Dav v Minister for Immigration
[2018] FCCA 3568
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3568 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of partner visas – applicant and sponsor found not to be in a genuine spousal relationship – whether there was a denial of procedural fairness considered – no jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.88F, 88G Migration Act 1958 (Cth), ss.5, 57, 357A, 359A, 375A, 376, 422B, 438 Migration Regulations 1994 (Cth) |
| Cases cited: A v Hayden (1984) 156 CLR 532 Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 BIE15 v Minister for Immigration [2016] FCCA 2978 Breen v Williams (1995) 186 CLR 71 Burton v Minister for Immigration (2005) 149 FCR 20 CEF15 & Anor v Minister for Immigration & Anor [2018] FCCA 656 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Minister for Immigration v Kumar [2009] HCA 10; (2009) 238 CLR 448 Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 |
| First Applicant: | SAMNANG DAV |
| Second Applicant: | SAMNAM DAV |
| Third Applicant: | SAMSETMONY DAV |
| Fourth Applicant: | SAMNAP DAV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 979 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr T Crispin |
| Solicitors for the Applicants: | InPrivate Law |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application lodged on 30 March 2017 and filed on 31 March 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 979 of 2017
| SAMNANG DAV |
First Applicant
SAMNAM DAV
Second Applicant
SAMSETMONY DAV
Third Applicant
SAMNAP DAV
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 March 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants permanent partner visas. There are four applicants, who are a father (Mr Dav) and his three children.
The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Cambodia. Mr Dav is the father of the second, third and fourth applicants.
On 25 June 2008, Mr Dav made an application for a partner (provisional) (Class UF) visa (temporary partner visa) and a permanent partner visa.[1] His children were included in his application as members of his family unit. His application was sponsored by his partner.[2]
[1] Court Book (CB) 1-9
[2] CB 10-18
On 20 December 2010, each applicant was granted a temporary partner visa.[3]
[3] CB 19-28
On 30 July 2014 an anonymous allegation was made to the Minister’s Department. The substance of the allegation was that Mr Dav and his sponsor (Ms Keo) were not in an ongoing relationship as required for the grant of the relevant visa.
Following the provision of further material in support of their application on 17 April and 10 May 2014,[4] the Minister’s Department wrote to the applicants on 12 February 2015, pursuant to s.57 of the Migration Act 1958 (Cth) (Migration Act), to put to them particulars of information that the Minister considered would be the reason, or a part of the reason, for refusing to grant a permanent partner visa to them.[5] The applicants responded to the Minister’s Department’s letter on 10 March 2015.[6]
[4] CB 29-146
[5] CB 147-155
[6] CB 156-175
On 31 July 2015, the delegate refused to grant partner visas to the applicants.[7]
[7] CB 205-221
Merits review
On 18 August 2015, the applicants applied to the Tribunal for review of the delegate’s decision.[8]
[8] CB 222-232
On 2 August 2016, the applicants appeared before the Tribunal to give evidence and present arguments in relation to the decision under review. At this hearing, the Tribunal also received oral evidence from Ms Keo.[9]
[9] CB 276 at [5]
On 20 February 2017, a delegate of the Secretary of the Minister’s Department (Secretary) (who was also a delegate of the Minister) notified the Tribunal, in writing, pursuant to s.376(2)(a) of the Migration Act, that s.376 applied in relation to a document described as “[t]he source information contained in TRIM reference number OPD2017/33767” (dob-in letter) because it was given to an officer of the Minister’s Department in confidence and s.375A did not apply in relation to it (notification).[10]
[10] CB 267
The following day, the Tribunal issued a letter to the applicants, under s.359A(1) of the Migration Act, giving particulars of the dob-in letter, stating why it was relevant to the review and the consequences of the Tribunal relying upon it in affirming the delegate’s decision, and inviting them to comment on, or respond to, the information (s.359A Letter).[11] In the s.359A Letter, the Tribunal said that it:
a)received a notification concerning an allegation made to the Minister’s Department that was the subject of a certificate and notification under s.376 of the Migration Act;
b)considered the certificate to be valid, as the information to which it related had been given, in confidence, to an officer of the Minister’s Department and identified its source;
c)decided that the full content of the allegation would not be disclosed to the applicants; and
d)considered the information to be relevant as it concerned whether Mr Dav and Ms Keo were in a genuine spouse relationship and the allegation claimed that they were in a contrived relationship.
[11] CB 268-269
Although the Tribunal referred to a “certificate” as well as a “notification”, it should be noted that, in the present case, the Minister did not provide to the Tribunal any written certification in respect of the dob-in letter pursuant to s.376(1)(a) of the Migration Act. Rather, the Minister’s Department's notification to the Tribunal invoked s.376(1)(b) of the Migration Act.[12]
[12] cf SZTYV v Minister for Immigration [2018] FCA 1076 at [44] per Steward J
Mr Dav and Ms Keo responded to the s.359A Letter on 25 February 2017.[13]
[13] CB 270-271
On 8 March 2017, the Tribunal affirmed the delegate’s decision.[14] In short, the Tribunal concluded that, although the parties were validly married, Mr Dav was not the “spouse” of Ms Keo for the purposes of clause 100.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That is to say, the Tribunal was not satisfied that Mr Dav and Ms Keo were in a married relationship as defined in regulation 1.15A of the Regulations.
[14] CB 275-285
The Tribunal referred to the dob-in letter and the s.359A Letter at [51].[15] Having then referred to the responses given by Mr Dav and Ms Keo at [52]-[54],[16] the Tribunal concluded as follows at [55]-[58]:[17]
This Tribunal considered the evidence submitted in response to the s.359A letter. It notes that this evidence is consistent with the applicant’s evidence at the hearing. As stated below, the Tribunal does not find this evidence to be credible.
The Tribunal did not find the applicant and the sponsor to be credible witnesses. It considers their account of their relationship was at times made in the light of comments in the decision record particularly in respect to the comments made by the officers of the Department who made the site visit. It notes that at times there were inconsistencies in the accounts provided by the applicant and some inconsistencies with his wife’s evidence.
On the basis of the evidence on the Department file and evidence submitted to the Tribunal, the Tribunal is not satisfied the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. It is not satisfied the relationship between them is genuine and continuing. It is not satisfied that they lived together or do not live separately and apart on a permanent basis.
Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship.
[15] CB 282-283
[16] CB 283-284
[17] CB 284
The current proceedings
These proceedings began with a judicial review application filed on 31 March 2017. The applicants continue to rely upon that application. There is one ground in it:
The second respondent issued a section 359A Notice to the Applicant on or about 21 February 2017 which did not contain sufficient particulars of the allegations made in respect of the claimed relationship. In failing to particularise the allegation the applicant was denied the opportunity to make a meaningful response and was thus denied procedural fairness.
I have before me as evidence the court book lodged on 29 May 2017. An affidavit by Aaron Marcus Moss made on 2 November 2016 was initially not read by the Minister but, in the course of oral argument, it was read. I also received into evidence confidential exhibit AM1 which was provided in a sealed envelope with the affidavit, subject to a suppression order under ss.88F and 88G(1)(a) of the Federal Circuit Court of Australia Act 1999 (Cth).
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial of the matter on 8 November 2018.
Consideration
The application for judicial review raises one ground, namely, that the Tribunal did not comply with s.359A(1) of the Migration Act because the s.359A Letter “did not contain sufficient particulars of the allegations made in respect of the claimed relationship”. It is further argued that, “[i]n failing to particularise the allegation the applicant[s] w[ere] denied the opportunity to make a meaningful response and w[ere] thus denied procedural fairness.”
The Minister contends that the difficulty with this ground is that the information in the dob-in letter comprised “non disclosable information” within the meaning of s.359A(4)(c) of the Migration Act, such that it did not enliven the Tribunal’s duty under s.359A(1).
Section 5(1) of the Migration Act relevantly defines the expression “non-disclosable information” 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.
Unlike subparagraphs (a) and (b) of the definition of “non-disclosable information”, subparagraph (c) does not require the Minister (or anybody else) to form a subjective opinion about a particular matter; rather, it states an objective question which this Court is empowered to determine in the event of a controversy between parties to proceedings,[18] in the same way that it is for a reviewing court to determine whether the Tribunal’s obligation under s.359A(1) has been enlivened (whether because an exception in s.359A(4) has been engaged or otherwise).[19]
[18] See, for example, CEF15 & Anor v Minister for Immigration & Anor [2018] FCCA 656 at [65]. Compare, in relation to the operation of s.438(1)(b) of the Migration Act, SZTYV v Minister for Immigration [2018] FCA 1076 at [42]
[19] SZTNL v Minister for Immigration (2015) 231 FCR 204 at 219 [49] per Griffiths J (and the cases cited therein)
I accept the Minister’s counsel’s application of these principles to the present case. In this case, the information in question was not the subject of a certificate under s.375A of the Migration Act and neither was it the subject of a certificate under s.376(1)(a). Rather, the information was the subject of a notification under s.376(1)(b). In the circumstances, the Tribunal enjoyed a discretion, enlivened by the notification, to disclose the document or information in it pursuant to s.376(3). Under that subsection, the Tribunal is entitled also to have regard to any matter contained in the document in making its decision.
It may be inferred from the letter sent to the applicants dated 21 February 2017[20] that the Tribunal considered the exercise of that discretion, notwithstanding its erroneous use of the word “certificate”. The Tribunal elected only to disclose the allegation of a contrived relationship.
[20] CB 268-269
Whether the disclosure of information would found an action by a person for breach of confidence turns on the application of principles governing the equitable obligation of confidence. 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 imparting 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).[21]
[21] 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 at [39] per Finn, Sundberg and Jacobson JJ
For the following reasons, it cannot be said that the information in the dob-in letter does not satisfy each of these requirements or that the dob-in letter is not “[a] document containing … such information”.
First, the information in question, the content of the dob-in letter, has been identified with sufficient specificity.
Secondly, the information has the necessary quality of confidence about it. An inference to that effect can be drawn not only from the dob-in letter read as a whole, but also from the content of the notification and the s.359A Letter. The information, the preservation of the confidentiality of which it can be inferred is of substantial concern to the author, comprised allegations relating to the private affairs of Mr Dav.[22] That information was of a personal nature and is not in the public domain. That is to say, it is not “so generally accessible that, in all the circumstances, it cannot be regarded as confidential.”[23]
[22] Breen v Williams (1995) 186 CLR 71 at 128 per Gummow J
[23] Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 at 282 per Lord Goff.
Thirdly, it can be inferred from the nature of the information and the author having disclosed their identity that any reasonable person standing in the shoes of the recipient of the dob-in letter “would have realised that upon reasonable grounds the information was being given to him [or her] in confidence.”[24]
[24] Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48 per Megarry J
Fourthly, disclosure of the information without the author’s consent would amount to actual misuse of it.
I find this analysis persuasive. It follows that the dob-in letter did not enliven the Tribunal’s duty of disclosure under s.359A(1). While the Minister submits that a consequence of this analysis is that nothing in the dob-in letter was required to be disclosed by the Tribunal pursuant to s.359A(1),[25] that is a question that need not be resolved in the present case, as the Tribunal, nonetheless, disclosed the gist or substance of the adverse allegation in the s.359A Letter. That was sufficient in the circumstances of this case and the detail of the dob-in letter did not have to be disclosed. As the High Court held in Minister for Immigration v Kumar,[26] the “information” referred to in s.359A(1): [27]
… 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.
[25] See, for example, CEF15 at [64]; BIE15 v Minister for Immigration [2016] FCCA 2978 at [44]-[45] per Judge Manousaridis
[26] (2009) 238 CLR 448 at 458 [34]; [20009] HCA 10
[27] See also WZANC v Minister for Immigration (2012) 210 FCR 585 at 599 [68] per Gilmour J
In Kumar, the High Court rejected the view that the Tribunal was required to disclose the full nature of the adverse information.[28] 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]”[29] and that “[t]he translation from private to public law must accommodate the scope and purpose of the public law regime.”[30] 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”,[31] 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”.[32]
[28] at 456 [24]
[29] at 455 [19]
[30] at 455 [21]
[31] Kumar at 456 [25] per French CJ, Gummow, Hayne, Kiefel and Bell JJ, 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
[32] Kumar at 456 [25]
So it is in the present case with respect to the informer’s disclosure, in the dob-in letter, concerning the genuineness of Mr Dav’s marriage to Ms Keo. The preservation of the confidence of that disclosure is anything but inimical to upholding the integrity of the partner visa provisions in the Migration Act.[33]
[33] As the dob-in letter enlivened the exception in s.359A(4)(c) of the Migration Act, the present case is distinguishable from Burton v Minister for Immigration (2005) 149 FCR 20 at 31 [40]-[42] per Wilcox J. That was not a case where any exception in s.359A(4) was held to apply
The substance or gist of the information, that the Tribunal had received, was an allegation to the effect that Mr Dav and Ms Keo were in a contrived relationship. That was disclosed. The case upon which the applicants rely in their submissions, Applicant VEAL of 2002 v Minister for Immigration[34] concerned not the operation of s.359A of the Migration Act, but, rather, the natural justice hearing rule at common law. Section 422B of the Migration Act[35] did not apply to that case for the reasons given by their Honours.[36]
[34] (2005) 225 CLR 88 (to which the High Court referred in Kumar at 458 [32])
[35] cf s.357A
[36] at 93 [10]; footnote 16
For these reasons, the Tribunal did not fail to comply with s.359A(1) of the Migration Act.
The conclusions that I have reached are consistent with my earlier judgment in CEF15. Further, and more importantly, the outcome is consistent with the judgment of the High Court in Kumar.[37]
[37] in particular at [34]
Conclusion
I conclude that 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 thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 December 2018
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