El Jejieh v Minister for Home Affairs and Anor

[2019] FCCA 838

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL JEJIEH v MINISTER FOR HOME AFFAIRS  & ANOR [2019] FCCA 838

Catchwords:
PRACTICE AND PROCEDURE – Application for the unredacted documents in confidential exhibits to be tenders into evidence – whether disclosure outweighs the public interest in preserving the informant rule – application for the unredacted documents to be tendered into evidence is refused.

Legislation:

Migration Act 1958 (Cth), ss.375, 376, 476

Applicant: SAMI MOSTAFA EL JEJIEH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2002 of 2018

Judgment of: Judge Street

Hearing date: 2 April 2019

Date of Last Submission: 2 April 2019

Delivered at: Sydney

Delivered on: 2 April 2019

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: By direct access

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application for the unredacted documents in Confidential Exhibit A and Confidential Exhibit B to be tendered into evidence is refused.

DATE OF ORDER: 2 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2002 of 2018

SAMI MOSTAFA EL JEJIEH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) for relief in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 June 2018 affirming the decision of the Delegate not to grant the applicant a Partner (Migrant) (Class BC) visa. 

2. The applicant seeks the unredacted copies of information that has been the subject of purported certificates to be tendered into evidence. The certificates include, two s.375A certificates one of which was purportedly revoked, and a s.376 certificate.

3. Evidence has been read in support of the claim for public interest immunity in respect of the redactions and in respect of the documents that have been marked as confidential Annexures A and B to an affidavit containing unredacted documents. Mr Godwin of Counsel on behalf of the applicant has submitted that from the material in the Court book, an inference is available as to the identity of the informant. The claim for public interest immunity is maintained in circumstances where Counsel for the first respondent has identified that having looked at the documents, the claim for the unredacted portions in unredacted documents is based on the ground of the informant rule and/or the content would identify the informant.

4. I do not regard the ability to speculate as to what inferences might be drawn as to the source of the informant as undermining the important principle of the informant rule. Mr Godwin has not submitted that this is a case where the Court should itself look at the documents the subject of the claim for privilege. Rather, Mr Godwin’s argument is to the effect that the irresistible inference to be drawn from particular documents in the Court book is that the identity of the informant has been disclosed.

5. Whilst there are references to sources of information in the Court book, I do not regard the ability to speculate about an inference that might be drawn as to who the informant is, outweighs destroying the important public interest immunity in protecting the identity of informants. The identity of the informant or informants are not in the public arena. It will be only where there is a greater public interest outweighing that principle that the Court would not give effect to the informant principle. I do not regard the submission as to possible inferences that might be capable of being drawn from information as outweighing the public interest in preserving the informant rule in the present case.

6. Accordingly, the application for the unredacted documents the subject of Confidential Exhibit A and Confidential Exhibit B is refused. The Court notes that Confidential Annexure A is accordingly marked MFI2 and Confidential Exhibit B is marked MFI3 and they are returned to the solicitor for the first respondent.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 May 2019