BDF15 v Minister for Immigration

The applicant sought remedies under s 476 of the *Migration Act 1958* (Cth) in relation to a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision not to grant the applicant a protection visa. The central dispute concerned whether the Tribunal had denied the applicant procedural fairness by failing to disclose a certificate issued under s 438 of the Act (the 438 Certificate) and the documents to which it related. The applicant also contended that the Tribunal erred in its findings regarding the validity and materiality of the 438 Certificate and the documents it covered. The matter was heard by Judge Manousaridis in the Federal Circuit Court of Australia.

The court was required to determine several legal issues. These included whether the Tribunal denied the applicant procedural fairness by failing to disclose the 438 Certificate and the documents it covered. Further questions arose as to whether these documents were subject to legal professional privilege, whether any failure to disclose was material, and whether the Tribunal erred in finding the 438 Certificate valid. The court also had to consider whether the Tribunal erred in finding the documents not material without first affording the applicant an opportunity to be heard on that specific question, and whether any such error was material.

The court considered the nature of legal professional privilege, noting it is a substantive common law right that protects confidential communications between a client and lawyer made for the dominant purpose of giving or obtaining legal advice. The court distinguished between the application of the *Evidence Act 1995* (Cth) and the common law in claims of privilege. It was established that the privilege can be waived by conduct inconsistent with maintaining confidentiality. In this instance, the Tribunal had noted that the documents covered by the 438 Certificate contained legal advice. While the Tribunal acknowledged the certificate might not have perfectly described the documents, it found the certificate valid because the documents contained "legal in confidence" material subject to privilege. Crucially, the Tribunal then determined that this material was not relevant to its review, as it pertained to background facts, summaries of previous decisions, and advice on legality, much of which had already been published.

The application was dismissed.