CEF15 v Minister for Immigration and Border Protection
[2018] FCCA 656
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEF15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 656 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicant claiming a fear of harm in Albania due to a blood feud – applicant not believed in important respects and fears otherwise found to be not well-founded – whether the Tribunal failed to consider the applicant’s responses to certain of its credibility concerns considered – whether the Tribunal erred in withholding certain details of an anonymous complaint received which was the subject of a non-disclosure certificate considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 359A, 414, 422B, 424A, 425, 430, 438, 475A |
| Cases cited: A v Hayden (1984) 156 CLR 532 ASIC v P. Dawson Nominees (2008) 247 ALR 646 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 BIE15 v Minister for Immigration & Anor [2016] FCCA 2978 Breen v Williams (1995) 186 CLR 71 Prior v Mole (2017) 91 ALJR 441 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 |
| First Applicant: | CEF15 |
| Second Applicant | CEG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2877 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 March 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr L Karp |
| Solicitors for the Applicants: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 29 March 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2877 of 2015
| CEF15 |
First Applicant
CEG15
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 September 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. This published version of the Court’s judgment has been redacted at the request of the parties, consistently with a suppression order made on 11 August 2017.
The following statement of background facts is derived from the submissions of the parties.
The first applicant (applicant) is an Albanian national born in 1983. The second applicant is a Romanian national born in 1984.[1] They each entered Australia on genuine but fraudulently obtained Italian passports on 26 October 2013. They presented their genuine passports after entry to Australia.[2]
[1] Court Book (CB) 29
[2] CB 100
Only the applicant made claims for protection in the couple’s protection visa application dated 13 November 2013.[3] Those claims, handwritten on the form, were to the effect that he feared being targeted as a result of “blood feuds”. He claimed that in 1993 his father’s cousin killed one Ndoc Ndoka. Earlier, the applicant’s fourth cousin who was mentally disturbed as a result of military service, killed two soldiers and wounded two others. All of the victims’ families declared blood feuds.[4]
[3] CB 3ff
[4] CB 20
The applicant claimed that in 1998 he left Albania for Italy to escape the blood feud. He stated in his application that some of Ndoc Ndoka’s relatives were in Italy and he spent much of his time there in fear. This was especially so after the man’s mother died, and charged her husband, on her deathbed, to avenge their son’s death. He stated that at 4.00am on 12 June 2012 the police came to his home with a search warrant to look for explosives. He claimed that they found two guns and ammunition that he had never seen before. He spent three months in gaol, and was released, he said, because they had no evidence to link him with the guns.[5] He claimed that his back door had been forced and the guns planted, he thinks so that he would be deported to Albania where he would be an easy target. He said that his house was under surveillance for several months. Later evidence was that in November 2013 he was sentenced to two years and six months imprisonment by an Italian court.[6] As the documents confirm, this was a conviction in absentia, for by that time he was in Australia.
[5] CB 22
[6] CB 206-211
Sometime after his initial arrest, in March 2013[7] or September 2013,[8] the applicant claimed that he left his investments and savings in Italy, and went to Albania to hide. Whilst there his mother told him to visit his father’s cousin in gaol to get his advice. That advice was to leave and never return to Albania. He did return, briefly, to obtain a necessary police clearance, and he obtained another in Italy. He travelled on a false passport to Singapore, where he was arrested at the airport and sent back to Europe.[9] Later evidence was that he arrived in Spain, apparently undocumented, and was detained pending investigations as to whether he should be subject to an order prohibiting his entry into numerous European countries, including Italy.[10]
[7] see CB 17
[8] CB 22
[9] CB 17
[10] CB 179-199
The applicant supported his case using documentation obtained from an organisation called the “Committee of Nationwide Reconciliation” (National Reconciliation Committee) which, according to its own literature, documented and mediated disputes that had degenerated into blood feuds.[11] The Committee’s chairman certified that the applicant’s claims were true.[12]
[11] CB 56-66
[12] CB 45-46
The delegate refused the application based on his finding that:
a)the applicant had not taken all steps to avail himself of a legally enforceable right to enter and reside in a relevant EU country;[13]
b)there are internationally accepted standards of state protection in all EU states;[14]
c)he did not believe that the applicant was at risk of refoulement;[15] and
d)the applicant has a legally enforceable right to return to and reside in several EU countries.[16]
[13] Migration Act 1958 (Cth) (Migration Act), s. 36(3); CB 106
[14] Migration Act, s.36(4); CB 106
[15] Migration Act, s.36(5); CB 108
[16] CB 108
The application for review was lodged on 14 May 2014.[17]
[17] CB 114ff
The matter before the Tribunal
Much of the effort, evidence, and documentation focussed on the applicant’s rights to enter and reside in Italy. During the hearing, for instance, the applicant gave evidence that he had problems with the Italian state in 2012 and spent three months in custody.[18] The Tribunal member suggested that there should be official evidence of this,[19] and what was eventually produced was a document, the official translation of which is at CB 206-213. This records convictions, and a sentence of two years and six months imprisonment and a fine of 300 euros.[20]
[18] Transcript (“T”), page 11
[19] T, page 12
[20] CB 211
In support of the applicant’s statement that he had been excluded from Spain,[21] he eventually produced a document from Spain, the translation of which is at CB 195-199.
[21] T, page 28
The Tribunal undertook its own enquiries, the results of which were put to the applicant in a s.424A letter dated 9 July 2015.[22] The information disclosed included that:
a)there was no record of the applicant in Italian criminal law databases, and that he is the holder of an Italian residence permit valid to 8 June 2020;
b)the National Reconciliation Committee (and its chairman) were suspected by several international organisations and government agencies in Europe and Canada of engaging in corrupt conduct in issuing attestation letters for money; and
c)the Minister’s Department had received an allegation to the effect that the applicant’s claims that he is subject to a blood feud are not true. That information was subject to a certificate under s.438(1)(b) of the Migration Act, and a report of the allegations therein is annexed to the affidavit of Mia Donald made on 11 August 2017.
[22] CB 229-232
The applicant also sent the Tribunal a certified translation of an email dated 4 August 2015 from his lawyer which disclosed that the applicant’s conviction and sentence in Italy were subject to an appeal, and that he was currently free.[23]
[23] CB 241
The Tribunal decision
The Tribunal found, on the basis of the evidence before it, that the applicant was not the subject of an operative exclusion order of the Italian authorities.[24] It therefore found that s.36(3) of the Migration Act applied to him. It did not explore whether the applicant had reason to fear harm in any member state of the EU other than Italy, or whether his relationship to the second applicant entitled him to residence in Romania.[25]
[24] CB 257 [45]-[47]
[25] CB 257 [48]
The Tribunal then moved on to consider whether the applicant had reason to fear harm in Albania or Italy. It summarised the evidence at hearing as follows:
a)the applicant had not approached the police in Italy for protection. The Tribunal was unaware of any information that the police in Italy lacked the power to provide effective protection.[26] It recorded his explanation as being that the police will promise protection but not deliver it;[27]
b)planting firearms on the applicant so that he would be returned to Albania where it would be easier to harm him was a complicated way to obtain revenge. The Tribunal asked why the perpetrators could not have killed him rather than simply planting weapons;[28]
c)the Tribunal found it difficult to accept that the Albanian families involved in the (alleged) blood feud had the resources to send people in cars to follow him in various countries around Europe;[29] and
d)the Tribunal also recorded its concerns that he would go back to Albania to escape the blood feud.[30]
[26] CB 258 [57]
[27] CB 258 [58]
[28] CB 259 [63]
[29] CB 259 [63]
[30] CB 258-9 [61]
The Tribunal did not accept:
a)that members of the feuding families or their agents would access the applicant’s home in Italy, plant firearms and alert the police in a conspiracy to get the applicant back to Albania in order to harm him there;[31]
b)that members of the feuding families would not have harmed the applicant in Italy given the opportunity;[32]
c)that the applicant would have returned to Albania for any purpose after the claimed blood feud was reinvigorated;[33] and
d)that the applicant would have retuned to Albania for any reason after being warned by his father’s cousin not to do so.[34]
[31] CB 262 [81]
[32] CB 262 [82]
[33] CB 262 [83]
[34] CB 262 [84]
The Tribunal rejected the veracity of the documents provided by the chairman of the National Reconciliation Committee and inferred from the applicant’s reliance on that documentation that his claims were fabricated.[35] It also found its conclusions as to fabrication of the applicant’s claims to have been supported by the allegation made to the Minister’s Department.[36]
[35] CB 262-3 [85]-[88]
[36] CB 263 [89]
The current proceedings
These proceedings began with a show cause application lodged on 21 October 2015. At the time of the trial of this matter on 16 March 2018, the applicants sought to rely upon a proposed further amended application which had been provided to the Court and the Minister’s solicitors. That proposed application contained the following grounds:
1.The Tribunal failed to review the decision of the Minister’s delegate according to law.
Particulars
(a)Failure to consider information and evidence given in the first applicant’s (the applicant’s) written statement, and at hearing;
(i) To the effect that a family which allegedly had a blood feud with his, had members in Italy and, implicitly, were able to find him there.
(ii) As to the reasons why members or agents of this family, or families may have planted firearms and ammunition in the applicant’s home in Italy.
(iii) Why the applicant would return to Albania after the blood feud was reignited, and after being told by a relative not to return.
2.The Tribunal’s decision to withhold information pursuant to s.440 of the Migration Act was legally unreasonable, in that there was no evident or intelligible public interest in withholding allegations that the applicant had been [redacted], that the second applicant had been [redacted], and that the applicant’s brother, [redacted], had lied in his claims to the Department.
At the outset of the trial, counsel for the applicants indicated a need for Ground 2 of the application to be further amended in order to properly reflect the submissions he proposed to make on behalf of the applicants. I gave leave for those amendments to be made, subject to a costs penalty. I also provided the opportunity for the parties to file additional written submissions. The applicants and the Minister took up that opportunity. Ground 2 was amended in a second further amended application filed with the applicant’s closing submissions on 29 March 2018. The ground in its final form is:
The Tribunal acted in a manner that was legally unreasonable by failing to exercise its power under s.438(3)(b) of the Migration Act to disclose the following information to the applicants pursuant to its duty under s.359A of the Migration Act.
(a)[redacted]
(b)[redacted]
(c)[redacted]
In addition to the court book filed on 16 December 2015, I have before me as evidence the affidavit of Christopher Hugh Levingston made on 15 February 2016, to which is annexed a transcript of the Tribunal hearing conducted on 29 September 2015. I also received the affidavit of Ms Donald made on 11 August 2017 concerning a non-disclosure certificate purportedly issued under s.438 of the Migration Act on 13 October 2014. The purported certificate is annexed to the affidavit and the document purportedly covered by the certificate was furnished to the Court in a sealed envelope.
A further affidavit by Ms Donald, also made on 11 August 2017, concerning another certificate issued on 15 April 2014, was not read as no issue arises between the parties in relation to that certificate.
Consideration
Ground 1 – did the Tribunal fail to consider material information and evidence concerning the applicants’ claims?
The first ground alleges that the Tribunal “failed to review the decision of the Minister’s delegate according to law”. In the particulars to this ground, the applicants say that the Tribunal failed to consider “information and evidence given in [the applicant’s] … written statement, and at hearing”, namely:
a)that a family which allegedly had a blood feud with his family had members in Italy and, implicitly, were able to find him there;
b)the reasons why members or agents of that family, or families, may have planted firearms and ammunition in his home in Italy; and
c)why he would return to Albania after the blood feud was reignited and after being told by a relative not to return.
There is an additional complaint in the applicants’ submissions, namely, that the Tribunal did not consider a claim that the applicant made during the hearing to the effect that Italian police cannot protect individuals.
The applicants relevantly submit as follows:
a)the Tribunal must consider all of the applicant’s claims and the information or evidence in support of them;[37]
b)the corollary to the duty to provide a meaningful opportunity to an applicant to give evidence and present arguments under s.425(1) of the Migration Act is that the Tribunal must listen and consider the evidence and arguments presented;
c)consideration of a claim or evidence involves the directing of an active intellectual process towards it;[38] and
d)these matters are integral to the duty of “review” in s.414 of the Migration Act.
[37] Sellamuthuv Minister for Immigration (1999) 90 FCR 287, 292 [19]
[38] Ticknerv Chapman (1995) 57 FCR 451, 462, 495
In the present case the Tribunal recorded in its decision most of the applicant’s evidence given in response to the doubts that the Tribunal expressed at hearing. It also recorded most of the applicant’s written claims. The question that arises is whether it lawfully considered that evidence and those claims. The applicants contend that:
a)the applicant’s statement at hearing to the effect that the Italian police could not protect individuals was not mentioned, and it may be inferred that it was not considered; and
b)although the Tribunal rejected as implausible the applicant’s claim that members of a feuding family planted guns in his home to provoke an expulsion to Albania where it would be easier to harm him, and that they did that rather than harm him in Italy to avoid prosecution in Italy, this claim is on its face sensible. Yet the Tribunal engaged in no process of reasoning which may explain why the claim, and explanation, were “implausible”.[39] The explanations and evidence were not addressed or considered.
[39] CB 262 [81]-[82]
The Tribunal also treated as implausible that the applicant would return to Albania for any reason after a blood feud was reignited and after being told not to do so by his father’s cousin. His explanation, or part of his explanation, was that he needed documents, including a passport, upon which to travel. The applicants contend that the Tribunal made no attempt to address this claim which was again, on its face, reasonable.
I prefer the Minister’s submissions in relation to this ground.
The Tribunal did not overlook the fact that some of the families with whom the applicant was involved in a so-called blood feud had members who were based in Italy, while others were based in Albania. At [50],[40] the Tribunal referred to the claim advanced in his protection visa application that “he left Albania and Italy to escape a blood feud and revenge from [other] families.” That claim appears at CB 20. It is extremely unlikely that the Tribunal read the applicant’s answer to Question 42 in his visa application form, but not his answer to Question 46.
[40] CB 257
Moreover, during the hearing, the Tribunal member said the following:[41]
I have concerns about the plausibility of the narrative of your story … Specifically, there are aspects of your story that I find difficult to believe. First of all, I find it difficult to accept that the Albanian families were able to send cars and people to follow you in Hungary, Romania and Italy. Secondly, I find it difficult to accept that in Italy the families would be able to have sufficiently close access to you to plant weapons but would not take that opportunity to actually kill you …
[41] T, page 25 at lines 12-19; see also CB 259 [63]
It is tolerably clear from this passage that the Tribunal had concerns in respect of the applicant’s claimed enemies both in Albania and Italy. The expression “Albanian families” was used to juxtapose “the families” “in Italy” described in the final sentence in the passage.
The criticism of the Tribunal’s concerns regarding the applicant’s claim that his enemies planted weapons in his home in Italy but did not take the opportunity to kill him is an appeal to the merits. The claim was expressly considered, and rejected.[42] The Tribunal is entitled to doubt the plausibility of, and then to reject, a claim presented by a review applicant without having to list the sub-set of reasons why it has done so,[43] or to give “a line-by-line refutation of the evidence for the [applicant]”,[44] as long as it has considered the claim. Section 430(1) of the Migration Act relevantly requires the Tribunal to state the reasons for its decision on the review and the findings on any material questions of fact. The Tribunal did that. As McHugh J observed in Durairajasingham at [67]:
… If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
[42] CB 258 [56], [59], 259 [63], [66], 262 [81]-[82] and 263 [95]
[43] cfNAHI v Minister for Immigration [2004] FCAFC 10 at [14] per Gray, Tamberlin and Lander JJ
[44] Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65] per McHugh J
The same is true in respect of the applicant’s criticism of the Tribunal’s consideration of his claim that he had returned to Albania after the blood feud was reignited, despite having been told not to do so by his father’s cousin. That claim was considered at [55], [61], [63] and [67][45] and rejected at [83]-[84].[46] Specifically, the applicant’s explanation for having returned to Albania, namely that he needed identity documents, was addressed at [67].[47]
[45] CB 258-259
[46] CB 262
[47] CB 259
Finally, I reject the contention that the Tribunal failed to consider the applicant’s evidence that Italian police cannot protect individuals. This matter was addressed at [58].[48] To say, as the applicant did, that the police in Italy are “unable to provide [protection]” is no different in substance from saying that they cannot provide individual protection.
[48] CB 258
In any event, any finding that could have been made with respect to this matter was subsumed in findings of greater generality,[49] namely, the implausibility of the applicant’s narrative.
[49] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 353 [91] per McHugh, Gummow and Hayne JJ; WAEE v Minister for Immigration (2003) 236 FCR 593 at 604 [47] per French, Sackville and Hely JJ
Ground 2 – the non-disclosure certificate
The further amended application deletes the previous form of Ground 2 and substitutes for it a ground alleging that, “by failing to exercise its [discretionary] power under s.438(3)(b) of the Migration Act to disclose the following information to the applicants pursuant to its duty under s.359A [scil s.424A] of the Migration Act”, the Tribunal acted unreasonably. The “matters” referred to in the ground of review are described above at [19].
The provision central to this ground is s.438 of the Migration Act which stated at the relevant time:
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and 2
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
As noted above at [20], the documents in question here, being the s.438 certificate and a summary of the information with which it was concerned, were annexed to the affidavit of Ms Donald made on 11 August 2017. The certificate was issued under s.438(1)(b) of the Migration Act which, when read with s.438(3)(b), gives the Tribunal a discretion to disclose to an applicant information given in confidence.
The basis upon which information given in confidence may be withheld is the public interest in protecting the identity of informers, the disclosure of which may cause them detriment, including by endangering their safety. There is also a related public interest in not dissuading people to come forward with information to a government department for fear of having their identities revealed. The applicant submits that there is no other rationale for not disclosing information provided in confidence other than public interest as described above.
As is recognised in s.438(3)(b), the rule against disclosure is not absolute. A court, or for that matter a tribunal, charged with a discretion to disclose information to a person affected by that information must undertake a balancing exercise.[50] The following is said to be relevant in the migration context;
a)the Tribunal is under an obligation to disclose such information as it is able to disclose consistently with any duty of confidentiality that may arise;[51]
b)in aid of this duty it must consider whether and, if so, how to exercise its discretion;[52] and
c)the discretion must be exercised reasonably.[53]
[50] see generally ASIC v P. Dawson Nominees (2008) 247 ALR 646 at [22]-[32]; Sankey v Whitlam (1978) 142 CLR 1 at 38-39
[51] NAVK vMinister for Immigration (2004) 135 FCR 567 at [102], [17]; Burton vMinister for Immigration (2005) 149 FCR 20 at [40]-[42] in the context of a more restrictive s.475A certificate
[52] NAVK at [102]
[53] Minister for Immigration v Li (2013) 249 CLR 332
The information in the current matter, annexed to Ms Donald’s affidavit of 11 August 2017, was said to be from [redacted].[54] It alleged that:
a)the claim of a blood feud was a fabrication;
b)[redacted];
c)[redacted];
d)[redacted]; and
e)there were four other matters which, while potentially significant, the applicant does not contend needed to be disclosed.
[54] the connection is disclosed in the applicant’s submissions but I do not consider it necessary or appropriate to repeat it
The allegations made by this informer may or may not be true. That cannot be known, but the applicant submits that he should, conformably with s.424A of the Migration Act and consistently with protecting the identity of the informer, be provided with particulars of adverse personal information that would be part of the reason for affirming the decision under review.
The question then arises as to what information could and indeed should have been disclosed consistently with protecting the identity of the informer. It may be noted in that respect that only the allegation of the falsity of the blood feud claim was disclosed at CB 229-232. [redacted].The applicant submits that it is inconceivable that disclosure of this information could have revealed the informer’s identity. Further, that information is said to have directly undermined the applicants’ claims of leaving Italy to escape the consequences of a blood feud, and was part of the reason for affirming the delegate’s decision.[55]
[55] CB 263 [89]
It may be accepted that the Tribunal did consider what of the informer’s information could be disclosed. That may be inferred from the fact that the bare allegation was disclosed. The applicant submits, however, that a legally reasonable exercise of the power in s.438(3)(b), in light of rationale for restricting disclosure of information provided in confidence, required the Tribunal to disclose to the applicant, pursuant to s.424A of the Migration Act, the allegations summarised at [40(b)-(d)] inclusive. The applicant submits that the Tribunal’s failure to do so lacked an evident and intelligible justification.
I reject the contention that the Tribunal’s exercise of discretion was unreasonable. In that regard I accept the Minister’s post hearing submissions on this ground.
The applicable legal principles underlying jurisdictional error on the basis of legal unreasonableness are as follows:
a)legal reasonableness relates to the existence and scope of a discretionary power, rather than the expediency of its exercise. The existence and content of any framework of rationality that constrains the exercise of the discretionary power depend on the true construction of the relevant legislation;[56]
b)as legal reasonableness concerns the lawful exercise of power, it is not a vehicle for challenging a decision on the basis that the decision-maker has made an evaluative judgement with which a reviewing court disagrees if the judgement was reasonably open to the decision-maker, that is, within the area of decisional freedom within which the decision-maker has a genuinely free discretion.[57] Thus, jurisdictional error will not result if minds might differ as to whether the decision reached was the correct one;
c)legal unreasonableness may describe the consequence of establishing a recognised form of jurisdictional error or an outcome-focused conclusion without any specific jurisdictional error being identified.[58] The latter occurs where the decision is capable of explanation only on the ground of some misconception,[59] or if the decision is unreasonable or plainly unjust or lacks “an evident or intelligible justification”,[60] or if “the result itself bespeaks error”.[61] These expressions need to be understood in the light of the supervisory nature of a reviewing court’s jurisdiction; and
d)where the inquiry is outcome-focused, and the decision-maker has not given reasons for his or her decision, “all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law.”[62]
[56] Li at 351-352 [29]-[30] per French CJ, 363-364 [67] per Hayne, Kiefel and Bell JJ, 371 [92] per Gageler J; Minister for Immigration v Eden (2016) 240 FCR 158 at 171-172 [63] per Allsop CJ, Griffiths and Wigney JJ
[57] Li at 352 [30]; Eden at 172 [59], [62]; Prior v Mole (2017) 91 ALJR 441 at 464 [129] per Gordon J
[58] Li at 350-351 [27]-[28], 365-366 [72]; Minister for Immigration v Singh (2014) 231 FCR 437 at 445 [44] per Allsop CJ, Robertson and Mortimer JJ; Minister for Immigration v Stretton (2016) 237 FCR 1 at 4 [6] per Allsop CJ; Eden at 171 [60]
[59] Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J (as his Honour then was)
[60] Li at 367 [76]; Singh at 445 [44]
[61] Li at 369 [85]
[62] Singh at 446 [45]
Application of principles
For the following reasons, the Tribunal’s not having exercised its discretionary power in s.438(3)(b) to disclose to the applicants the matters described at [43] above was not legally unreasonable.
First, those undisclosed matters were irrelevant to, and had no bearing upon, the Tribunal’s review of the delegate’s decision and the issues arising on the review. It was only, relevantly, “the allegation” that had been made to the Minister’s Department in the document the subject of the non-disclosure certificate that was relevant to the review,[63] given that the principal issue for the Tribunal to determine was whether the applicant was involved in a blood feud in Albania, not whether [redacted]. Indeed, the first matter was determined in the applicant’s favour.[64]
[63] CB 263 [89]
[64] CB 257 at [43]
The Tribunal’s reference at [89][65] to “the allegation” is that which appears at [9] of the letter issued to the applicants pursuant to s.424A and extracted at [71],[66] namely, the “allegation to the effect [that the applicant’s] claim that [he is] subject to a blood feud is not true”. The Tribunal’s description of the “allegation” does not include any of the matters listed in Ground 2 in the further amended application. Those matters, it should be noted, are self-contained and comprise a discrete part of the “dob-in” letter.
[65] CB 263
[66] CB 261
Accordingly, contrary to the applicant’s submissions, the fact of these matters having no relevance to the issues arising on the review can be said to supply the evident or intelligible justification for the Tribunal’s not having exercised its discretionary power under s.438(3)(b) any further than it did.
For the same reason, contrary to the ground asserted by the applicant, the three matters listed in Ground 2 did not have to be disclosed for the Tribunal to meet its duty under s.424A(1). I infer from the absence of any reference to these matters in the Tribunal’s reasons that they were not considered to be the reason, or a part of the reason, for affirming the delegate’s decision.[67]
[67] MZYIA v Minister for Immigration [2011] FCA 642 at [26] per Gray J. See also Minister for Immigration v SZLFX (2009) 238 CLR 507 at 514 [26] per French CJ, Heydon, Crennan, Kiefel and Bell JJ; SZMFZ v Minister for Immigration [2008] FCA 1890 at [36] per Siopis J; SZMPT v Minister for Immigration [2009] FCA 99 at [17]-[18] per Jacobson J; SZMNP v Minister for Immigration [2009] FCA 596 at [38] per Jacobson J; SZNBE v Minister for Immigration [2009] FCA 1198 at [31] per McKerracher J
Secondly, contrary to the applicant’s submissions, the evident or intelligible justification for the Tribunal’s not having further exercised its discretionary power in s.438(3)(b) may lie in the fact that the non-disclosure certificate expressly sets out the Secretary’s advice that the information contained in the “dob-in” letter was given to the Minister “in confidence” and “should not be disclosed to the applicant[s] or [their] representative”. The Tribunal may well have relied upon that advice when it determined not to say any more than it did. In this regard, it should be noted, and there is no good reason why it should be thought that the Tribunal did not note, that [redacted] and that, although the author was willing to help the Minister’s Department “with more information”, he or she was [redacted]
In the light of these significant factual matters, which must be considered when assessing the intelligibility of the Tribunal’s exercise of discretion where reasons have not been given, I do not accept that the decision is unreasonable.
Thirdly, the information the subject of the non-disclosure certificate is “non-disclosable information” as defined in paragraph (c) of the definition of that phrase in s.5(1) of the Migration Act and is, for that reason, exempt from disclosure by force of s.424A(3)(c).[68] This proposition was accepted by the High Court, in relation to the analogous provision in s.359A(4)(c), in Minister for Immigration v Kumar.[69] At 458 [34], French CJ, Gummow, Hayne, Kiefel and Bell JJ observed that the “information” referred to in s 359A(1):
… did not include the non-disclosable information (s.359A(4)). The Tribunal complied with s 359A(1) by notifying Mr Kumar that it had received information, in confidence, which stated that his marriage was contrived for the sole purpose of his migration to Australia, and inviting his response.
[68] cf, in relation to a certificate issued under s.438(1)(a) of the Migration Act but which enlivened paragraph (a) of the definition of “non-disclosable information”, BIE15 v Minister for Immigration & Anor [2016] FCCA 2978 at [44]-[45] per Judge Manousaridis
[69] (2009) 238 CLR 448. See also WZANC v Minister for Immigration (2012) 210 FCR 585 at 599 at [68] per Gilmour J
The High Court rejected the view of the Full Federal Court that the Tribunal was required to disclose the full nature of the adverse information.[70] Their Honours also observed that “caution is required in the immediate translation into public law of such private law concepts [as the equitable doctrine of breach of confidence]”[71] and that “[t]he translation from private to public law must accommodate the scope and purpose of the public law regime.”[72] While, ordinarily, a court “will not lend its aid to the enforcement of a contractual obligation of confidentiality undertaken by the Commonwealth, the effect of which would be to obstruct the administration of the criminal law”,[73] the preservation of the confidence of a disclosure by an informant concerning the genuineness of a visa applicant’s marriage to his or her spouse was held “to advance not obstruct the operation of the spousal visa provisions of the Act”.[74]
[70] at 456 [24]
[71] at 455 [19]
[72] 455 [21]
[73] Minister for Immigration v Kumar (2009) 238 CLR 448 at 456 [25], referring to A v Hayden (1984) 156 CLR 532 at 556 per Mason J (as his Honour then was), 571-574 per Wilson and Dawson JJ, 595-596 per Deane J
[74] Kumar at 456 [25]
The statutory regime in the present case supports the equitable obligation of confidence with respect to the informer’s disclosure concerning the genuineness of the first applicant’s claim about being involved in a blood feud. The preservation of the confidence of that disclosure is anything but inimical to upholding the integrity of the refugee visa provisions in the Migration Act.
It follows, in my opinion, that the presence of s.424A(3)(c) is a powerful consideration relevant to this Court’s inquiry as to the reasonableness of the Tribunal’s exercise of power under s.438(3)(b). As the authorities discussed at [45] above reveal, the reasonableness of the Tribunal’s exercise of power will be shaped by the relevant statutory framework and the factual matrix. For the reasons given below, the presence of s.424A(3)(c) and the characterisation of the information in question as “non-disclosable information” has the consequence that the Tribunal’s decision not to disclose any more information in the letter than it chose to do was well within the area of decisional freedom conferred by s.438(3)(b).
The phrase “non-disclosable information” is relevantly defined in s.5 of the Migration Act as:
… information or matter:
…
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
A claim for breach of confidence in equity will be made out if:
a)the information in question is identified with specificity (and not merely in global terms);
b)it has the necessary quality of confidence (and is not, for example, common or public knowledge);
c)it was received by the party resisting disclosure in circumstances importing an obligation of confidence; and
d)there is an actual or threatened misuse of the information (that is, use without the consent of the person imparting the confidential information).[75]
[75] Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87 per Gummow J, cited in Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 [39] per Finn, Sundberg and Jacobson JJ
It could not fairly be argued that the information in the dob-in letter does not satisfy each of these requirements or is not “[a] document containing … such information”.
First, the information in question, particular parts of the letter, has been identified with specificity.
Secondly, the information has the necessary quality of confidence about it. The information, the preservation of the confidentiality of which is of substantial concern to the author, comprised [redacted].[76] That information was of a personal nature and is not in the public domain – that is, it is not “so generally accessible that, in all the circumstances, it cannot be regarded as confidential.”[77]
[76] Breen v Williams (1995) 186 CLR 71 at 128
[77] Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 282 per Lord Goff
Thirdly, it can comfortably be inferred from the nature of the information and the author’s anonymity that any reasonable person standing in the shoes of the recipient of the letter “would have realised that upon reasonable grounds the information was being given to him [or her] in confidence.”[78]
[78] Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48 per Megarry J, the text of which is conveniently set out in Federal Commissioner of Taxation v Donoghue (2015) 237 FCR 316 at 330 [54] per Kenny and Perram JJ
Fourthly, disclosure of the information without the author’s consent would amount to actual misuse of it.
The consequence of this analysis, which this Court in BIE15[79] endorsed in relation to non-disclosure certificates issued pursuant to s.438(1)(a) and where the related documents meet paragraph (a) of the definition of “non-disclosable information”, is that nothing presently material in the dob-in letter enlivened the Tribunal’s duty of disclosure in s.424A(1).[80] The Tribunal was not required, either as a matter of procedural fairness or legal reasonableness, to disclose those matters listed in the particulars to Ground 2. Whether, in the light of s.424A(3)(c), the Tribunal was required, by s.424A(1)(a) or otherwise, to disclose the nub of the allegation about the genuineness of the blood feud is a question that need not be resolved, as it was disclosed to the applicants at [9] of the Tribunal’s letter. What matters is that the Tribunal, whether because of s.424A(1) or by reference to the statutory implication of legal reasonableness in s.438(3)(b), was not required to disclose anything further to the applicants.
[79] at [44]-[45]
[80] see s.424A(3)(c)
For these reasons, the matters discussed in the applicant’s submissions by reference to Burton v Minister for Immigration[81] are inapposite as that case can be distinguished on its facts. Unlike the present case, Burton concerned information that came within the scope of s.359A(1). Put another way, the Tribunal was required to make disclosure in that case because its obligation under s.359A(1) was enlivened and no relevant exception in s.359A(4) was held to apply. The information in question was not non-disclosable information for the purposes of s.359A(4)(c). The same cannot, however, be said about the information which the applicants in the present case contend ought to have been disclosed, for the reasons given above. In this regard, it is important to note that, unlike paragraphs (a) and (b) of the definition of “non-disclosable information”, which turn on the formation of an “opinion” by the Minister, paragraph (c) does not turn on any such opinion. It is couched in objective terms. In the same way that the question whether, in any given case, the Tribunal’s duty in s.424A(1)(c) has been enlivened is an objective question for a reviewing court to determine,[82] so it is with whether the exception to that obligation in s.424A(3)(c) has been enlivened.
[81] (2005) 149 FCR 20 at 31 [40]-[42]
[82] SZTNL v Minister for Immigration (2015) 231 FCR 204 at 219 [49] per Griffiths J (and the cases cited therein)
The matters discussed in the applicant’s submissions by reference to NAVK v Minister for Immigration[83] are likewise inapposite in the present case. Importantly, NAVK was a case that was determined by reference to general law notions of procedural fairness,[84] as s.422B of the Migration Act did not apply to the decision of the Tribunal there under review. The nub of the Court’s reasoning[85] was that the Tribunal was not necessarily immune from an allegation of procedural unfairness merely because information the subject of a non-disclosure certificate comes within s.424A(3)(c). In those circumstances, the Court held that there would be a breach of the common law rules of procedural fairness themselves or s.424A, being a provision the operation of which (prior to s.422B) was one that was shaped by those rules, if the Tribunal merely assumed that, because the information met the description in s.424A(3)(c), the applicant could be told nothing at all about the information. I accept the Minister’s submission that, with the enactment of s.422B(1), such reasoning may now not be correct, although it is not necessary to make any finding.
[83] (2004) 135 FCR 567 at 592 [102], [107]
[84] see at 592-593 [102]-[113]
[85] at 592 [102] and [107]
In any case, unlike NAVK, the Tribunal in the present case did not assume that the applicants could be told nothing about the dob-in letter, as it chose to exercise its power to disclose what the Tribunal saw as the relevant allegation made against them. Further, again unlike NAVK and contrary to the applicant’s submissions, it cannot be argued that the Tribunal failed to consider “whether it was ‘appropriate’ to inform the [applicants] of the gist of the material, without breaching confidence”.[86] Here, an inference can comfortably be drawn that the Tribunal expressly gave consideration to whether it was appropriate to disclose the contents of the dob-in letter, and, if so, to what extent. Thus, in its letter to the applicants issued pursuant to s.424A, the Tribunal said, in footnote 1:[87]
The allegation is subject to a certificate issued pursuant to section 438 of the Act, and the disclosure herein is the extent to which the Tribunal thinks it is appropriate to disclose the information. (emphasis added)
[86] at 593 [113]
[87] CB 230
The Tribunal may well have determined not to disclose anything further given that the review was about whether the first applicant was involved in a blood feud. There is nothing unreasonable about the manner in which the Tribunal proceeded and the extent of its disclosure of the gist or gravamen of the allegation in the dob-in letter concerning the blood feud.
Conclusion
The applicants have failed to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 October 2019
CORRECTIONS
Paragraph 1 – add “This published version of the Court’s judgment has been redacted at the request of the parties, consistently with a suppression order made on 11 August 2017.
Paragraph 18 – Ground 2, words redacted.
Paragraph 19 – particulars (a), (b) and (c) redacted.
Paragraph 40 – lines 2 and 3, words redacted.
Paragraph 42 – lines 5 – 11 redacted.
Paragraph 47 – end of line 7 – beginning of line 9 redacted.
Paragraph 51 – parts of lines 10 and 11; part of line 13 to end of line 15 redacted.
Paragraph 61 – end of sentence in line 3 redacted.
5
36
2