AGG17 v Commonwealth of Australia

Link copied
Case Copied 30 min read

FEDERAL COURT OF AUSTRALIA

AGG17 v Commonwealth of Australia [2018] FCA 242

File number: SAD 13 of 2017
Judge: CHARLESWORTH J
Date of judgment: 8 March 2018
Catchwords: PRACTICE AND PROCEDURE – order requiring a party to file a book of relevant documents –book filed pursuant to the order containing a redacted relevant document — public interest immunity claimed in respect of redacted material – claim founded on national security interests – proceedings in the nature of judicial review of an administrative decision based upon information contained in the withheld material – public interests favouring non-disclosure outweighed by public interests favouring disclosure
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13, 16

Australian Citizenship Act 2007 (Cth) ss 21, 24, 45A, 45B, 45C

Evidence Act 1995 (Cth) s 130

Federal Court of Australia 1976 (Cth) s 37AG

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 5
Cases cited:

Alister v The Queen (1984) 154 CLR 404

BIS Cleanaway (trading as CHEP) & Ors v Tatale & Anor; Brambles (trading as CHEP) v Tatale & Anor [2007] NSWSC 378

Chapman v Luminis (2000) 100 FCR 229

Chep Australia Ltd & Ors v Bunnings Group Ltd [2010] NSWSC 301

Commonwealth v Northern Land Council (1991) 30 FCR 1

Eastman v The Queen (1997) 76 FCR 9

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Okwume v Commonwealth of Australia [2016] FCA 1252

Sankey v Whitlam (1978) 142 CLR 1

SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277, (2012) 291 ALR 281

SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1
Date of hearing: 26 June and 13 October 2017
Date of last submissions: 14 December 2017
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 61
Counsel for the Applicant: Ms Costello with Mr Aleksov
Solicitor for the Applicant: Beena Rezaee Legal & Migration
Counsel for the Respondents: Mr Hanks QC with Mr d’Assumpcao
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

SAD 13 of 2017
BETWEEN:

AGG17

Applicant
AND:

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

8 MARCH 2018

THE COURT ORDERS THAT:

1.The time for compliance with the order in paragraph 3 made on 3 March 2017 be extended to 9:00am on 28 March 2018.

2.The respondents be excused from compliance with the order in paragraph 3 made on 3 March 2017 to the extent that compliance would require the respondents to disclose to the applicant the contact details contained on page 3 of the document examination report dated 30 September 2016.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J:

  1. The applicant in this proceeding is a citizen of Afghanistan.  He is presently the holder of a protection visa granted under the MigrationAct 1958 (Cth). On 12 May…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read AGG17 v Commonwealth of Australia and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] FCA 242
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Afghanistan and holder of a protection visa, applied for Australian citizenship and submitted a Taskera as evidence of identity. The Minister for Immigration and Border Protection seized the Taskera, claiming it was a bogus document. The applicant filed an action seeking declaratory relief and recovery of the Taskera. The respondents were ordered to file a court book containing relevant documents. The Minister filed a supplementary court book with a redacted document examiner’s report. The applicant sought orders for disclosure of the redacted report or, alternatively, standard discovery.

The court had to determine whether the Minister's claim of public interest immunity over the redacted parts of the document examiner's report was valid. This involved weighing the public interest in non-disclosure, based on national security, against the public interest in the administration of justice. The court had to consider the relevance of the redacted material to the proceedings, the nature of the interests affected by disclosure, and the potential impact on the outcome of the case. The court found that the redacted material was relevant and that the public interest in the administration of justice outweighed the public interest in non-disclosure.

The court concluded that the Minister's claim for public interest immunity should not be upheld. The court extended the time for compliance with the earlier order for the filing of the court book to 9:00am on 28 March 2018. The respondents were excused from disclosing the contact details of the document examiner as they were not relevant to the substantive issues. The court allowed the interlocutory application for disclosure of the redacted parts of the document examiner's report.

Orders

Orders of the court

1. The time for compliance with the order in paragraph 3 made on 3 March 2017 be extended to 9:00am on 28 March 2018.

2. The respondents be excused from compliance with the order in paragraph 3 made on 3 March 2017 to the extent that compliance would require the respondents to disclose to the applicant the contact details contained on page 3 of the document examination report dated 30 September 2016.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Argument on the interlocutory application proceeded on the basis that the admission of the DE report into evidence on the substantive application would be governed by s 130 of the Evidence Act 1995 (Cth). Whilst s 130 of the Evidence Act governs a claim for public interest immunity in respect of the admission of evidence, its terms closely reflect the common law governing immunity claims made in a pre-trial context: see Eastman v The Queen (1997) 76 FCR 9 at 63 (von Doussa, O’Loughlin and Cooper JJ); Chapman v Luminis (2000) 100 FCR 229 at [54] (von Doussa J); and SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277; (2012) 291 ALR 281 at [9] (Besanko J). It is nonetheless the common law that applies in the present context. The wider context is one in which the Minister would be in default of the pre-trial order of 3 March 2017 if relevant documents are withheld from the court book without lawful excuse. A lawful excuse may be a proper claim for public interest immunity. It is accepted by the Minister that the substantive portions of the redacted material are relevant to the issues to be determined in the proceedings. The contact details of the author of the DE report have been redacted on the basis of relevance and are, in addition, subject to a discrete claim for public interest immunity. I am satisfied that the contact details for the document examiner are not relevant to any substantive issue falling for determination in the proceedings and disclosure of them will not be ordered on that basis. It is not necessary to determine the public interest immunity claim in respect of that portion of the DE report. In determining a claim for public interest immunity, it is necessary to weigh the public interest invoked in support of the claim for non-disclosure of the redacted material, against the public interest in the administration of justice in the particular circumstances of the case. This requires a court to identify the harm that would be done by the disclosure of the information redacted from the DE report, and then to consider whether the administration of justice in the proceedings would be frustrated or impaired by its non-disclosure. If it appears that harm would be done to the public interest by the disclosure of the material, but the document or information is also likely to contain material evidence, then the Court must balance the competing aspects of the public interest so as to determine which of them should prevail: Alister v The Queen (1984) 154 CLR 404 at 412 (Gibbs CJ); Sankey v Whitlam (1978) 142 CLR 1 at 38 — 43 (Gibbs ACJ); 58 – 64 (Stephen, Aikin JJ agreeing at 103); 95 — 96 (Mason J). Factors relevant to balancing the competing public interests may include the nature of the interest affected by disclosure, the seriousness of the issues in relation to which production is sought, the likelihood that production of the documents will affect the outcome of the case and the likelihood of an injustice occurring should the documents not be produced: Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38 (Black CJ, Gummow and French JJ).THE PUBLIC INTEREST IN NON-DISCLOSURE

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant in this proceeding is a citizen of Afghanistan. He is presently the holder of a protection visa granted under the MigrationAct 1958 (Cth). On 12 May 2016, he applied under s 21 of the Australian Citizenship Act 2007 (Cth) to become an Australian citizen. His application for citizenship is yet to be determined by the Minister for Immigration and Border Protection. In support of his citizenship application, the applicant gave to a delegate of the Minister a copy of his Taskera, being an identity document, equivalent for present purposes to a passport. At the delegate’s request, the applicant then provided the delegate with the original Taskera. The original Taskera has been seized by the delegate under, or purportedly under, s 45C(1) of the Citizenship Act on the basis that it is a “bogus document” as defined in the Citizenship Act and the Migration Act. In this action, the applicant seeks (among other things) declaratory relief to the effect that the Taskera has not been lawfully seized and consequential orders providing for its recovery to him. The Commonwealth of Australia and the Minister are named as respondents. They may be referred to together as the respondents. On 3 March 2017 I made an order (in paragraph 3 of the orders made on that day) to the effect that the respondents file and serve a court book in the action containing relevant documents on or before 14 April 2017. A supplementary court book filed on behalf of the Minister on 28 April 2017 contains a document examiner’s report (DE report). Parts of the DE report are redacted. The Minister makes a claim for public interest immunity over the redacted portions. By interlocutory application filed on 8 May 2017 the applicant seeks orders in the following terms: (1)Pursuant to paragraph 3 of the Orders made on 3 March 2017, that the Second Respondent produce the document described as “Document examination report” dated 30 September 2016 for inclusion in the Court Book.(2)Alternatively, an order pursuant to r 20.13 of the Federal Court Rules, that the Second Respondent provide standard discovery. With the consent of the parties, the application for discovery is deferred pending the determination of the public interest immunity claim in respect of the content of the court book. For the reasons that follow, the claim for public interest immunity in respect of the redacted parts of the DE report should not be upheld.THE DELEGATE’S REASONS The Minister must not approve an application for citizenship unless he is satisfied of the identity of the person: s 24(3) of the Citizenship Act. Division 1 of Pt 3 of the Citizenship Act is titled “Bogus documents”. The expression “bogus document”, as used in that Division, has the same meaning as that given under s 5(1) of the Migration Act:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false and misleading statement, whether or not made knowingly.