BDF15 v Minister for Immigration
[2020] FCCA 923
•24 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDF15 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 923 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant protection visa – whether Tribunal denied the applicant procedural fairness by failing to disclose to him a certificate purportedly issued pursuant to s.438 of the Act (438 Certificate) – whether the documents covered by the 438 Certificate are the subject of legal professional privilege – whether failure to disclose 438 Certificate was material – whether the Tribunal erred in finding the 438 Certificate was valid – whether error in so finding was material – whether Tribunal erred in finding the documents covered by the 438 Certificate were not material without first giving the applicant an opportunity to be heard on that question – whether any failure to give applicant such opportunity material – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), ss.35, 118, 119, 133, Part 3.10, Division 1 |
| Cases cited: BDF15 v Minister for Immigration & Anor [2015] FCCA 3014 |
| Applicant: | BDF15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 63 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 31 October 2019 |
| Date of Last Submission: | 14 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers Solicitors |
| Counsel for the First Respondent: | Ms N Laing |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
Subject to order 3 the applicant pay the first respondent’s costs set in the amount of $7,206.
The parties have liberty to apply within fourteen days of the making of these orders for an order discharging or varying order 2.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 63 of 2017
| BDF15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) the applicant, a citizen of Sri Lanka, claims the second respondent (Tribunal), when reviewing a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), denied the applicant procedural fairness by not disclosing to him a certificate that had purportedly been issued under s.438 of the Act (438 Certificate). The applicant also claims the Tribunal made other errors in the manner in which it considered the 438 Certificate and the documents to which it purportedly related.
The Minister accepts the Tribunal failed to disclose the 438 Certificate to the applicant and that, by failing to do so, denied the applicant procedural fairness. The Minister submits, however, that the applicant cannot establish that the Tribunal’s failure to disclose the 438 Certificate to the applicant, or that the other errors the applicant claims the Tribunal made, were material to the Tribunal’s decision.
At the hearing before me counsel for the applicant called for the production of the documents covered by the 438 Certificate. Counsel submitted that access to the documents was necessary to counter the Minister’s contention that the applicant is unable to show the materiality of the Tribunal’s denial of procedural fairness to the applicant.
In response to the applicant’s counsel’s call for the production of documents, counsel for the Minister produced to the Court an affidavit made by Mr Cabarrus, a lawyer employed by the lawyer on the record for the Minister. Mr Cabarrus exhibited to his affidavit the documents covered by the 438 Certificate (438 Documents); deposed those documents “are emails between legal officers of the litigation branch of the then-Department of Immigration and Border Protection (Department) and other stakeholders regarding the judgment made in favour of the applicant in proceeding SYG1726/2015”; and further deposed the Minister claimed privilege over the documents. “Proceeding SYG1726/2015” is a reference to the judgment of Judge Street in BDF15 v Minister for Immigration in which his Honour set aside the decision of the Refugee Review Tribunal (RRT) that had affirmed the delegate’s decision not to grant the applicant a Protection visa.[1] Counsel for the Minister also produced to the Court the 438 Documents.
[1] BDF15 v Minister for Immigration & Anor [2015] FCCA 3014
Counsel for the applicant challenged the Minister’s claim for legal privilege on a number of grounds. I did not determine the question of privilege at the hearing. I informed counsel for the parties that I proposed to reserve my judgment on that question, indicating that if I were to uphold the Minister’s claim for privilege I would proceed to determine the application on that basis, but if I were not to uphold the Minister’s claim for legal professional privilege, I would grant the applicant access to the 438 Documents and provide the applicant an opportunity to make submissions. At the conclusion of the hearing I granted the applicant leave to file further submissions on the question of privilege.
To be in a position to consider the issues in this proceeding, therefore, it will be necessary to describe the claims for protection the applicant made; the course of his application for protection before the RRT; Judge Street’s judgment; the course of proceeding before the Tribunal after the application for review was remitted pursuant to the orders of Judge Street; the Tribunal’s reasons for affirming the delegate’s decision; and the grounds of application stated in the amended application filed on 18 January 2018.
Claims for protection
The applicant first stated his claims for protection during an irregular maritime arrival entry interview on 25 August 2012 (Entry Interview).[2] The applicant there claimed he left Sri Lanka because he received a threat from an unknown source for having supported the political figure “Sarath Fonseka” of the United National Party. The applicant also claimed that in around 2007 he received threats from the Sri Lankan Army (SLA) and navy.[3]
[2] CB13
[3] CB25
The second occasion on which the applicant articulated his claims is in a statutory declaration made on 5 December 2012 (Statement) that accompanied his application for a Protection visa.[4] The applicant did not repeat the claims he made at the Entry Interview. Instead the applicant claimed as follows:
[4] CB71-74
a)The applicant is of Sinhalese ethnicity and a Catholic.
b)Between 2002 and 2009 the applicant was forced to assist the SLA working at checkpoints, and to report to them.
c)The applicant was forced to work for the SLA. The SLA made the fishermen in the area work for them without pay for three to four days a week.
d)The applicant was also under pressure from the Liberation Tigers of Tamil Eelam (LTTE). The LTTE threatened the applicant to supply them with oil or they would shoot him. The applicant supplied to the LTTE oil he had bought for his fishing boat. The SLA found out about this and they beat the applicant. That occurred on several occasions in 2004 and 2005.
e)In 2006, while the applicant was out fishing on his boat, four navy boats came and started firing on six fishing vessels the navy suspected were helping the LTTE. Ten people were killed. The applicant had to swim two hours to get to shore.
f)After this incident the work the applicant had to do for the SLA increased. He was required to build bunkers and cut down trees.
g)In 2008 the applicant and other fishermen formed a fishing society. They received death threats from the LTTE, and they had to pay money to the LTTE not to be killed. The LTTE had taken 15 fishermen before the members of the society began to pay the LTTE.
h)In 2009 the SLA prohibited the applicant and other fishermen from fishing. The SLA used the applicant and the other fishermen to assist them in their war effort. The SLA wanted their assistance, but they did not fully trust the applicant and the other fishermen because they suspected them of having contact with and possibly assisting the LTTE. In July 2009 the applicant escaped to his village.
i)In October 2010 “Government officials” came to the applicant’s family home when the applicant was out fishing. They informed the applicant’s wife they knew the applicant had escaped because he was helping the LTTE, and no person who helped the LTTE would be allowed to live in the country.
j)After the applicant found out about the visit by the government officials, the applicant went to stay at his sister’s house in Negombo, but the applicant was not able to stay there long because his sister and her husband were worried they would get into trouble.
k)The applicant kept moving from place to place until he eventually left Sri Lanka illegally by boat in July 2012.
The applicant further stated that in his entry interview he claimed he had problems with “Sareth [sic] Fonseka” because he did not feel confident to tell the entry officer his real reasons.
The third occasion on which the applicant articulated his claims was at his interview by the delegate on 13 June 2013.[5] The applicant said he was afraid to tell the true story at his Entry Interview and that his regarding his support of Sarath Fonseka were false, and that the SLA perceived the applicant to be a LTTE supporter. He also said the LTTE would use the applicant as a frontline man in the line of fire to warn the SLA of the LTTE’s approach to their checkpoints and control areas. In addition, the applicant’s agent claimed that, although the applicant was not a Tamil, he was forced to work for and give oil to the LTTE and was consequently perceived to be a LTTE supporter. The applicant’s agent also claimed the applicant fears harm because he would be considered a failed asylum seeker; and that, on his journey to Australia, the applicant sat on the deck of the boat and, for that reason, he could be perceived as a person who assisted a people smuggler.
[5] CB118
A fourth occasion on which the applicant stated his claims is the hearing before the RRT. Because it is potentially relevant to the questions I am required to consider, it will be convenient to reproduce here the evidence the applicant gave to the RRT that Judge Street reproduced in his reasons for judgment:[6]
[6] BDF15 v Minister for Immigration & Anor [2015] FCCA 3014, at [5].
M: So you said that, you referred to an incident in 200, [sic] I understand when you were out fishing?
A: Yeah.
M: I don't really want to talk to you much about that incident. It is plausible, based on the country information that I've seen. However, for the purpose of the record, I understand that the Sri Lankan Navy fired upon fishing boats in the general area and killed many persons. I understand you and another person were the only two people to survive. Where is the other person who survived? Is that a Sinhalese fisherman?
A: Yeah, Sinhalese.
M: And is he still fishing?
A: I don't know anything about. .. I don't know anything about him. I don't know now where he is.
M: When did you lose contact with him?
A: Yeah, since the war was over, and I just managed to escape from the [Z] area, I didn't see him or anything.
M: So approximately 2009?
A: Yeah.
M: So from approximately 2009 you have lost contact with this person?
A: No, I didn't have that much contact with him.
M: So the question was, my apologies, I don't wish to actually ... at this point, so you've never seen him, this other survivor, you've never seen him since 2009?
A: Yeah, that's right, since 2009, I didn't had [sic] any contact with him.
M: OK. I also understand you became involved in a fishing society in 2006.
…
R: .. . I don't think I've taken sufficient instructions on the 2006 incident, it's becoming more glaring to me now.
M: Which on [sic] was that?
R: In which he survived the Sri Lankan navy firing on the fishing boats.
M: I'm actually not. .. It's very plausible, based on the information that I've seen, so I wasn't going to dispute that.
R: Not that I'm saying dispute, it's that, well, things like, were they aware that he survived, different things I haven't taken enough instruction on [sic].
M: I was aware of that, which is one of the reasons I was focusing on what was happening after that period.
R: And I do have difficulties getting instructions from my client for some reason, maybe it's the interpreter that I use, or the actual going back in time to get the information, and I don't think there's enough detail there that I would like to have time to seek more instructions from him on that incident, because I think that's a glaring error on my part that I haven't got more information there on that incident.
M: Well I'll make a formal request for further submissions from you, how long would you need?
It appears the applicant submitted to the RRT a statutory declaration in which he purported to describe in greater detail the incident of 2006. That statutory declaration is not reproduced in the court book that was tendered into evidence in this proceeding, but some of its contents are reproduced in Judge Street’s reasons for judgment (Judge Street’s emphasis): [7]
10. Some time between March and September 2006, I am my two companions set to sea to fish about 6:30am. We went to one of our usual fishing grounds about 15kms seaward from the shore. There were about 5 other boats in the same area visible to me. About 7:30 am 4 Navy vessels approached us at high speed. The [sic] were grey, I remember the number 4 painted on the hull of one of them, they were all about 30m long. They all had large machine guns mounted on the deck in the prow. As they approached the area, they split up, some going towards the other fishing boats, one headed straight for us.
11. We were in the process of hauling in our nets. We let go of the nets and put our hands in the air. Nevertheless, without warning of any kind they opened fire on us with the heavy machine gun. My boat caught fire and I jumped into the sea. While I was attempting to avoid them and not drown I could see that other boats were also on fire and were sinking. I lost track of my companions as I desperately tried to avoid the Navy boat and keep from drowning.
12. The Navy boat pursued me and the sailors on it tried to shoot me using T56 rifles, but I kept diving
14. On arrival to shore, I went to the Church to give thanks to God for my escape. I received not medical treatment despite having burns on my face. I was not interviewed by any official about the incident.
15. Later I found that only one other man survived, 8 were killed, one of them was my brother-in-law. I come to help them save their friends and that is why the Army boat accompanied them. However, it was only about a third of the Navy boats. (emphasis added)
(numbering errors in original)
[7] BDF15 v Minister for Immigration & Anor [2015] FCCA 3014, at [6]
The decisions of the delegate and the RRT
On 11 September 2013 the delegate refused to grant the applicant a Protection visa principally because the delegate did not accept the applicant was a credible witness, and the applicant applied to the RRT for review of that decision.
The RRT accepted the applicant suffered some limited mistreatment by the LTTE, and had provided limited assistance to the LTTE, but it was not satisfied the SLA seriously suspected the applicant of supporting the LTTE. The RRT also accepted that in 2006 the Sri Lankan Navy fired on the applicant and other fishermen; that the applicant and one other fisherman were the only survivors; and that the applicant became a member of a fishing society and also that between 2005 and 2009 the LTTE abducted and killed some members of that society.
The RRT did not, however, accept that in 2009 the applicant had fled to his home village, or that the Sri Lankan officials sought the applicant as he claimed or at all. The RRT principally relied on the applicant’s account that the Sri Lankan authorities did not approach him for almost eighteen months after his claimed escape to his village; and the RRT did not find plausible that he feared for his safety for being perceived as an LTTE supporter yet he would return to and remain at his home village.
Potentially relevant to the questions I am required to consider is the RRT’s consideration of the 2006 incident. As I have already noted, the RRT accepted that the 2006 incident as recounted by the applicant in his Statement occurred. After referring to the applicant’s statutory declaration of 8 May 2015, and submissions the applicant’s agent made in relation to it after the hearing, the RRT said:[8]
That said, it is perplexing that in the multiple opportunities the applicant had to put this information, he only first lodged much of this material evidence in a post-Tribunal hearing submission (and the applicant has always had the assistance of registered migration agents). However, and for the reasons set out herein, I am not satisfied the applicant was in hiding between October 2010 and his departure from Sri Lanka on 27 July 2012. If the Sri Lankan authorities were interested in the applicant for any reason, I am satisfied he could have been contacted prior to his departure from Sri Lanka (and I do not accept any effort was made to contact the applicant). Further, though not apparently eye-witnesses to the shooting, even the applicant’s statutory declaration dated 8 May 2015 stated inter alia that other fishermen “heard the shooting and saw the flames and the burning boats” and though the SLA had instructed them not to intervene, they had “sent a boat out to accompany us” (at [7]). It may therefore appear there are multiple witnesses to the incident in question and no evidence was available to the fate of same [sic].
[8] CB141-142, [40]
Judge Street’s judgment
On 9 November 2015 Judge Street set aside the RRT’s decision, and remitted the applicant’s application for review to the RRT for determination according to law. His Honour found the RRT failed to give the applicant a hearing as required by s.425 of the Act. His Honour found the RRT acted contrary to the representation it made to the applicant at the hearing before it that it would accept the applicant’s account of the 2006 hearing without first giving the applicant notice that it intended to depart from the representation. That is apparent from the following passages from his Honour’s reasons for judgment:[9]
In these circumstances, I am satisfied that the applicant has been denied a fair process in the hearing under s.425 where the applicant was informed by the Tribunal that his evidence as to the 2006 incident would be accepted and without further notice the Tribunal has changed that position. The Tribunal has erroneously treated a supplementary submission as raising for the first time the reference to the applicant’s brother-in-law being killed and identified that as material evidence. On a fair reading, the Tribunal was expressing concern in paras.38 and 40 in relation to credibility that led to the key finding in para.41 as to whether the Tribunal accepted the applicant as having a real chance of being subject to serious or significant harm as a result of the 2006 incident.
I am satisfied that the departure by the Tribunal from what was represented to the applicant at the hearing in the present case as to the acceptance of the 2006 incident and then without notice a changed position by the Tribunal gives rise to a practical injustice which cannot be said not to have had no possible impact on the outcome. Given the Tribunal’s representation of acceptance of the 2006 incident, I find that the Tribunal failed to afford the applicant a fair hearing as required by s.425 of the Act in relation to the applicant’s evidence as to the 2006 incident at the time of the hearing, which included the fact that the applicant’s brother-in-law was killed without giving the applicant notice that the Tribunal’s acceptance of the plausibility of that evidence had changed. I find this was a jurisdictional error.
[9] BDF15 v Minister for Immigration & Anor [2015] FCCA 3014, at [16], [17]
Minister’s response to Judge Street’s orders
It would be convenient if I identify at this point the documents that are the subject of a claim for privilege (that is, the “438 Documents”).[10]
a)First, there is an email from a person identified as a “Senior Legal Officer” sent on 20 November 2015 to what I infer is a section of the then Department of Immigration and Border Protection (Department). It unboundedly contains legal advice in relation to Judge Street’s judgment.
b)Second, there is an email sent on 23 November 2015 from an officer of a particular section of the Department to the officer who sent the email referred to in (a). It contains instructions in relation to the contents of the email referred to in (a).
c)Third, there is an email from an officer of the Department forwarding the email referred to in (b) to another officer of the Department who has the title of “Senior Legal Officer / Framework and Training Section” in a particular branch of a particular group of the Department.
d)Fourth, there is an email sent on 24 November 2015 from the recipient of the email in (c) to the sender of the email in (a) giving instructions.
e)Fifth, there is an email sent to the Tribunal on 25 November 2015 from the person who sent the email in (a) conveying the substance of the advice contained in the email in (a), and the substance of the instructions conveyed by the email in (d).
f)Sixth, there is an email sent on 11 November 2015 from a person who has the title of “Legal Officer” to the compliance section of the Department.
[10] Confidential Exhibit JRC-1. At the hearing the parties assumed I had power under s.133 of the Evidence Act 1995 (Cth) (Evidence Act) to inspect the documents for the purpose of determining whether they are privileged, and the parties did not object to my inspecting the documents for that purpose. The parties assumed (as did I) that the Evidence Act applies to the determination of the question whether legal professional privilege applied to the 438 Documents. For reasons that appear later, that assumption is not correct; the question of privilege turns on the application of the common law. Under the common law, however, the court has the power to inspect the documents for the purpose of determining whether the documents record privileged communications – see Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67, at [52]
On 4 December 2015 a delegate of the Minister created the 438 Certificate, which is as follows:[11]:
CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER s 438 OF THE MIGRATION ACT 1958
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 136 to 140 of file number . . . . The disclosure of this information would be contrary to the public interest…
[11] CB155
Proceedings before the Tribunal
By letter dated 14 June 2016 the Tribunal informed the applicant, through his representative, that he should provide a written submission setting out all claims on which the applicant relies,[12] and, by separate letter, also dated 14 June 2016, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments.[13]
[12] CB157
[13] CB158
The applicant’s representative provided “post hearing submissions” in a letter dated 22 July 2016.[14] The representative referred to a number of matters, including a number of “points from the judgment of His Honour Judge Street”. Here the representative summarised the effect of Judge’s Street’s judgment namely that the RRT found that information that had been included in a supplementary submission that referred to the applicant’s brother in law “was a new claim when it was not”.
[14] CB165-170
Tribunal’s reasons
Before it examined the applicant’s claims the Tribunal referred to the 438 Certificate. The Tribunal:[15]
a)noted the documents covered by the 438 Certificate contained legal advice;
b)found that, although the 438 Certificate may not have correctly described the documents, it was valid because the documents contain “legal in confidence” material that is subject to legal professional privilege; and
c)found, however, that the material was not relevant to its review “as it deals only with background facts, a summary of the Tribunal’s decision, a discussion of the reason for the Federal Circuit Court (FCC) remittal and advice on its legality”; that “[m]ost of the material in the advice has already been published in the Tribunal’s decision record and the Federal Circuit Court judgment”; and that the “remaining material is concerned with the legality of the judgment and is not relevant in any way to the review of the delegate’s refusal of the protection visa”.
[15] CB176, [19]
The Tribunal then made a number of findings. In particular, the Tribunal:
a)noted the applicant abandoned the claim he feared harm because of his support for Sarath Fonseka and, for that reason, the applicant does not have a genuine fear of harm;[16]
[16] CB178, [38]
b)accepted the applicant is of Sinhalese ethnicity and a Catholic, and noted the applicant claimed no fear of harm for these reasons;[17]
[17] CB185, [97]
c)accepted the applicant comes from a fishing family, and that the family lived in the city in Negombo, which is on the west coast of Sri Lanka, but that, for historical reasons, the applicant’s family has been fishing on the east coast of Sri Lanka from time to time;[18]
d)accepted that from 2003 to 2009 the applicant owned a fishing boat and with his two brothers and other Sinhalese fishermen fished on the east coast;[19]
e)accepted that it was plausible, and consistent with country information, that during the civil war the LTTE cadres forced the applicant and other Sinhalese fishermen to provide to them kerosene and biscuits, but it did not accept the LTTE approached the applicant two to three times a week as he claimed over six years;[20]
f)notwithstanding the findings in (e), and given the applicant’s profile, did not accept the applicant would face a real chance of serious harm if he returned to Sri Lanka now or in the foreseeable future because he had given occasional support to the LTTE;[21]
g)accepted that sometime in 2006, while the applicant was out fishing with a number of other Sinhalese fishermen, the Sri Lankan navy attacked their boats in the mistaken belief they were LTTE boats, or were suspected of being supporters of the LTTE; the applicant’s boat sank and that he swam for a lengthy period until he was picked up by fishing boats from the village and taken ashore; and the applicant protested to the Department of Fisheries in Colombo, as a consequence of which the applicant was provided with a new boat and engine with which he resumed his fishing operation in the east coast;[22]
h)accepted the applicant returned to his village in July 2009, but not after escaping from the SLA;[23] the Tribunal did not accept the SLA considered the applicant to be a supporter of the LTTE because it found the applicant’s evidence about the SLA questioning him to be vague and lacking in detail;[24]
i)accepted that after he returned to his village in July 2009 the applicant remained there in his family home, fishing in the area, until he left his village in 2010; and found that if he had been wanted for questioning the applicant could have been easily located by authorities during this period;[25]
j)did not accept that in October 2010 a group of around seven people came looking for the applicant in his village; the Tribunal found it implausible that seven persons would come to the applicant’s home to confirm his whereabouts but then leave without questioning the applicant, or that the persons would tell the applicant’s wife of the nature of their enquiries before he was located;[26]
k)accepted the applicant may have moved from his village to another location to improve the viability of his fishing operation; but did not accept the applicant moved because he was trying to escape the attention of the authorities;[27] and
l)found the applicant worked in the area to which he had moved but returned to his village to see his wife and child from time to time.[28]
[18] CB185, [98]
[19] CB185, [99]
[20] CB185, [100]; [105]
[21] CB186, [107]
[22] CB189, [126]
[23] CB187, [113]
[24] CB186, [108]; CB187, [113]
[25] CB187, [115]
[26] CB187-188, [116]
[27] CB188, [118]
[28] CB188, [119]
In light of these findings, and for reasons it is not necessary to set out, the Tribunal was not satisfied the applicant met the refugee criterion provided by s.36(2)(a) of the Act or the complementary protection criteria provided by s.36(2)(aa) of the Act.
Grounds of application
The amended application contains the following three grounds:
1.The Tribunal fell into jurisdictional error in failing to disclose the s438 certificate to the applicant.
Particulars
a.At [19] the AAT found that the s438 certificate was valid; and
b.Procedural fairness required the Tribunal to:
i. Disclose the existence of the certificate to the applicant;
ii. Give the applicant the opportunity to make submissions on the validity of the certificate;
iii. Disclose that the Tribunal considered the material to be irrelevant to the review; and
iv. Give the applicant at least an opportunity to seek a favourable exercise of the discretion under s438(3)(b).
2.The Tribunal fell into jurisdictional error in finding that the s438 certificate was valid.
Particulars
a.As per the Full Federal Court’s judgment in BEG15 v Minister for Immigration [2017] FCAFC 198 legal advice from the Department’s legal advisors as to the reasons for remittal and other legal advice were held to be internal working documents and not covered by s438(1)(a) or (b) and thereby rendered the s438 certificate invalid.
b.At [19] the Tribunal found that the s438 certificate was valid as the documents contained “legal in confidence” material and are subject to legal professional privilege; and
c.The Tribunal fell into jurisdictional error in its application of the criterion of s438(1)(b) to the documents covered by the s438 certificate.
3.The Tribunal fell into jurisdictional error in making a finding that the s438 certificate was valid and that the material was irrelevant to the review without putting the finding to the applicant for comment.
Particulars
a.At [19] the AAT gives a description of the material as only background facts:
i. Summary of the Tribunal’s decision; and
ii. Discussion of the reason for the Federal Circuit Court remittal and advice on its legality;
b.At [19] the AAT gives its reasons for finding for that [sic] the material was irrelevant to the review as:
i. Most of the material in the advice has already been published in the Tribunal’s decision record and the Federal Circuit court [sic] judgment; and
ii. The remaining material is concerned with the legality of the judgment and is not relevant in any way to the review of the delegate’s refusal of the protection visa;
c. The AAT fell into jurisdictional error in its reasoning that the material was irrelevant by considering the wrong issues;
d.The AAT fell into jurisdictional error in denying the applicant the opportunity to make submissions on whether the material was published in the Tribunal’s decision record and the Federal Circuit Court judgement [sic] and the relevance and accuracy of the advice given concerning the legality of the judgment. Any of this material could be prejudicial or advantageous to the applicant.
Does legal profession privilege apply to the 438 Documents?
The first matter I must consider is the source of the law of legal professional privilege that applies to the circumstances of the case before me; and that requires me to identify the context in which the question of privilege has arisen. That context is counsel for the applicant at the hearing before me making a “call” for the production of the 438 Documents;[29] the Minister’s producing documents in answer to the “call”; and the Minister’s objecting to the applicant having access to them. In other words, the context is the Minister asserting legal professional privilege as a ground for objecting to the applicant being granted access to the 438 Documents.
[29] The applicant’s counsel’s “call” for the production of the 438 Documents reflects a common practice that occurs at hearings. The call consists of counsel for the party calling for the documents stating words to the effect of “I call for” followed by a description of documents. The practice of making such calls is assumed by s.35 of the Evidence Act. An oral call by itself has no direct legal effect, although where the called party does not without good cause produce the documents the calling party may apply to the court for an order that the documents be produced. More often than not, however, the calling party does not apply for an order for the production of the documents the subject of the call but instead relies on the called party’s failure to produce documents as a basis for submitting the court should infer the called documents do not exist or to make adverse inferences against the party who failed to produce the documents.
There are two major sources of law that govern legal professional privilege. One is Division 1 of Part 3.10 of the Evidence Act 1995 (Cth) (Evidence Act), and in particular s.118 and s.119 of that Act. These provisions, however, apply at the point a party seeks to adduce evidence at a hearing, either by asking a question of a witness or by tendering a document.[30] The Evidence Act, therefore, does not apply to the determination of the Minister’s claim for legal professional privilege because the Minister has not asserted privilege in the context of the applicant seeking to tender any of the 438 Documents into evidence.
[30] Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67, at [17], [64], [91], [149]
The other source of law is the common law:[31]
It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. . . .
Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity…
[31] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, at [9], [11]
The privilege applies to confidential communications between a lawyer and his employer, including where the employer is the Crown or some other statutory body, made for the dominant purpose of seeking or receiving legal advice.[32]
[32] Waterford v The Commonwealth (1987) 163 CLR 54 at pages 63-64 (Mason and Wilson JJ), and 74 (Brennan J)
Potentially relevant to the questions I have to decide is the principle that, at common law, “a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege”.[33] “Waiver” of privilege that would otherwise be attached to confidential communications between a client and a lawyer is effected by the client acting inconsistently with the maintenance of the confidentiality of the communication.[34] What “brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality”.[35] Further:[36]
According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
[33] Mann v Carnell [1999] HCA 66, [28]
[34] Mann v Carnell [1999] HCA 66, [28]
[35] Mann v Carnell [1999] HCA 66, [29]
[36] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, at [30] (references omitted)
The applicant’s principal submissions in relation to legal professional privilege are contained in the “Applicant’s Further Submissions” the applicant filed after the hearing before me. In those submissions, counsel for the applicant submits the Minister bears the onus of establishing that the 438 Documents are subject to legal professional privilege; Mr Cabarrus does not in his affidavit adequately identify the evidence from which it may be possible to determine whether the documents are subject to legal professional privilege; and the Tribunal’s description of the 438 Documents is insufficient to enable the Court to determine whether they are subject to legal professional privilege. The applicant submits, therefore, that the Minister has not discharged the burden of proving the communications recorded by the 438 Documents are subject to legal professional privilege.
The applicant’s submissions ignore the availability to the Court of the power to inspect documents that are the subject of a claim for legal professional privilege to determine disputed claims of privilege. That power is conferred by s.133 of the Evidence Act in the circumstances in which that Act applies; but such a power is also available at common law. That was recognised by the plurality in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia:[37]
A claim for privilege is not conclusively established by the use of a verbal formula. A court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such power. In appropriate cases, there is also power to allow cross-examination of a deponent of an affidavit claiming privilege.
[37] Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67, at [52] (references omitted)
As I have already noted, I have examined the 438 Documents. On the basis of my examination of those documents I am satisfied they all record communications that refer or relate to legal advice concerning the judgment of Judge Street or the orders his Honour made; the communications are confidential; and they pass between a lawyer employed by the Department, and an officer or officers of the Department. From these findings I further find that the communications recorded in the documents were made for the dominant purpose of the giving of legal advice to a delegate of the Minister for the purpose of the delegate exercising his powers under the Act in relation to the applicant, having regard to the orders Judge Street made. I am satisfied, therefore, that each of the 438 Documents is subject to legal professional privilege to which, at the time the documents were created, the Minister was entitled.
At the hearing before me counsel for the applicant submitted that by the Secretary of the Department (or, more likely, by an officer of the Department holding a delegation under s.496(2) of the Act) providing the 438 Documents to the Tribunal, the Minister waived any legal professional privilege to which he may have been entitled in relation to the communications evidenced by those documents. The Secretary or his or her delegate did so, it may safely be inferred, pursuant to s.418(3) of the Act which required the Secretary to provide to the Registrar of the Tribunal “as soon as practicable after being notified” of the applicant’s application for review of the delegate’s decision “each other document” (that is, documents other than those mentioned in s.418(2)) “or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision”.
I am not satisfied that the Secretary’s, or his or her delegate’s, sending the 438 Documents to the Tribunal constituted a waiver by the Minister of the confidentiality that otherwise attached to communications recorded in those documents.
a)First, the privilege that attaches to the communications recorded in the 438 Documents is the Minister’s, not the Secretary’s, privilege. There is nothing in the evidence before me that suggests the Secretary or his or her delegate acted as a delegate or otherwise as an agent of the Minister; the obligation under s.418(3) of the Act is imposed on the Secretary, not the Minister.
b)Second, assuming the Secretary or his or her delegate did act as a delegate, or otherwise on behalf, of the Minister, the reasonable inference that is available to be drawn, and I do draw, is that the 438 Documents were sent to the Registrar of the Tribunal under compulsion of law. That is, the Secretary, or his or her delegate, sent the 438 Documents to the Tribunal because he or she believed s.418(3) of the Act required the Secretary to do so. The sending of the 438 Documents cannot, therefore, be viewed as an intentional act by the Minister done with knowledge that, by so acting, the Minister abandoned, or is to be taken to have abandoned, his or her entitlement to the privilege that attached to the 438 Documents. It might be that the Secretary or his or her delegate was under the mistaken impression that the Secretary was required to provide those documents; but, even so, the decision to send the 438 Documents under a mistaken belief cannot be characterised as an intentional act done with knowledge.
c)Third, assuming the sending of the 438 Documents was an intentional act by the Minister done with knowledge, the documents were sent to the Tribunal subject to the qualification that the Tribunal deal with the documents in the manner provided for by s.438(3) of the Act. That could be viewed as the Minister’s delegating to the Tribunal the power to decide whether to disclose what would otherwise be a confidential communication to which legal professional privilege attached; and the Tribunal maintained the confidentiality of the 438 Documents by finding the documents were privileged, and by not disclosing them to the applicant.
Counsel for the applicant further submitted that the delivery of the documents to the Tribunal, being a person who was not entitled to claim privilege in relation to the 438 Documents, constituted a waiver. I do not accept that submission. Disclosing to a third party for a limited and specific purpose an otherwise privileged communication does not by itself constitute a waiver of the privilege in relation to that privilege. That is illustrated by the facts and judgment of the High Court in Mann v Carnell.[38]
[38] Mann v Carnell [1999] HCA 66
For these reasons, therefore, I am satisfied that the confidential communications recorded in the 438 Documents are subject to legal professional privilege of which the Minister is the beneficiary; and that the Minister did not waive that privilege by the Secretary or a delegate of the Secretary sending the 438 Documents to the Registrar of the Tribunal. That means I must consider the issues that arise in relation to the three grounds contained in the amended application, including materiality, without my referring to the contents of the 438 Documents.
Ground 1
Ground 1 claims the Tribunal made a jurisdictional error by not disclosing to the applicant the 438 Certificate. As I have already noted, the Minister accepts the Tribunal denied the applicant procedural fairness by not disclosing to the applicant the 438 Certificate. The Minister submits, however, that the Tribunal’s failure to disclose the 438 Certificate would only amount to jurisdictional error if the applicant were able to show that the error was material; but the applicant has not shown the error was material.
In the applicant’s counsel’s “Applicant’s Submissions in Reply” (First Reply Submissions) dated 30 October 2019, counsel referred to the applicant’s representative’s written submissions dated 22 July 2016 that were provided to the Tribunal after the matter was remitted to the Tribunal, and to which I have already referred. Counsel submits that the matters relating to Judge Street’s judgment to which the representative referred in her submissions to the Tribunal “were matters that were material to the decision”, and that these “were live issues before the second respondent as they go to the credit of the applicant”.[39] I do not accept those submissions. The submissions the applicant’s representative made to the Tribunal, and the submissions counsel for the applicant makes in relation to those submissions, are not relevant to the materiality of the Tribunal’s decision not to disclose to the applicant the 438 Certificate. That which counsel for the applicant submits was relevant to the applicant’s credibility are the matters in Judge Street’s judgment to which the applicant’s representative drew the Tribunal’s attention, not the Tribunal’s failure to disclose the 438 Certificate.
[39] Applicant’s Submissions in Reply, [3]
Counsel for the applicant also submits that the Tribunal’s reference to “[t]he remaining material” in its description of the 438 Documents suggests that the 438 Documents contained information beyond legal advice. Counsel submits that the character of the “remaining information” is “not known”; that this information “would be relevant to a review being undertaken about” the applicant’s claims; and that the “applicant is entitled to know what the material is in order to make submissions as to its relevance”.[40] There are two matters to note about these submissions.
[40] Applicant’s Submissions in Reply, [4]
First, the submission that the information contained in the 438 Documents would have been relevant to the applicant’s review is not based on any probative material other than, perhaps, the decision made by the Secretary, or by his or her delegate, to provide the documents to the Tribunal, which might imply that the Secretary, or his or her delegate, considered the documents to be relevant. That the Secretary or his or her delegate may have considered the 438 Documents to be relevant, however, cannot by itself ground an inference that the Tribunal considered the documents relevant; certainly not where, as is the case before me, the Tribunal in terms said the documents were not relevant to its review of the applicant’s claims. In any event, what Gageler and Keane JJ in CNY17 v Minister for Immigration and Border Protection said in relation to documents the Secretary is required to provide to the Immigration Assessment Authority under s.473CB(1)(c) applies to documents the Secretary is required to provide to the Tribunal under s.418(1)(c) of the Act:[41]
The requirement for the Authority then to consider the review material that is given to it by the Secretary is not a requirement for the Authority to adopt the Secretary's opinion of the relevance of the review material to the review of the merits of the referred decision that it is the duty of the Authority to conduct. The requirement is no more than that the Authority examine the review material provided to it by the Secretary in order for the Authority to form and act on its own assessment of the relevance of that material to the review of the referred decision. Within the bounds of reasonableness, it is open to the Authority to assess review material as probative of an issue of fact arising in the review, and give that material such weight as it thinks the material deserves in making the decision on the review. Alternatively, it is open to the Authority to assess review material as wholly irrelevant to the review and place no reliance at all on that material in making its decision on the review. What the Authority cannot do is to fail or refuse to turn its attention to any of the review material that is given to it by the Secretary.
[41] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [7]
Second, counsel’s submission asserts the applicant is entitled to have access to the 438 Documents to assess their relevance. The applicant has no such entitlement. Before a party to litigation can be granted access to documents of another party, it must be shown that the documents have an apparent relevance; but, as I have already found, the applicant has not shown that the 438 Documents are relevant or are reasonably capable of being relevant. The applicant goes no further than asserting a potential relevance without reference to the matters contained in Judge Street’s judgment or any other material. Further, even if the applicant could show the 438 Documents are or could reasonably be taken to be relevant, I have concluded they are subject to legal professional privilege which the Minister has asserted. Assuming, as I have found, the Minister had a valid claim of legal professional privilege in relation to the communications recorded in the documents, the Minister is entitled to object to the applicant having access to the documents, whether or not the documents are relevant.
At the hearing before me counsel for the applicant handed up further submissions, also titled “Applicant’s Submissions in Reply” (Second Reply Submissions). In that document counsel submitted the applicant was not provided with a copy of the 438 Documents and, for that reason, the applicant is unable to “prove its materiality to the issues before the second respondent and discharge the onus on the basis of the content of the documents”; the applicant’s representative had provided to the Tribunal written submissions which referred to matters addressed by Judge Street; that these matters were live issues before the Tribunal because they “go to the credit of the applicant”, and the Tribunal’s use of the “remaining material” suggests the existence of material that goes beyond advice, and that this material “would have some influence on the decision maker, who has read and considered it even for the purposes of determining its relevance”; and that the applicant “is entitled to be afforded the opportunity of making submissions as to its relevance and to have those submissions considered”.
These submissions, which overlap with the submissions contained in the First Reply Submissions, assume that the 438 Documents are relevant, in particular, that they “go to the credit of the applicant”, and that the documents would have had some influence on the Tribunal. This, however, does not rise above assertion. Counsel for the applicant has not identified any material on the basis of which it could reasonably be said that the 438 Documents were relevant to the Tribunal’s decision to affirm the delegate’s decision, or how such documents were or could have been material to the Tribunal’s decision. Further, for reasons I have already given, the applicant is not entitled to be granted access the 438 Documents.
Finally, there are the submissions the applicant’s counsel made in a document titled “Applicant’s Further Submissions” which were filed on 7 November 2019 after the hearing (Third Reply Submissions), and an affidavit made by Ms Byers, the solicitor who represented the applicant before the Tribunal, made on 7 November 2019. The applicant seeks leave to rely on that affidavit and make submissions in relation to it. I grant the applicant leave.
In her affidavit Ms Byers deposes as follows:
At the hearing I made oral submissions that His Honour Judge Street’s judgment was correct and the second respondent’s [sic] should adopt His Honour’s findings. I was given two weeks to make post hearing submissions indicating the findings that the second respondent should consider adopting from His Honour’s judgment and for the applicant to make comments on country information that the second respondent put to the applicant during the hearing.
The post hearing submissions appear at CB165. [This is the submission to which I have already referred in paragraph 21 of these reasons.]
In the Third Reply Submissions counsel for the applicant submits that the post hearing submission “addressed the matters discussed at the hearing and they demonstrate that his Honour’s judgment was relevant to merits review to be conducted by the second respondent”.[42] The post hearing submissions, however, do not purport to address matters that had been discussed at the hearing before the Tribunal. The post-hearing submission stated that the applicant’s representative “make[s] the following points from the judgment of His Honour Judge Street”; and the points the representative made are directed to Judge Street having found that the RRT had incorrectly found that the claim the applicant made after the hearing before the RRT that his brother-in law had been killed was a new claim was incorrect. The point of the submission appears to be that the applicant’s claim that his brother had been killed in the 2006 incident was not a claim he first made after the hearing before the RRT. To that extent, what the applicant’s representative said about what Judge Street found could reasonably have been viewed by the Tribunal to be relevant. But that affords no basis for finding that the 438 Documents, as opposed to the findings Judge Street made, were relevant to the issues before the Tribunal. In any event, counsel for the applicant has not articulated how the points the applicant’s representative made in the post hearing submission relates to the materiality of the Tribunal’s not having disclosed to the applicant the 438 Certificate or the 438 Documents.
[42] Applicant’s Further Submissions, [14]
Counsel for the applicant further submits that “it is assumed” the Tribunal had before it “a document that was arguing the “legality” of” Judge Street’s judgment; that it is a reasonable inference that this “would include an analysis of the evidence and the credit of the applicant”, that this meant the Tribunal member “had before her countervailing “submissions”” from the Department’s legal representative on the findings made by Judge Street, and, on “this basis they must be deemed to be relevant and ought to have been disclosed to the applicant”. These submissions merit three responses.
a)First, there is no basis for inferring the 438 Documents were of the character asserted by these submissions.
b)Second, it is inherently unlikely that the 438 Documents would have a character of the sort asserted in these submissions. As I noted earlier, the ground on which Judge Street found the RRT made a jurisdictional error is that his Honour found the RRT acted contrary to the representation it made to the applicant at the hearing before it that it would accept the applicant’s account of the 2006 incident without first giving the applicant notice that it intended to depart from the representation. There is nothing to suggest that in so concluding Judge Street relied on any assessment of the applicant’s credibility. It would have been surprising if his Honour had so relied, given that the ground on which his Honour found the RRT had made a jurisdictional error was not based on any assessment by his Honour of the applicant’s credibility, and that, in any event, questions of credibility of an applicant is entirely a matter for the Tribunal, rather than for this Court exercising jurisdiction under s.476 of the Act, to assess.
c)Third, the submissions ignore the Minister’s claims of legal professional privilege over the 438 Documents, which I have found subsists in relation to the communications recorded in the documents.
Finally, counsel submits that the Tribunal considered the 438 Documents “even if only in the context of whether they were relevant to the ultimate outcome”. From that counsel submits it may be inferred the Tribunal “intellectually engaged with the material in order to determine its irrelevance and accordingly . . . it can be reasonably inferred that they were taken into account in the decision-making process”. It is difficult to know what to make of this submission. If the point of it is to submit the Tribunal actively considered the 438 Documents for the purpose of determining whether the documents were relevant and decided the documents were not relevant, then the Tribunal cannot be said to have made any jurisdictional error. If, however, the point of the submission is that, from the fact the Tribunal considered whether the 438 Documents were relevant and deciding they were not relevant, it is to be inferred that the Tribunal considered the documents to be relevant and relied on them in affirming the delegate’s decision, the submission would cross into the territory of self-contradiction. It is not open to infer from the Tribunal’s finding that the 438 Documents are not relevant that it considered them to be relevant.
For these reasons ground 1 fails.
Ground 2
Ground 2 claims the Tribunal was incorrect to conclude the 438 Certificate was valid. I accept that claim. By its terms s.438 of the Act is concerned with the assertion of public interest privilege; it is not concerned with the protection of legal professional privilege. This error, however, will only have resulted in the Tribunal making a jurisdictional error if the error was material.
The applicant has made submissions in relation to materiality without reference to the individual grounds set out in the amended application. I assume, therefore, that those submissions apply to ground 2. Apart from submitting the 438 Documents are relevant, and the applicant was entitled to be granted access to those documents – submissions I have not accepted – the applicant has not identified how the Tribunal’s error in finding the 438 Certificate to be valid was material to its decision.
Ground 2, therefore, also fails because the applicant has not shown that the Tribunal’s error in finding the 438 Certificate is valid was material to the Tribunal’s decision to affirm the delegate’s decision.
Ground 3
Ground 3 claims the Tribunal made a jurisdictional error by finding that the 438 Documents were not relevant without first putting to the applicant the possibility it might make such finding.
This ground is premised on the assumption that the Tribunal was bound to disclose to the applicant the 438 Certificate. That assumption is the substance of ground 1. I have found that the Tribunal was bound to disclose the 438 Certificate but that the applicant has not shown that its failure to do so was material. Ground 3, however, goes further and says that not only was the Tribunal bound to disclose to the applicant the existence of the 438 Certificate; it was bound to give notice to the applicant of the possibility of its finding that the documents covered by the 438 Certificate were not relevant. It is not clear on what basis the applicant claims the Tribunal would have been bound to give the applicant such notice.
One possibility is suggested by the particulars to the ground; and that is that the material contained in the 438 Documents could have been prejudicial or advantageous to the applicant. There is nothing in the evidence before me, however, that could reasonably suggest the 438 Documents could have been prejudicial or advantageous to the applicant, and that they were not what the Tribunal found them to be, namely, not relevant to the review.
In the Applicant’s Outline of Submissions counsel for the applicant submitted that by determining the 438 Documents were not material for the reasons the Tribunal so determined, without first disclosing to the applicant that it would so determine, the Tribunal denied the applicant the opportunity to make submissions about the matters on which the Tribunal relied for finding the 438 Documents were not relevant.[43] That, however, only repeats that which is suggested by the particulars to ground 3, namely, that it is the potential relevance of the 438 Documents that triggered the asserted obligation by the Tribunal to give the applicant notice of the possibility it might find the 438 Documents not to be relevant. I repeat my finding, however, that there is nothing in the evidence before me that could reasonably suggest the 438 Documents could have been prejudicial or advantageous to the applicant.
[43] Applicant’s Outline of Submissions, [64]
It may also be the case that the applicant submits the Tribunal came under an obligation to disclose to the applicant the 438 Documents because it considered the question whether the documents were relevant. If the applicant so intends to submit, I would not accept it. That the Tribunal considered the question whether the 438 Documents were relevant could not by itself have triggered an obligation on the part of the Tribunal to disclose them to the applicant before the Tribunal could decide that question. If that were so the Tribunal would be bound to disclose to an applicant every document it considers may be irrelevant before it could determine whether the document is irrelevant. The applicant has identified no statutory provision that could reasonably be said to give rise to any such obligation. I therefore do not accept that the Tribunal was bound to give to the applicant notice of its intention to find the 438 Documents to be irrelevant with a view to giving the applicant an opportunity to make submissions on whether the documents were relevant.
That, then, leads me to consider materiality. The applicant has not articulated how, had the Tribunal disclosed the 438 Certificate to the applicant and offered the applicant an opportunity to make submissions about whether the 438 Documents were relevant, that could have led the Tribunal to make a decision favourable to the applicant. The only conceivable way the applicant could show that giving the applicant such opportunity could have resulted in the Tribunal making a decision favourable to the applicant is if there was material before the Tribunal on the basis of which the applicant could have submitted that the 438 Documents contained information that could potentially have been of advantage to the applicant. The applicant, however, has not identified there was any such material before the Tribunal.
Ground 3, therefore, also fails.
Conclusion and disposition
This case has assumed a degree of complexity because the question of the materiality of the Tribunal’s failure to disclose to the applicant the 438 Certificate has been argued and considered on the basis that the documents by reference to which that question could have been determined is the subject of what I have found to be a valid claim of legal professional privilege which the Minister is entitled to claim. That the question of materiality has been argued and determined on this basis, however, is a reflection of the nature of legal professional privilege; it is a substantive common law right or immunity that the Minister, like any other person who has a valid claim of legal professional privilege, is entitled to assert and maintain as a ground for resisting an order that a party be granted access to documents that record confidential communications made for the dominant purpose of seeking and giving legal advice.
Given the applicant has failed on each of the three grounds he relies, I propose to order that the application be dismissed. I also propose to order that the applicant pay the Minister’s costs set in the amount of $7,206, being the costs provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as at 10 January 2017, being the day on which the applicant commenced this proceeding. I will, however, reserve to the parties liberty to apply within fourteen days to vary or discharge the order for costs I propose to make because the parties have not made submissions on costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 24 April 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Privilege
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Natural Justice
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Jurisdiction
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