DME16 v Minister for Immigration

[2017] FCCA 1791

FEDERAL CIRCUIT COURT OF AUSTRALIA

DME16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1791

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – certificate issued under s.438 – adverse information provided to the Department – public interest immunity.

Legislation:

Migration Act 1958 (Cth), ss.438, 440, 476

Cases cited:

AHZ17 v Minister for Immigration & Anor [2017] FCCA 1400

BJN16 v Minister for Immigration & Anor [2017] FCCA 1512

Applicant: DME16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3193 of 2016

Judgment of: Judge Street

Hearing date: 1 August 2017

Date of Last Submission: 1 August 2017

Delivered at: Sydney

Delivered on: 1 August 2017

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Brett Slater Solicitors

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The redacted documents the subject of the s.438 certificate may be disclosed to the legal practitioners only on behalf of the applicant subject to further order of the Court.

2. The redacted version of the documents the subject of the s.438 certificate be produced to the Court.

3. Subject to the public interest immunity, the unredacted version of the documents the subject of the s.438 certificate be provided to the Court.

4. The unredacted version of the documents marked “MFI1” is returned to counsel for the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3193 of 2016

DME16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These are proceedings for Constitutional relief in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). At this stage, the only issue before the Court to support an allegation of jurisdictional error concerns the non-disclosure of a certificate under s.438(1)(b) and the documents the subject of the certificate during the course of the review by the Tribunal.

2. The applicant, in the applicant’s submissions, identified a potential inadequacy in relation to the information that was disclosed by the Tribunal in the course of the hearing. The Tribunal’s reasons refer to what occurred at the hearing in that regard. Because of the potential relevance of the information to the grant of relief, the Court ordered production, initially of a redacted version, in circumstances where a copy of the redacted version had been provided to counsel for the applicant. That was done in circumstances where there was an order made limiting the redacted version to the legal representatives of the applicant. The Court then made an order that the redacted version be produced to the Court. The Court examined the redacted version and was of a view that there were redactions that require the Court to direct production of the unredacted version to the Court in circumstances where the Tribunal had made an order under s.440 of the Act.

3. Counsel for the first respondent sought to maintain a claim for public interest immunity in respect of the redacted parts of the document the subject of the s.438 certificate. The Court inspected the unredacted version, had it marked “MFI 1”, and returned it to counsel for the first respondent. The Court is satisfied that the claim for public interest immunity is properly made in respect of the redacted contents that might otherwise disclose the identity of the source and that the redactions had been properly marked on grounds of public interest immunity. Counsel for the first respondent has now sought to tender the redacted version. Mr Godwin, of counsel objects to the tender on the grounds of relevance and also relies upon decisions in AHZ17 v Minister for Immigration & Anor [2017] FCCA 1400 and BJN16 v Minister for Immigration & Anor [2017] FCCA 1512.

4. The grant of relief in relation to jurisdictional error is discretionary. The Court regularly receives evidence after the decision of the Tribunal where allegations of a denial of procedural fairness relevant to conduct post hearing are made, and regularly receives evidence in relation to the issue of whether there is any practical injustice in respect of alleged errors, be it from the applicant or the first respondent. The material is received into evidence because it is relevant.

5. The decisions to which the Court was taken are not decisions that bind this Court. A question of whether or not evidence is relevant to a particular matter turns on the circumstances and facts in that particular case. I am satisfied that the tender of the redacted version in the present case is relevant to the issue of practical injustice that is raised on the issues before the Court and the question raised as to whether there was sufficient disclosure of the documents the subject of the certificate in the course of the hearing. It is in those circumstances the Court receives the documents into evidence. The documents the subject of the redacted version of the certificate will be marked Exhibit B.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 August 2017