Ama16 v Minister for Immigration - [2016] FCCA 1966

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMA16 v MINISTER FOR IMMIGRATION & ORS

[2016] FCCA 1966

Catchwords:
MIGRATION – Immigration Assessment Authority – fast track decision – notice to produce – whether discovery a preferable procedure – whether document relevant to any issue – whether document subject to public interest immunity.

Legislation:
Evidence Act 1995 s.130
Migration Act 1958 ss.473CC(2)(a), 473EA, 473GA, 473GB, 473GD

Cases cited:
Ahmet v Chief Commissioner of Police [2014] VSCA 265
Alister v R (“Hilton Bombing Case”) (1984) 154 CLR 404; (1984) 51 ALR 480; (1984) 58 ALJR 97; [1984] HCA 85
Baker v Campbell (1983) 153 CLR 52; (1983) 49 ALR 385; (1983) 57 ALJR 749; (1983) 83 ATC 4606; (1983) 14 ATR 713; [1983] HCA 39
Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215
Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195; [2012] FCA 1218
Creswick Resources N/L v Mining Warden of State of Victoria [2000] VSC 134
Diddams v Commonwealth Bank of Australia [1998] FCA 497
Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 60; (1978) 3 ACLR 385
Melasecca & Zayler v R (1994) 74 A Crim R 210
Millar v Harper (1888) 38 Ch D 110
National Companies and Securities Commission v NewsCorporation Ltd (1984) 156 CLR 296; (1984) 6 ALN N37; (1984) 52 ALR 417; (1984) 58 ALJR 308; (1984) 8 ACLR 843; (1984) 2 ACLC 301; [1984] HCA 29
Parkin v O’Sullivan (2009) 260 ALR 503; [2009] FCA 1096
Ross v Blake’s Motors (1951) 2 All E.R.689
Sankey v Whitlam (1978) 142 CLR 1; (1978) 21 ALR 505; (1978) 53 ALJR 11
Somerville v Australian Securities Commission (1995) 60 FCR 319; (1995) 131 ALR 517; (1995) 18 ACSR 236; (1995) 13 ACLC 1527
Spargos Mining N.L. & Anor v Standard Chartered Australia Ltd & Ors (No 1) (1989) 1 ACSR 311; (1990) 8 ACLC 87

WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559; (1980) 41 FLR 175; (1980) ATPR 40-163; [1980] FCA 79
Zarro v Australian Securities Commission (1992) 36 FCR 40; (1992) 10 ACLC 831

Applicant:

AMA16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

Third Respondent:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File number:

MLG 430 of 2016

Judgment of:

Judge Riley

Hearing date:

9 June 2016

Date of last submission:

1 July 2016

Delivered at:

Melbourne

Delivered on:

2 August 2016

REPRESENTATION

Counsel for the applicant:

Lisa De Ferrari

Solicitors for the applicant:

Victoria Legal Aid

Counsel for the first respondent:

Nick Wood

Solicitors for the first respondent:

Clayton Utz

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Clayton Utz

Counsel for the third respondent:

No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 1966
Decision Date: 2 August 2016

CaseChat Overview and Summary

This matter came before Riley J of the Federal Court of Australia. The applicant, Ama16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned the IAA's failure to disclose the contents of an identity assessment form to the applicant, which the applicant contended was a breach of procedural fairness.

The central legal issue before the Court was whether the IAA was obliged to disclose the contents of the identity assessment form to the applicant, notwithstanding a certificate issued by the Secretary under section 473GB of the Migration Act 1958 (Cth). This involved considering the interplay between the Secretary's power to certify that disclosure would be contrary to the public interest and the IAA's discretion under section 473GD of the Act to restrict publication or disclosure of certain matters. The Court also had to determine whether the IAA's actions, in withholding the document and failing to provide a written direction under section 473GD, were lawful.

Riley J reasoned that section 473GB of the Act does not empower the Secretary to issue a certificate that prevents disclosure of a document. Instead, it allows the Secretary to certify that disclosure would be contrary to the public interest due to public interest immunity. Furthermore, the Court noted that section 473GD of the Act grants the IAA discretion to disclose the contents of a document to an applicant, provided a written direction is given. The Court found that the Secretary's certificate, as described by Ms Babbage, did not accord with the provisions of section 473GB. Crucially, the IAA's failure to provide the applicant with a written direction under section 473GD, despite having the discretion to do so, meant that the applicant was not informed of the reasons for the non-disclosure of the identity assessment form.

The Court found that the IAA had failed to provide the applicant with procedural fairness by not disclosing the identity assessment form or providing a written direction under section 473GD. Consequently, the decision of the IAA was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 473GD of the Act provided that:Immigration Assessment Authority may restrict publication or disclosure of certain matters(1)If the President is satisfied, in relation to a review, that it is in the public interest that:(a)any information given to the Immigration Assessment Authority; or(b)the contents of any document produced to the Authority;should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the President may give a written direction accordingly.(2)A direction under subsection (1):(a)must be in writing; and(b)must be notified in a way that the President considers appropriate.(3)If the President has given a direction under subsection (1) in relation to the publication of any information or of the contents of a document, the direction does not:(a)excuse the Immigration Assessment Authority from its obligations under section 473EA; or(b)prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Authority.(4)A person must not contravene a direction given under subsection (1) that is applicable to the personPenalty: Imprisonment for 2 years. In other words, if the IAA considers that the contents of any document in its possession should not be disclosed, or should not be disclosed except in a particular manner or to particular persons, the IAA may direct accordingly. Section 473EA of the Act requires the IAA to give a written statement setting out the reasons for its decision. In the present case, it seems that the Secretary gave the IAA a certificate under s.473GB in relation to the identity assessment form. It also seems that the IAA did not tell the applicant the contents of the identity assessment form, and, consequently, did not give the applicant a written direction under s.473GD of the Act. Ms Babbage explained in her affidavit that:The Certificate provided notification regarding the disclosure of certain information covered by section 473GB of the Migration Act and advised that the Exempt Document should not be disclosed to the Applicant or his representative because the disclosure of the document would be contrary to the public interest. The certificate itself was not provided to the court. However, based on Ms Babbage’s description of the certificate, it seems that it does not accord with s.473GB of the Act. Section 473GB of the Act does not empower the Secretary to issue a certificate saying that a document should not be disclosed. It empowers the Secretary to issue a certificate saying that disclosure of the contents of a document would be contrary to the public interest for reasons of public interest immunity. Additionally, regardless of the s.473GB certificate, s.473GD of the Act permits the IAA, in its own discretion, to disclose the contents of a document to an applicant, provided that the IAA gives the appropriate written statement to the applicant.