2021

Foreign Interference
(Countermeasures)
(Reviewing Tribunal) Rules 2022

In exercise of the powers conferred by section 99 of the Foreign Interference (Countermeasures) Act 2021, the Minister for Home Affairs makes the following Rules:

PART 1

PRELIMINARY

Citation and commencement

1.  These Rules are the Foreign Interference (Countermeasures) (Reviewing Tribunal) Rules 2022 and come into operation on 7 July 2022.

Definitions

2.—(1)  In these Rules, unless the context otherwise requires —

“appeal” means an appeal made under section 92(1) of the Act against an appealable decision;

“appeal proceedings” means proceedings before a Reviewing Tribunal regarding an appeal contained in a notice of appeal;

“appealable decision” means any of the following:

(a) an authorisation by the Minister made under section 23(3)(b) of the Act to the competent authority to give a Part 3 direction;

(b) an authorisation by the Minister affirmed under section 23(3)(c) of the Act to the competent authority to give a Part 3 direction;

(c) a declaration by the Minister made under section 26(3)(b) of the Act in relation to an online location;

(d) a declaration by the Minister affirmed under section 26(3)(c) of the Act in relation to an online location;

“appellant” means —

(a) a person who is given a Part 3 direction and who brings an appeal against an appealable decision about an authorisation by the Minister to give that direction; or

(b) a proprietor of a proscribed online location who brings an appeal against an appealable decision relating to that online location;

“authorised representative”, for any person, means an individual who is allowed under rule 11 to represent the person in an appeal proceeding, whether or not the individual is an advocate and solicitor;

“chairperson”, for a Reviewing Tribunal, means the chairperson of the Reviewing Tribunal appointed under section 94(2) of the Act;

“contact address”, for any person, means any of the following nominated by the person for the receiving of documents under these Rules:

(a) the person’s residential address in Singapore, if an individual;

(b) the address of the person’s place of business in Singapore;

(c) an email address;

(d) the person’s chosen means of notification and chosen means of access to access any of those documents;

“defence” means a defence to a notice of appeal under rule 18;

“identity particulars” means —

(a) for an individual —

(i) the full name, and the number of the passport or other identity document, of the individual; and

(ii) the nationality of the individual; and

(b) for an entity —

(i) the full name of the entity;

(ii) the place the entity was incorporated or otherwise formed; and

(iii) the Unique Entity Number (UEN) of the entity, where available;

“notice of appeal” has the meaning given by rule 13;

“parties”, in relation to any appeal proceedings about an appeal, means —

(a) the appellant in the appeal; and

(b) the Minister,

and “party” means either of them;

“Secretary” means the Secretary to the Reviewing Tribunals appointed under section 96(2) of the Act;

“Tribunal member” means a member of a Reviewing Tribunal;

“working day” means any day except a Saturday, Sunday or public holiday.

(2)  Unless the context otherwise requires, a reference to a Reviewing Tribunal in relation to any part of an appeal proceeding is a reference to the Reviewing Tribunal who has cognizance of the appeal which is the subject of the appeal proceeding.

(3)  An appeal is decided by a Reviewing Tribunal without an in‑person hearing if it is decided on written material and submissions without parties to the appeal proceeding attending in person before the Reviewing Tribunal.

Address for service on Reviewing Tribunal

3.  Any appeal or other document to be lodged with, given to or served on a Reviewing Tribunal under these Rules must be addressed to the “Secretary to the Reviewing Tribunals” and sent by email to [email protected].

Appropriate form

4.—(1)  In these Rules, “appropriate form”, in relation to any purpose for which a specific form is required to be used, means the relevant form that is set out on the website at https://www.mha.gov.sg/fica/resources.

(2)  A requirement in these Rules that a document be in an appropriate form includes a requirement that the document be completed in the English language and in accordance with such directions as may be specified in the appropriate form.

(3)  However, where strict compliance with an appropriate form is not possible, the Secretary may allow for the necessary modifications to be made to that form, or for the requirements of that form to be complied with in such other manner as the Secretary thinks fit.

Secretary to Reviewing Tribunals

5.—(1)  The duty of the Secretary is —

(a) to provide administrative and secretarial support to each Reviewing Tribunal in relation to every appeal the Reviewing Tribunal has cognizance of under these Rules; and

(b) to perform such other duties as are prescribed in these Rules.

(2)  The Secretary has to attend at —

(a) every hearing by a Reviewing Tribunal of an appeal referred to the Reviewing Tribunal under rule 20; and

(b) every meeting of a Reviewing Tribunal when deliberating on making a decision about an appeal.

(3)  For every appeal proceeding relating to an appeal, the Secretary has to act in accordance with such instructions as may be given from time to time by the chairperson of the Reviewing Tribunal which has cognizance of the appeal under these Rules, where —

(a) answering all correspondence and other communications addressed to the Reviewing Tribunal in connection with the appeal; and

(b) accepting, transmitting, serving and keeping in custody all notices and other documents in accordance with the Act and these Rules in connection with the appeal.

PART 2

EXERCISE OF JURISDICTION

Inquisitorial function

6.—(1)  Where a Reviewing Tribunal considers an appeal made to it against an appealable decision, it is the duty of the Reviewing Tribunal —

(a) to investigate the case; and

(b) in relation to the Reviewing Tribunal’s findings from its investigations, to determine the appeal by applying the same principles as would be applied by a civil court, including principles on an application for judicial review.

(2)  To avoid doubt, a Reviewing Tribunal is not under any duty to hear, consider or determine any appeal if it determines the appeal to be frivolous or vexatious; and in which case, section 97(2) of the Act applies.

Non‑disclosure if prejudicial to national security, etc.

7.—(1)  A Reviewing Tribunal must carry out its functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is prejudicial to Singapore’s national security, the prevention or detection of serious crime, the economic wellbeing of Singapore or the continued discharge of the functions of the intelligence services of Singapore.

(2)  A Reviewing Tribunal is not to order any person to disclose any information or document which the Tribunal itself would be prohibited from disclosing by virtue of this rule, had the information or document been disclosed or provided to the Reviewing Tribunal by that person.

(3)  A Reviewing Tribunal’s proceedings and meetings, including any in‑person hearings, must be conducted in private.

Manner of hearings and consideration

8.—(1)  A Reviewing Tribunal is under no duty to hold in‑person hearings, and may decide an appeal without an in‑person hearing.

(2)  A Reviewing Tribunal may hold, at any stage of its consideration, in‑person hearings at which a party to the appeal proceedings may make representations, give evidence or call witnesses.

(3)  However, any in‑person hearing by a Reviewing Tribunal has to be in accordance with these Rules (and not otherwise).

(4)  A Reviewing Tribunal may hold separate in‑person hearings which —

(a) the Minister or competent authority whose decision or Part 3 direction is the subject of the appeal;

(b) the appellant; or

(c) any other individual who is a witness or may be required to attend as a witness in the appeal proceeding,

may be required to attend and at which that individual may make representations, give evidence or call witnesses.

(5)  Within a period notified by the Reviewing Tribunal for the purpose of this rule, the appellant, the Minister or competent authority or other individual mentioned in rule 9(1) must inform the Reviewing Tribunal of any witnesses the appellant, Minister, competent authority or individual (as the case may be) intends to call; and no other witnesses may be called without the permission of the Reviewing Tribunal.

Separate hearings, witnesses, etc.

9.—(1)  A request for a separate in‑person hearing in connection with any appeal proceedings —

(a) may be made in writing by any of the following:

(i) the appellant;

(ii) the Minister or the competent authority whose decision or Part 3 direction is the subject of the appeal;

(iii) any individual who is a witness or may be required to attend as a witness in the appeal proceeding; and

(b) must —

(i) be made no later than 3 working days before the separate in‑person hearing sought; and

(ii) contain the reasons for the request.

(2)  Without limiting rule 7 but subject to paragraph (3), a Reviewing Tribunal and the Secretary must not disclose to an appellant or to any other person —

(a) the fact that the Reviewing Tribunal has held, or proposes to hold, a separate in‑person hearing under these Rules;

(b) any information or document disclosed or provided to the Reviewing Tribunal in the course of that hearing, or the identity of any witness at that hearing; or

(c) the fact that any information, document, identity or opinion has been disclosed or provided in the circumstances mentioned in sub‑paragraph (b).

(3)  Subject to rule 7, the Reviewing Tribunal concerned may disclose anything described in paragraph (2) with the consent of —

(a) in the case of paragraph (2)(a), the individual required to attend the separate in‑person hearing; or

(b) in the case of paragraph (2)(b) or (c), the witness in question or the person who disclosed or provided the information or document.

Evidence

10.—(1)  A Reviewing Tribunal may receive evidence in any form, and may receive evidence that would not be admissible in a court of law.

(2)  A Reviewing Tribunal may give directions as to —

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide the appeal before it; and

(c) the manner in which the evidence is to be placed before the Reviewing Tribunal.

(3)  Without limiting paragraph (2), a Reviewing Tribunal may require a witness to give evidence —

(a) on oath or affirmation at an in‑person hearing; or

(b) by way of affidavit or statutory declaration,

but not by means of a telephone communication, live video or live video or audio link.

(4)  A Reviewing Tribunal may do all or any of the following in connection with an appeal proceeding relating to an appeal it has cognizance of:

(a) summon any party or a party’s authorised representative, or any person who is not such a party, in Singapore to attend to do one or both of the following:

(i) give evidence to the Reviewing Tribunal;

(ii) produce to the Reviewing Tribunal any document, record or other thing in the custody or under the control of that party or person;

(b) put questions to the parties, their authorised representatives and their witnesses or other person summoned under sub‑paragraph (a);

(c) procure and receive all such evidence, written or oral, as the Reviewing Tribunal may think necessary or desirable to procure.

Representation

11.—(1)  An appellant may be represented by an authorised representative at an appeal proceeding.

(2)  The following must appear in person before a Reviewing Tribunal at an in‑person hearing of the Reviewing Tribunal:

(a) an appellant if an individual, together with his or her authorised representative;

(b) an appellant’s authorised representative, if the appellant is not an individual;

(c) any individual who is a witness or may be required to attend as a witness in the appeal proceeding, together with his or her authorised representative.

(3)  The leave of the Reviewing Tribunal concerned is required for anyone to represent an appellant, or an individual mentioned in paragraph (2)(c) (called A), as an authorised representative in connection with appeal proceedings unless all of the following are first given to the Secretary or given within the time directed by the Reviewing Tribunal concerned:

(a) the identity particulars and a contact address in Singapore of the authorised representative;

(b) evidence of a valid authorisation by the appellant or A (as the case may be) to act as an authorised representative of the appellant or A in connection with appeal proceedings.

PART 3

STARTING APPEAL

How to start appeal

12.  An appeal against an appealable decision must be made to a Reviewing Tribunal by lodging, a notice of appeal in accordance with rule 13, no later than 30 days after the date the appellant in the appeal is given notice under section 23(6) or 26(5) of the Act (as the case may be) of the appealable decision.

Notice of appeal

13.—(1)  Every notice of appeal —

(a) must state —

(i) the identity particulars of the appellant making the appeal;

(ii) the identity particulars and address in Singapore of the appellant’s authorised representative; and

(iii) a contact address for the service of documents on the appellant in connection with the appeal proceedings before the Reviewing Tribunal;

(b) must contain —

(i) a concise statement of the circumstances under which the appeal arises, the facts and the issues in the appeal;

(ii) a summary of the grounds of appeal against the appealable decision, identifying, in particular —

(A) the statutory provision under which the appealable decision was made;

(B) the extent (if any) to which the appellant contends that the appealable decision was based on an error of fact or was wrong in law; and

(C) the extent (if any) to which the appellant is appealing against the Minister’s exercise of discretion in making the appealable decision; and

(iii) a succinct presentation of the arguments supporting each ground of appeal;

(c) must be in the appropriate form;

(d) must be signed and dated by the appellant, or on the appellant’s behalf by the authorised representative; and

(e) must be accompanied by —

(i) a copy of the appealable decision; and

(ii) any documents supporting the arguments.

(2)  An appellant cannot raise or rely on any ground of appeal objection which is not stated in the notice of appeal during any hearing of the appeal by the Reviewing Tribunal unless the appellant has permission under rule 16 to amend the appellant’s notice of appeal to include that ground.

Appeal number

14.—(1)  Upon the Secretary receiving a notice of appeal, the Secretary must do all of the following before the end of the first working day after the day of that receipt:

(a) affix to the notice of appeal an official stamp showing the date on which the notice was received;

(b) assign a number to the notice of appeal and enter it in a list;

(c) inform the appellant of the number assigned under sub‑paragraph (b).

(2)  After affixing the official stamp and assigning a number to the notice of appeal, the Secretary must also without delay —

(a) refer the notice of appeal to a Reviewing Tribunal in accordance with rule 20; and

(b) subject to rules 15, 16 and 17, forward a copy of the notice of appeal to the Minister.

Defective notices of appeal

15.—(1)  If the Reviewing Tribunal having cognizance of an appeal considers that the notice of appeal —

(a) is not lodged in accordance with rule 13; or

(b) is materially incomplete, unduly prolix or lacking in clarity,

the Reviewing Tribunal may, without affecting section 98(2) of the Act, give any directions to the appellant that are necessary to remedy the notice.

(2)  A Reviewing Tribunal may, if it considers that the efficient conduct of the appeal proceedings so requires, instruct the Secretary to defer sending a copy of the notice of appeal to the Minister until after the directions given under paragraph (1) have been complied with.

Amendment of notice of appeal

16.—(1)  An appellant may, with the permission of the Reviewing Tribunal having cognizance of the appellant’s appeal, amend the appellant’s notice of appeal.

(2)  Where the Reviewing Tribunal grants permission under paragraph (1), the Reviewing Tribunal may do so on such terms or conditions as the Reviewing Tribunal considers fit to impose and with such further or consequential directions as the Reviewing Tribunal may consider necessary; and rule 14(2)(b) applies to the amended notice of appeal accordingly.

(3)  Permission to amend a notice of appeal against an appealable decision in order to add a new ground of appeal must not be granted unless the Reviewing Tribunal is satisfied that —

(a) the ground is based on any matter of fact or law which came to light after the notice of appeal was lodged;

(b) it was not practicable to include such ground in the notice of appeal at the time the notice of appeal was lodged; or

(c) there are exceptional circumstances to do so.

Withdrawal of appeal

17.—(1)  An appellant may, at any time and with the permission of the Reviewing Tribunal, withdraw the appellant’s notice of appeal.

(2)  Where a Reviewing Tribunal grants permission under paragraph (1), the Reviewing Tribunal may require the Secretary to publish a notice of the withdrawal of the appeal in such manner as will secure adequate publicity for the fact of the withdrawal.

Defence

18.—(1)  Subject to rule 19, the Minister may serve on the Reviewing Tribunal a defence after receiving a copy of the notice of appeal from the Secretary forwarded under rule 14(2)(b), except that any such defence must be served on the Reviewing Tribunal no later than 5 working days after that receipt.

(2)  Any defence to a notice of appeal —

(a) must cite the number assigned under rule 14(1)(b) to the notice of appeal;

(b) must state a contact address for the service of documents on the Minister in connection with the appeal proceedings relating to the notice of appeal;

(c) must contain a succinct presentation of the arguments upon which the Minister will rely in responding to each ground of appeal in the notice of appeal; and

(d) must be signed and dated by an authorised officer or the Minister.

No new grounds for appealable decision to be raised

19.—(1)  Any defence of the Minister under rule 18 must not raise any new ground, fact or document supporting the making of the appealable decision which is the subject of the appeal, that was not contained in the grounds, facts and documents supporting the appealable decision.

(2)  Where any new ground, fact or document supporting the making of the appealable decision which is the subject of the appeal is raised, the Reviewing Tribunal may disregard it in its consideration of the appeal.

 

Made on 4 July 2022.

PANG KIN KEONG

Permanent Secretary,
Ministry of Home Affairs,
Singapore.

[MHA 112/2/00121; AG/LEGIS/SL/111C/2020/3 Vol. 1]

(To be presented to Parliament under section 99(3) of the Foreign Interference (Countermeasures) Act 2021).