Baroi, Manik v Minister for Immigration & Multicultural Affairs

[1998] FCA 990

MANIK BAROI, PAMELA BAROI, NANCY BAROI and LIZA BAROI v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 1099 of 1997
FED No. 990/98
Number of pages - 5

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

SACKVILLE J

SYDNEY, 22 July 1998 (hearing and decision)

#DATE 22:7:1998

Counsel for the Applicant: Mr B Goldsmith

Solicitor for the Applicant: Goldsmiths Lawyers

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent: Australian Government Solicitor

SACKVILLE J

This is an application by the Refugee Review Tribunal ("RRT") under Federal Court Rules ("FCR"), O 27, r 9, seeking to set aside a subpoena issued to it by the applicants in these proceedings. In the alternative, the RRT seeks to be relieved from compliance with the subpoena.

Some background is necessary. The applicants seek review of a decision of the RRT made on 24 November 1997. In that decision, the RRT affirmed earlier decisions by a delegate of the Minister not to grant protection visas to the applicants. In the RRT's reasons, reference was made to the similarity between the claims made by the first applicant and those made by another applicant whose claim for a protection visa had been accepted by the RRT. In each case, the applicant claimed to be a Bangladeshi Christian who had suffered persecution in Bangladesh by reason of his religion. Each applicant claimed to fear persecution for a Convention reason if he were to be returned to Bangladesh. I shall refer to the other applicant as "Mr M".

The RRT found that the first applicant had fabricated claims made in his statutory declaration "in order to manufacture for himself a profile which he thought would lead the Tribunal to find that he is a refugee". The RRT's finding was based, in part, on the RRT's view that the first applicant's claims were so similar to those made by Mr M in his statutory declaration "as to exclude the possibility that the similarities are coincidental".

The applicants' claim for relief is set out in an amended application filed on 5 June 1998. That amended application was prepared at a time when the applicants were legally represented (as they have been in connection with this application). The grounds of the application are these:

"1. Procedures that were required by the [Migration Act 1958 (Cth)] to be observed in connection with the making of the Decision were not observed and/or the Decision involved an error of law being either an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the RRT."

Clearly enough, the application invokes s 476(1)(a) of the Migration Act 1958 (Cth) ("Migration Act") which provides a ground of review where "procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed".

The amended application provides particulars of the grounds relied on by the applicants. The particulars are as follows:

"The RRT failed to act according to substantial justice and the merits of the case in: (i) questioning the first applicant as to the similarity between his statutory declaration and that of another applicant for refugee status without showing him a copy of that other applicant's statutory declaration; (ii) not putting the first applicant on notice that it proposed to make findings that he had had access to another applicant's statutory declaration and that he had fabricated his declaration based upon it; (iii) not otherwise providing the applicants with a copy of the other applicant's statutory declaration; (iv) finding that the first applicant had had access to another applicant's statutory declaration and that he had concocted his statement based upon it."

Although the amended application was filed on 5 June 1988 and on 18 June 1998 the matter was set down for hearing on 31 July 1998, it was not until 1 July 1998 that the applicants caused a subpoena to be issued. That subpoena was directed to the RRT. It sought the following material:

"The file including all letters, memoranda, notes, declarations and other documents in or forming part of the file relating to an application by [Mr M] to the Refugee Review Tribunal, being file reference number ..."

Mr Reilly, who appears for the RRT on the current application, has prepared detailed written submissions. In those submissions, he relies upon s 439 of the Migration Act to support the RRT's claim that the subpoena should be set aside. Section 439(1) provides that:

"(1) This section applies to a person who is or has been: (a) a member of the Tribunal; or (b) Ö; or (c) an officer of the Tribunal; or (d) Ö".

Section 439(2) provides as follows:

(2) This section applies to information or a document if the information or document concerns a person and is obtained by a person to whom this section applies in the course of performing functions or duties or exercising powers under the Act.

Section 439(5) provides as follows:

(3) A person to whom this section applies must not be required to produce any document, or to divulge or communicate any information, to which this section applies to or in: (a) a court ... (b) except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act."

Section 439 establishes a confidentiality regime for information or documents "concern[ing] a person" obtained by or supplied to the RRT. The major purpose of such a regime is to protect applicants, so that they can present their case for refugee status freely and without fear of future retribution. In this case it is common ground that, as it happens, Mr M's name is known to the applicants. However, the contents of his file are not. In any event, the applicants' knowledge of Mr M's identity does not obviate the need to apply the criteria laid down by s 439(5) of the Migration Act.

Section 439(5) of the Migration Act expressly prohibits any person to whom the section applies being required to produce documents described in s 439(2) to or in a court. The provision is similar to s 51(3) of the National Crime Authority Act 1984 (Cth), which prohibits the production of certain documents to a court except where "it is necessary to do soÖfor the purpose of carrying into effect the provisions of this Act". In National Crime Authority v Gould (1990) 23 FCR 191, Foster J followed observations made by Allen J in State Drug Crime Commission of New South Wales v Chapman (1987) 12 NSWLR 447, in relation to similar language in s 29(3) of the State Drug Crime Commission Act 1985 (NSW). Allen J said this (at 452):

"As to the word 'necessary' it does not have, in my judgment, the meaning of 'essential'. The word is to be subjected to the touchstone of reasonableness. The concept is one as to what reasonably is necessary in a commonsense way. As Pollock CB said in Attorney-General v Walker (1849) 3 Ex 242; 154 ER 833: 'It may be stated as a general rule that those things are necessary for the doing of a thing which are reasonably required or which are legally ancillary to its accomplishment.' I do not consider any closer definition than that should be attempted. The word speaks for itself."

Mr Reilly submits that the same approach should be adopted towards the concluding words of s 439(5) of the Migration Act. Mr Goldsmith, who appears on behalf of the applicants in the principal proceedings, does not suggest otherwise. In these circumstances I am content to adopt the course suggested by Mr Reilly. The question is therefore whether production of documents from Mr M's file is reasonably necessary for the purpose of carrying into effect Part 8 of the Migration Act.

Mr Reilly accepts that in some circumstances it will be necessary for the RRT to produce documents for the purpose of carrying into effect Part 8. However, he submits that this is not such a case. He argues that Mr M's file could have no bearing on the applicants' case. He recognises, as I follow his argument, that the applicants may have a stronger claim in relation to the statutory declaration. However, he submits that even production of the statutory declaration is not necessary for the purposes of Part 8 in the relevant sense, because the authorities establish that it is enough, where the RRT relies on confidential information, that the substance of what is alleged be disclosed to the applicant. Since the RRT did disclose the substance of the statutory declaration to the first applicant, access to the document would not assist the applicants' case.

It is convenient to deal first with production of the statutory declaration. It is true, as Mr Reilly suggests, that there is unlikely to be any substantial dispute as to the course of events before the RRT. The RRT put to the first applicant some paragraphs of Mr M's declaration that were said to be either identical or very similar to the first applicant's own declaration. According to the RRT, the first applicant stated that he had written his statutory declaration in Bengali and claimed to have received no assistance from anyone in preparing his account. The RRT said that the first applicant initially blamed the translator, but when it was pointed out that if the documents were similar in English, they must have been similar in Bengali, he said he had no explanation for the similarities.

On the assumption that the question for determination in this Court is whether the RRT disclosed to the applicants the "substance" of Mr M's statutory declaration (a matter that has not yet been argued), it is not self-evidence that the RRT did so. It is difficult for the Court to make a final judgment on that issue without having the benefit of a copy of Mr M's statutory declaration. The terms of Mr M's statutory declaration may confirm that the RRT fully and accurately disclosed the relevant portions of the declaration. On the other hand, the text of the statutory declaration may suggest that material of assistance to the applicants' claim was not disclosed, or that sections of Mr M's statutory declaration, which the RRT thought were substantially the same as portions of the applicants' declaration, in fact were different. Of course, I am making no judgment on these issues. The point is that without the applicants having access to the statutory declaration, neither they nor the Court are in a position to assess whether the material portions of the document were disclosed.

Moreover, on the present particulars, an issue may arise as to whether there is anything more that the applicants could have done in the proceedings before the RRT, had they been given access to the other statutory declaration. An issue may arise, for example, as to whether they should have had an opportunity to obtain evidence from an interpreter. An issue might also arise as to whether the applicants could have provided a plausible explanation for apparent similarities in the two statutory declarations. It would be difficult, if not impossible, to deal with those issues without Mr M's statutory declaration being available in the present proceedings.

Since the applicants have not had access to Mr M's statutory declaration, it is not possible to form a judgment as to whether it will assist their case that the RRT failed to observe procedures with which it was bound to comply. Nevertheless, in my opinion, there is a danger that, if Mr M's statutory declaration is not produced by the RRT, the review process contemplated by Part 8 of the Migration Act might be frustrated: cf Chiorny v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 238 (Olney J), at 240. Accordingly, in my view, the statutory declaration is "necessary" for the purposes of carrying into effect the provisions of Part 8 of the Migration Act. Needless to say, in reaching this conclusion, I am not expressing any view as to the merits of the applicants' case in the principal proceedings.

The balance of the subpoena falls into a different category. The subpoena seeks the production of the entirety of the file in the proceedings involving Mr M. I have been taken to the relevant portions of the reasons given by the RRT in the present case. I think a reading of those reasons indicates that the RRT relied upon the similarities between the first applicant's claims and the terms of Mr M's statutory declaration. There is nothing to suggest that the RRT took into account any other aspect of the file relating to Mr M's application, except the similarities between the statutory declaration and issues discussed in the RRT's reasoning in Mr M's case. No issue arises concerning access to that decision, since Mr Goldsmith informs me that the applicants already have a copy of it. Mr Goldsmith has not suggested that the reasons for the decision in Mr M's case point to other documents in Mr M's file being relevant to the proceedings.

In these circumstances, I do not think it can be said that the production of the remainder of the file is necessary, within the meaning of s 439(5) of the Migration Act, for the purposes of carrying into effect Part 8 of that Act. Mr Goldsmith suggests that it may be that, if Mr M's file were obtained, other issues upon which the applicants could rely might become apparent. However, that seems to me to be speculative. It does not serve as a proper basis for requiring production of the remainder of the file or for showing that the language of s 439(5) is satisfied.

I think the appropriate course is this:

1. The subpoena issued to the RRT by the applicants in these proceedings should be set aside under FCR, O 27, r 9, save insofar as the subpoena seeks the production of the statutory declaration referred to in the reasons of the RRT given on 24 November 1997.

2. A copy of the statutory declaration, with any reference to the name of the person making the statutory declaration having been removed, should be provided to the solicitor for the applicants on or before 5:00pm, 24 July 1998.

3. Compliance with par 2 should be sufficient compliance with the subpoena.

I propose to make no order for costs in relation to the motion by the RRT to set aside the subpoena.