Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs

Case •

[2005] FCA 1435

•

12 OCTOBER 2005

FEDERAL COURT OF AUSTRALIA

Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1435

MIGRATION – Non-disclosure orders under s503B(1) of the Migration Act

Migration Act 1958 (Cth)

ESHCHENKO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1254 of 2005

ESHCHENKO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1255 of 2005

GRAHAM J
12 OCTOBER 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1254 OF 2005

BETWEEN:

RUSLAN ESHCHENKO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

12 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.In the event that

(a)a declaration comes into force under section 503A(3) of the Migration Act 1958 (Cth) in respect of the disclosure of specified information (“the information”) in specified circumstances to this Court, and

(b)       the information is disclosed to the Court then

the information is not to be divulged or communicated to:-

(i)        the Applicant in the substantive proceedings;

(ii)the legal representatives of the Applicant in relation to the substantive proceedings or any of them PROVIDED HOWEVER that the information may be divulged or communicated in Court, but not otherwise, to the counsel presently retained for the Applicant or either of them upon such counsel providing to the Court undertakings in the following terms:-

“UNDERTAKINGS TO THE COURT

I [counsel for the applicant] undertake to the Court that in respect of such information as is the subject of an order under s503B(1) of the Migration Act 1958 (Cth) and a declaration under s503A(3) that may be divulged or communicated to me:

1.I will not make a copy of any documents containing such information nor will I remove any documents containing such information from the Court.

2.I will not divulge or communicate the information or any part thereof to any person either directly or indirectly except the Court or my fellow counsel who has given a like undertaking to the Court and then only in the absence of all other persons.

3.I will not use the information except for the purpose of the Application filed on 26 July 2005 in these proceedings and any appeals resulting therefrom.

4.Save for these proceedings and any appeal from these proceedings, I will not act for or provide advice to the applicant or any person known by me to be associated with the applicant.”

or,

(iii)any other member of the public.

2.Upon the hearing of the substantive proceedings, all members of the public are to be excluded for the whole of the hearing.

3.No report of the substantive proceedings, other than the orders of the Court thereon, shall be published.

4.No person, without the consent in writing of a Judge of the Federal Court of Australia, shall have access to any file or record of the Court that contains the information.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1255 OF 2005

BETWEEN:

LEONID ESHCHENKO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

12 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.In the event that

(a)a declaration comes into force under section 503A(3) of the Migration Act 1958 (Cth) in respect of the disclosure of specified information (“the information”) in specified circumstances to this Court, and

(b)       the information is disclosed to the Court then

the information is not to be divulged or communicated to:-

(i)        the Applicant in the substantive proceedings;

(ii)the legal representatives of the Applicant in relation to the substantive proceedings or any of them PROVIDED HOWEVER that the information may be divulged or communicated in Court, but not otherwise, to the counsel presently retained for the Applicant or either of them upon such counsel providing to the Court undertakings in the following terms:-

“UNDERTAKINGS TO THE COURT

I [counsel for the applicant] undertake to the Court that in respect of such information as is the subject of an order under s503B(1) of the Migration Act 1958 (Cth) and a declaration under s503A(3) that may be divulged or communicated to me:

1.I will not make a copy of any documents containing such information nor will I remove any documents containing such information from the Court.

2.I will not divulge or communicate the information or any part thereof to any person either directly or indirectly except the Court or my fellow counsel who has given a like undertaking to the Court and then only in the absence of all other persons.

3.I will not use the information except for the purpose of the Application filed on 26 July 2005 in these proceedings and any appeals resulting therefrom.

4.Save for these proceedings and any appeal from these proceedings, I will not act for or provide advice to the applicant or any person known by me to be associated with the applicant.”

or,

(iii)any other member of the public.

2.Upon the hearing of the substantive proceedings, all members of the public are to be excluded for the whole of the hearing.

3.No report of the substantive proceedings, other than the orders of the Court thereon, shall be published.

4.No person, without the consent in writing of a Judge of the Federal Court of Australia, shall have access to any file or record of the Court that contains the information.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1254 OF 2005

BETWEEN:

RUSLAN ESHCHENKO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1255 OF 2005

BETWEEN:

LEONID ESHCHENKO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

GRAHAM J

DATE:

12 OCTOBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Leonid Eshchenko and Ruslan Eshchenko are father and son. By letters dated 20 May 2005 notices were sent by the Department of Immigration and Multicultural and Indigenous Affairs to each of the Messrs Eshchenko indicating that it had come to the attention of the Department that their respective applications for visas may be liable for refusal by the Minister under s501 of the Migration Act 1958 (“the Act”). In each case the relevant grounds were specified as s501(6)(b) and 501(6)(c)(ii) of the Act.

  2. Section 501(1) of the Act provides:-

    “501(1)The Minster may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

  3. The character test is set out in s501(6) of the Act which provides relevantly:-

    “501(6)For the purposes of this section, a person does not pass the character test if:

    …

    (b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

    (c)       having regard to … the following:

    …

    (ii)the person’s past and present general conduct;

    the person is not of good character; or

    …

    Otherwise, the person passes the character test.”

  4. In respect of Mr Ruslan  Eshchenko the relevant letter included the following:-

    “… Matters to be taken into account include the following:

    →His association with a group or organisation whom the Minister reasonable (sic) suspects has been or is involved in criminal conduct

    →Information which is protected under s503A of the Migration Act 1958 which cannot be released to him”

  5. In the letter to Mr Leonid Eshchenko the same two matters were identified as the second and third matters which might be taken into account.  In his case the first matter was:

    “  →    His association with his son, Ruslan”

  6. On 26 July 2005 the current proceedings were instituted by both Ruslan Eshchenko and Leonid Eshchenko by Applications under the Judiciary Act 1903 and Migration Act 1958.  The essential claim in the proceedings is that the Applicants be provided with “full particulars of the matters to be taken into account by the Respondent or her Delegate when considering to refuse the Applicant’s visa application” and “a reasonable opportunity to respond to any such particulars”.

  7. Section 503A(1) of the Act prohibits, amongst other things, authorised migration officers from divulging or communicating information to another person which has been communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information where the information is relevant to the exercise of a power under s501 of the Act.

  8. Section 503A(2) prohibits requirements being imposed upon the Minister or authorised migration officers to divulge or communicate such information to a Court.

  9. Similar restraints are imposed by s503D of the Act in respect of disclosure of the details of gazetted agencies providing such information as if such details were such information.

  10. In the foregoing context I made orders on 4 August 2005 pursuant to Order 29 rule 2 of the Federal Court Rules for certain questions to be decided separately and before the trial in these proceedings.

  11. The separate questions put in issue the constitutional validity of the restraints imposed by the Act in respect of the disclosure to the Court of such information.

  12. In respect of the separate questions the Chief Justice has directed that the jurisdiction of the Court be exercised by a Full Court in accordance with s20(1)A of the Federal Court of Australia Act1976 (Cth). The date fixed for the hearing of the separate questions is Wednesday 19 October next.

  13. By virtue of certain matters to which I will shortly refer the constitutional issues may become moot and unnecessary for the Court to decide.

  14. Section 503A(3) of the Act in effect allows the Minister to override the restrictions placed upon the communication of information to a Court. Section 503A(3) relevantly provides:-

    “503A(3)The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to … a specified court ….  However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.”

  15. It may be noted that s503A(3) does not make provision for disclosure of information to the specified Court although, arguably, the method of disclosure could be dealt with in the “specified circumstances”. Absent any such provision, it would no doubt be open to the Minister or the relevant authorised migration officer to voluntarily disclose the confidential information to the Court. Alternatively, it may be that the Applicants could secure the production of the specified information to the Court by the issue of a subpoena or a Notice to Produce which could secure the disclosure to the Court, it then being a matter for the Court as to what would happen to the material so disclosed.

  16. Section 503B(1) of the Act empowers the Court to make orders which it considers appropriate for the purpose of ensuring that, in the event that a Ministerial declaration comes into force under s503A(3) of the Act and the information is disclosed to the Court, the information will not be divulged or communicated to other persons.

  17. Section 503B(1) of the Act relevantly provides:-

    “503B(1)        If:

    (a)       either:

    (i)information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501 …; or

    (ii)       …; and

    (b)the information is relevant to proceedings (the substantive proceedings) before the Federal Court … that relate to section 501 …; and

    (c)no declaration is in force under subsection 503A(3) authorising the disclosure of the information to the Federal Court ... for the purposes of the substantive proceedings;

    the Federal Court may …,  on application by the Minister, make such orders as the Federal Court … considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force and the information is disclosed to the Federal Court …, the information is not divulged or communicated to:

    (d)the applicant in relation to the substantive proceedings; or

    (e)the legal representative of the applicant in relation to the substantive proceedings; or

    (f)       any other member of the public.”

  18. What is presently before me in each matter is a Notice of Motion filed by the Minister on 30 September 2005 seeking orders pursuant to s503B(1) in respect of information that was communicated to an authorised migration officer by a gazetted agency in accordance with s503A(1) of the Act.

  19. To enable the current applications to be made for orders under s503B(1) of the Act I made interim non-disclosure orders pursuant to s503C of the Act on 6 October last. Those orders included an order that the particular information provided to the Court for the purposes of the current applications not be divulged or communicated to the applicants, their legal representatives or any members of the public.

  20. Under s503B(6) of the Act disclosure of the confidential information to the Court is permissible for the purposes of enabling the Court to make a decision on a s503B(1) application. Information so disclosed to the Court under s503B(6) is not to be treated as having been disclosed to the Court for the purposes of the substantive proceedings (see s503B(7)).

  21. Should I be minded to make orders under s503B(1) of the Act, it is not incumbent upon the Minister to make a declaration under s503A(3) (see s503B(11)).

  22. Section 503B(2) of the Act empowers the Court to include specific orders in the orders which it may make under section 503B(1).

  23. Section 503B(5) requires the Court to have regard to nine specified matters in exercising its powers under s503B(1) of the Act. It is also required to have regard to matters specified in the regulations, but I am informed by Counsel for the parties that no relevant matters have been so specified. The Court is precluded from having regard to any other matters.

  24. Section 503B(5) relevantly provides:-

    “503B(5)In exercising its powers under subsection (1), the Federal Court … must have regard to all of the following matters:

    (a)the fact that the information was communicated, or originally communicated, to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information;

    (b)       Australia’s relations with other countries;

    (c)the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;

    (d)in a case where the information was derived from an informant – the protection and safety of informants and of persons associated with informants;

    (e)the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with, criminal intelligence or security intelligence;

    (f)Australia’s national security;

    (g)the fact that the disclosure of information may discourage gazetted agencies and informants from giving information in the future;

    (h)the effectiveness of the investigations of official inquiries and Royal Commissions;

    (i)the interests of the administration of justice;

    …
    and must not have regard to any other matters.”

  25. For the purposes of the applications presently before me information has been disclosed to the Court in accordance with s503B(6) of the Act. That disclosure was effected by the production to the Court of a 251 page bundle of documents in circumstances where I was invited to read copies of five letters commencing at or appearing on pages 210, 209, 205, 204 and 202 of the bundle.

  26. Having regard to the terms of the documents themselves, what constitutes a gazetted agency within the meaning of s503A(9) of the Act and protective security measures directed at ensuring confidentiality in respect of information made available to various organs of government in accordance with the Commonwealth Protective Security Manual published by the Attorney-General’s Department in 2000, I am satisfied that the information contained in the documents which I have been invited to read satisfies the requirements of s503B(1)(a)(i) and s503B(1)(b) of the Act.

  27. There is no evidence before me of any Ministerial declaration having been made under s503A(3) of the Act. In the present circumstances I am satisfied that each of the preconditions to the Court exercising its powers under s503B(1) of the Act has been satisfied.

  28. Given the legislature’s obvious perception that confidentiality is highly important in this area, it does not seem to me to be appropriate to reason the case for the orders which should be made by reference to the matters to which I must have regard and to which I have had regard in accordance with s503B(5) of the Act.

  29. Whilst the Minister has sought a blanket non-disclosure order, I am of the opinion that strictly limited disclosure to the Applicants’ counsel presently retained by the Applicants and to no other persons should be permitted in the event that a Ministerial direction under s503A(3) comes into force and the information contained in the five copy letters to which I have referred is disclosed to the Court. In my opinion it would be appropriate for orders to be made under s503B(2) as well.

  30. I will hear the parties’ submissions on the question of costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:             12 October 2005

Counsel for the Applicant on the Motion:

G R Kennett

Solicitor for the Applicant on the Motion:

Australian Government Solicitor

Counsel for the Respondent on the Motion:

S Gageler SC and N Poynder

Solicitor for the Respondent on the Motion:

Murray Craddock & Neumann

Date of Hearing:

11 October 2005

Date of Judgment:

12 October 2005
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