FEDERAL CIRCUIT COURT OF AUSTRALIA
| FKB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3438 |
| Catchwords: PRACTICE AND PROCEDURE – Whether or not court should order production of a document – relevance – admissibility – public interest – Sankey v Whitlam considered. |
| Legislation: Migration Act 1958, Pt 7AA, ss 473DC, 473DD, 473DE, 473GB, 473GD, 438. |
| Applicant: | FKB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 689 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 3 August 2018 |
| Date of Last Submission: | 17 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Guo |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr J Edwards |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
DECLARATIONS
The direction made purportedly under s 473GD(1) of the Migration Act (“Act”) and dated 21 November 2017 is invalid.
The certificate issued purportedly under s 473GB of the Act and dated 5 July 2017 is invalid.
ORDERS
The decision made by the second respondent on 21 November 2017 is quashed.
The second respondent is required to determine the applicant’s application according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 689 of 2017
| FKB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction to procedural issues
When this proceeding was commenced on 11 December 2017 the applicant relied on two grounds as follows –
(1) The assessor failed to properly consider all of my claims.
(2) The assessor did’t (sic) give me a chance to comment on one aspect of my claims.
Without particulars, grounds expressed in such generalities and which give no insight into propositions of fact or law upon which the alleged jurisdictional error was based were amenable to dismissal. An ever growing body of authority has held to that effect, such as SZNXA v Minister for Immigration and Citizenship,[1] WZATH v Minister for Immigration and Border Protection,[2] WZAVW v Minister for Immigration and Border Protection,[3] AQN15 v Minister for Immigration and Border Protection,[4] BHK15 v Minister for Immigration and Border Protection,[5] CNN15 v Minister for Immigration and Border Protection,[6] MZARG v Minister for Immigration and Border Protection,[7] BYM16 v Minister for Immigration and Border Protection[8] and DQQ17 v Minister for Immigration and Border Protection.[9]
[1] [2010] FCA 775
[2] [2014] FCA 969
[3] [2016] FCA 760
[4] [2016] FCA 571
[5] [2016] FCA 569
[6] [2017] FCA 579
[7] [2018] FCA 624
[8] [2017] FCA 326
[9] [2018] FCA 784
On 31 January 2018 a registrar of this court granted leave to the applicant to file and serve an amended application for judicial review, such amended application to be filed and served by 21 March 2018. By consent, that date was subsequently extended to 22 July 2018.
In his amended application, the applicant contended he was entitled to declaratory relief in respect of the recommendation of the independent protection assessment reviewer and an order restraining the minister from making the decision referred to in the recommendation. In his amended application, the applicant contended that the IAA incorrectly characterised certain information as “new information” for the purposes of pt 7AA of the Migration Act (“Act”).
Without leave, the applicant served on the minister and filed with the court a document called “further amended application” in which different declaratory relief was claimed and two different grounds were raised. He sought declarations of invalidity in respect of –
a)a direction made under s 473GD(1) and dated 21 November 2017; and
b)a certificate purportedly issued under s 473GB and dated 5 July 2017.
The first of the additional grounds was said to be alternative to grounds one and two (of the amended application) and in the second of the additional grounds the applicant asserted that the direction dated 21 November 2017 and the certificate issued on 5 July 2017 were ultra vires, therefore invalid. At the hearing of this case on 3 August 2018, counsel for the minister told me that no point was taken about the further amended application being made late and without leave. Both counsel thoroughly and very helpfully debated all grounds before me. Neither counsel contended either was taken by surprise by any of the grounds or arguments advanced. In those circumstances, it seemed to me to be appropriate before anything else to grant an order giving leave to the applicant to file, serve and rely upon the further amended application dated 20 July 2018.
Introduction to factual issues
The applicant put in issue the IAA’s characterisation of a UK Home Office report dated 31 March 2017 as “new information”. The applicant argued that the report had been before the delegate and that it was therefore not “new information” properly so-called. He said the IAA erred in characterising the report in the way that it did. Also in issue in this case was the status of a certificate on which the minister relied.
Synopsis
For the reasons that follow, in my judgment the IAA did not fall into jurisdictional error in the manner alleged. However, the certificate and direction were invalid. I make the declarations sought.
New information under pt 7AA
Part 7AA of the Act has spawned a stunningly large amount of judicial attention in decided cases since it first commenced. Full Courts of the Federal Court of Australia are regularly called upon to make pronouncements about whether or not information was or was not before the delegate, whether information considered by the IAA was properly characterised as “new information” as defined, whether the pre‑conditions to the IAA’s receipt of new information was satisfied and other matters.
In addition to considerations expressed by Full Courts, the High Court of Australia had occasion to make detailed observations about the concept of “new information” under pt 7AA in Plaintiff M174/2016 v Minister for Immigration and Border Protection.[10] Many observations in that case have direct correlation to the issues in this case. In that case, the plurality (Gageler, Keane and Nettle JJ) handed down reasons with whose reasons Gordon J and Edelman J agreed (although each writing separately). In construing s 473DC, the plurality said the following (with citations omitted)[11] –
The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
[10] (2018) 92 ALJR 481
[11] Ibid [24]
Pausing there, several observations flow from the High Court’s construction of “new information”. Among them are the following –
a)new information need not be recorded in a document;
b)new information is a communication of knowledge about some particular fact, subject or event;
c)new information must meet two pre-conditions;
d)the first is that the information was not before the minister or the delegate when the decision refusing the visa application was made; and
e)the second pre-condition is that the IAA considers that the information may be relevant.
That last point was emphasised by the plurality of the High Court at paragraph 27 of its reasons. There, the plurality said the following –
Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.
The question then became when the IAA was entitled to consider new information. The answer is supplied by s 473DD. The pre-conditions set out in that subsection must always be met before the IAA can consider any new information, a point observed by the plurality in paragraph 29 of its reasons. Whatever the source of the new information, the IAA needs always to be satisfied that there are “exceptional circumstances” to justify considering it. Then one or other of the circumstances set out in sub-ss 473DD(b)(i) or (ii) must be satisfied.
The controversy in this case involved the question whether the Upper Tribunal decision in proceeding GJ and Others (Post-Civil War: Returnees) Sri Lanka GC[12] was or was not “before” the delegate when the decision refusing to grant the protection visa was made. If, properly so-called, it was “new information”, the next question was whether the delegate was required to consider it.
[12] [2013] UKUT 00319 (IAC)
Upshot
For the reasons that follow, in my judgment the Upper Tribunal decision was not before the delegate.
The issue in context
To better understand the matter it is necessary to put the following factual setting of this debate in context. To that I now turn.
The applicant is a Hindi Tamil of Sri Lankan citizenship who arrived at Christmas Island as an unauthorised maritime arrival on 8 June 2013. He was interviewed on 18 May 2014. On 14 July 2016 he was invited to apply for a safe haven enterprise visa in response to which he applied on 1 February 2017. His protection claims were set out in a document that accompanied his visa application. The delegate interviewed the applicant on 12 April 2017. On 5 July 2017 the delegate refused to grant the applicant the visa he sought.
Relevantly for present purposes, the delegate wrote in her reasons that the UK Upper Tribunal (Immigration and Asylum Chamber) in 2013 concluded that the Liberation Tigers of Tamil Eelam (“LTTE”) in Sri Lanka was a spent force and there have been no terrorist incidents since the end of the civil war. That sentence appeared on page 8 of the delegate’s decision.[13] Footnote 33, inserted at the end of the sentence, contained a citation as follows –
[13] Court book (filed on 21 February 2018) 99
CISEDD5OAD3779: UK Home Office, “Sri Lanka: Tamil Separatism. Version 4.0”, March 2018, s2.4.2.
The parties used the shorthand reference of “UK Home Office report” to refer to the document described by footnote 33.[14]
[14] Ibid
The text or a portion of the decision of the UK Upper Tribunal was not mentioned in the delegate’s decision. The UK Home Office report was not quoted, nor portions of it referred to in the delegate’s decision. Footnote 33 was the extent of the reference to the UK Upper Tribunal decision and that footnote was the extent of the reference to the UK Home Office report. In an affidavit affirmed on 20 July 2018, the applicant’s solicitor purported to introduce into evidence in this case the terms of paragraph 2.4.2 of the UK Home Office report. He did not exhibit the report itself. Equally, the applicant’s solicitor did not produce a copy of the Upper Tribunal decision to which footnote 33 of the delegate’s decision referred.
Returning to the factual narrative, on 5 July 2017 another of the minister’s delegates issued a certificate under s 473GB in respect of the applicant’s screening interview transcript. A copy of the certificate was produced at page 109 of the court book.
As mentioned above, the delegate decided to not grant the applicant the visa he sought.
On 10 July 2017 the delegate’s decision was referred to the IAA.
On 29 August 2017 the applicant’s solicitors provided a five-page written submission to the IAA addressing matters of fact and law. In it the applicant’s solicitors at paragraph 15 quoted a sentence from a decision of the UK Upper Tribunal in the case of GJ and Others (Post‑Civil War: Returnees) Sri Lanka GC. The applicant’s solicitors recorded in bold font the sentence from the Upper Tribunal decision. After quoting the sentence from the Upper Tribunal decision in bold, the applicant’s solicitors ascribed footnote 32 to the quoted sentence. At footnote 32, the applicant’s solicitor included the medium neutral citation of the Upper Tribunal case and then added what could only be construed as a submission, as follows –
Note: this decision was considered by the delegate at page 8 of the decision and should not be considered “new information”.
Strictly speaking, that submission was incorrect to the extent that it stated that the UK Upper Tribunal decision had been considered by the delegate. In fact, the delegate cited how the UK Upper Tribunal in 2013 had concluded that the LTTE was a spent force since the end of the civil war. The delegate did not name the case, nor did the delegate quote the specific observation made in the case by the Upper Tribunal. Most of the contents of paragraph 15 of the applicant’s solicitor’s written submissions to the IAA went beyond the material before or considered by the delegate.
The IAA mentioned the Home Office report at footnote 16 of its reasons.
So far as the UK Upper Tribunal decision was concerned, the IAA gave a detailed statement about it in paragraph 3 of its reasons. Lengthy as it was, it is necessary to quote from it to demonstrate the correctness of those comments. It said the following –
On 29 August 2017 the IAA received a submission on behalf of the applicant from his representative. The representative’s submission addresses the delegate’s decision and findings and these elements may be regarded as argument rather than ‘information’. Sections of the submission cite a reference to a source from 2013 which was not before the delegate in its entirety. This source was a judgment by a UK Upper Tribunal (Immigration and Asylum Chamber) which is referred to by the delegate in the decision but is quoted from another source which was before the delegate (UK Home Office, “Sri Lanka: Tamil separatism. Version 4.0”, 31 March 2017). The applicant’s submission argues that since this judgment was itself referenced by the delegate in the decision to refuse the visa it was, inter alia, considered by the delegate, and consequently was not new information. I do not accept this proposition. The delegate’s decision and the referred materials do not suggest, in this regard, that the delegate had before her anything other than the UK Home Office report. I note this judgment was written 2013, and it is publicly available. The applicant has not satisfied me that it could not have been provided to the Minister prior to the delegate’s decision, nor that the information is credible personal information that may have affected consideration of the applicant's claims. As such I am prevented from considering the information. Furthermore, considering all the circumstances, I am not satisfied that there are exceptional circumstances to consider the information.
A second reference in the IAA’s reasons to the UK Upper Tribunal decision appeared at paragraph 42. Once again, it is necessary to quote from that. There, the IAA stated as follows –
Credible information before me which postdates the 2013 UK judgment relied upon by the representative records that torture in Sri Lanka, perpetrated by military, intelligence or police forces, is not presently systemic or state-sponsored and that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict. DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.
In my view, both passages were correct.
Let me now turn to the grounds of review in the further amended application.
Ground one
Under this ground, the applicant took issue with the IAA’s exclusion of certain evidence. The ground was as follows –
The IAA erred in excluding consideration of the evidence that ‘if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection’, by incorrectly finding that it was ‘new information’.
Particulars
The evidence is quoted at [15] of the submissions to the IAA. The same words appear at [2.4.2] of the document “Sri Lanka: Tamil separatism. Version 4.0”, UK Home Office, 31 March 2017, which was before the delegate, and therefore not ‘new information’, contrary to the IAA’s conclusion at [3] of its decision.
The real substance of the contention lay in the particulars subjoined to paragraph one. The proposition there advanced was that the submission at paragraph 15 of the applicant’s solicitor’s submissions and the extract from paragraph 2.4.2 of the UK Home Office report were not before the delegate. The information at paragraph 2.4.2 of the UK Home Office report was set out in the affidavit of the applicant’s solicitor affirmed 20 July 2018. The delegate did not address it, raise it or quote from it. The UK Upper Tribunal decision was not cited, named or quoted from. That case could have been produced as it was publicly available on >
In my view, the IAA in paragraph 3 of its reasons was correct in its characterisation of the Upper Tribunal decision as “new information”, according to the exposition given to that phrase by the High Court in Plaintiff M174/2016. So far as the Home Office report was concerned, the IAA correctly said in paragraph 3 of its reasons that the delegate did not have before her anything other than the Home Office report. The contents of that report were extensively considered by the delegate and the IAA.
I reject the contentions in ground one.
Ground two
Under this ground, the applicant argued that the IAA erred in excluding a consideration of the UK Upper Tribunal decision by incorrectly finding that it was new information. For reasons already canvassed, I disagree with that contention. In my view, the observations in paragraph 3 of the IAA’s reasons were correct. The IAA correctly considered that the UK Upper Tribunal decision was new information.
Since reserving judgment in this case, the Full Court of the Federal Court of Australia handed down its reasons for judgment in EEM17 v Minister for Immigration and Border Protection,[15] concerning new information. In that case, the relevant issue was whether post-interview submissions provided to the delegate after the delegate had given its decision on the fate of the visa application were “new information” for the purposes of pt 7AA of the Act. The Full Court held that at least part of the post-interview submissions constituted new information and that the IAA in that case failed to comply with the requirements of s 473DD in relation to that information.
[15] [2018] FCAFC 180
In reaching that conclusion, the Full Court held that the post-interview submissions included an argument not earlier advanced before the delegate and that, in respect of that new information, the IAA had not gone through the steps set out in s 473DD. The Full Court held that the review material was not limited to information that was before the minister or delegate at the time of the decision refusing the visa, relying on Minister for Immigration and Border Protection v CQW17[16] and Minister for Immigration and Border Protection v BBS16.[17]
[16] [2018] FCAFC 110
[17] [2017] FCAFC 176
Among the important observations in that case was the holding that new information for pt 7AA purposes may, in part, have been before the minister or delegate when the relevant decision was made refusing the visa application. In the case of EEM17, the relevant new information emerged for the first time in post-interview submissions provided to the delegate after the delegate had disposed of the case. Insofar as new information emerged in those post-interview submissions, then that new information had to be dealt with in accordance with s 473DD.
In this case, at least in part, the new information was constituted by the specific reference to the UK Upper Tribunal decision. I do not agree that the precise case had been before the delegate. In my view, the IAA was correct in its treatment of the matter. That approach is consistent with the approach adopted by the Full Court in EEM17 and that approach is on all fours with the construction of pt 7AA adumbrated by the High Court in Plaintiff M174/2016.
In my view, ground two was without merit.
Ground three
The applicant’s further amended application raised the alternative argument advanced in ground three to the arguments advanced in grounds one and two. In ground three, the applicant contended that the IAA erred by relying on the UK Upper Tribunal decision when it was new information yet no exceptional circumstances existed justifying its consideration.
At once it will be apparent that, by that alternative ground, the applicant was propounding the notion that the UK Upper Tribunal decision was new information when the mainstay of his contentions were to the contrary, namely, that the UK Upper Tribunal decision was not new information. There was nothing wrong in law in advancing that diametrically-opposite proposition. But the cornerstone of the applicant’s argument under ground three was not so much the characterisation of the UK Upper Tribunal decision as new information – rather, it was how the IAA treated that new information and in particular whether exceptional circumstances existed to justify the IAA’s consideration of it as new information.
Any analysis of this ground commenced at an examination of precisely how the IAA identified and characterised the UK Upper Tribunal decision. As mentioned above, the IAA did not refer to the decision by name. As early in its reasons as paragraph 3, the IAA mentioned a judgment of the UK Upper Tribunal. The precise sentences of relevance were as follows –
Sections of the submissions cite a reference to a source from 2013 which was not before the delegate in its entirety. This source was a judgment by a UK Upper Tribunal (Immigration and Asylum Chamber) which is referenced by the delegate in the decision but is quoted from another source which was before the delegate (UK Home Office, “Sri Lanka: Tamil Separatism. Version 4.0”, 31 March 2017). The applicant’s submission argues that since this judgment was itself referenced by the delegate in the decision to refuse the visa it was, inter alia, considered by the delegate, and consequently it was not new information. I do not accept this proposition. The delegate’s decision and the referred materials do not suggest, in this regard, that the delegate had before her anything other than the UK Home Office report. I note this judgment was written in 2013, and is publicly available …
In debate on 3 August 2018 with Mr Guo of counsel for the applicant, he accepted that the content of the UK Home Office report emerged from his instructing solicitor’s affidavit and not from the face of the delegate’s consideration of this visa application. As for the UK Upper Tribunal decision, Mr Guo submitted that on the face of the delegate’s reason, the delegate did not identify the name of the case, nor the citation of it. However, Mr Guo qualified his response by arguing that the words used by the delegate cannot be understood literally. Mr Guo was referring to the following sentence of the delegate’s reasons that incorporated footnote 33, the details of which have been mentioned above. The relevant sentence that Mr Guo said could not be understood literally was this –
The UK Upper Tribunal (Immigration and Asylum Chamber) in 2013 concluded that the LTTE in Sri Lanka is a “spent force” and there must have been no terrorism or terrorist incident since the end of the civil war.
Footnote 33 followed that sentence.
Mr Guo accepted that the sentence quoted above and footnote 33 did not speak of the name of the case in the UK Upper Tribunal. Mr Guo then said that footnote 33 referred in terms to the UK Home Office report and paragraph 2.4.2. Counsel for the minister accepted that the UK Home Office report and paragraph 2.4.2 of it was before the delegate, so I accept that no debate emerged about whether the UK Home Office report was before the delegate as it plainly was.
Mr Guo then argued that the UK Upper Tribunal judgment was not mentioned “on the plain text of literally the words that appear on [court book] page 99 [this was the passage quoted by me immediately above] but my submission is it indirectly does pick it up because of the citation to 2.4.2”.
I do not accept that submission.
In my view, the mere reference to the UK Home Office report and to paragraph 2.4.2 of that report did not incorporate by reference the UK Upper Tribunal decision. If a reader went to paragraph 2.4.2 of the UK Home Office report and specifically to paragraph 2.4.2 of that report, a reader was not confronted with the full text of the UK Upper Tribunal decision. To the contrary. As paragraph 2 of the affidavit of Reuben Saul Jahnke affirmed 20 July 2018 made plain, paragraph 2.4.2 of the UK Home Office report was a four bullet point snapshot of certain paragraphs (an incomplete collection thereof) from paragraph 356 of some decision of the UK Upper Tribunal. The opening words of paragraph 2.4.2 were these –
The UK Upper Tribunal in GJ and Others found that …
Precisely how one extrapolated the reference to “GJ” to be a reference to a 2013 decision reported at GJ and Others (post-civil war: returnees) Sri Lanka GC went unexplained. In my view, it strains the tenuous link to breaking point to contend that the single reference to “GJ” is a reference to that case. I reject the submission.
I do not accept the premise on which the alternative proposition advanced in ground three is based.
In my view, ground three was without merit.
Ground four
Under this ground the applicant introduced a contention of ultra vires. The applicant argued that the declaration made on 21 November 2017 and the certificate issued on 5 July 2017 were invalid and therefore ultra vires.
During debate on 3 August 2018 I drew counsels’ attention to the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16.[18] Neither counsel had addressed that decision in their written submissions. Both parties filed further written submissions in response to my invitation for them to do so. Each contended that the decision of the Full Court did not have direct application in this case. However, the applicant argued that the certificate and direction were invalid as they were ultra vires in that the certificate was given and the direction was made without power to do so.
[18] [2017] FCAFC 176
So far as the direction was concerned, Mr Guo argued that no evidence was before me to the effect that the person who gave the direction possessed any lawful delegation to make directions under s 473GD of the Act. Further, according to Mr Guo, even assuming the author of the direction possessed a lawful delegation, the direction itself was beyond the boundaries of s 473GD(i) of the Act. He said only the IAA President could give the delegation and only if satisfied that information “should not be published or otherwise disclosed” or “should not be published or otherwise disclosed except in a particular manner and to particular persons”. Mr Guo submitted that the direction was not consistent with either of those two circumstances. Finally, Mr Guo argued that there was nothing before the Court capable of supporting a lawful invocation of the public interest.
So far as the declaratory relief was concerned arising from the direction, Mr Guo openly submitted that his client sought such relief so that if the matter were remitted to the IAA, the minister could not resist any challenge to the visa application on another ground. To that end, the applicant argued that the entitlement to declaratory relief was not dependent on the demonstration of jurisdictional error, citing the High Court’s decision in Federal Commissioner of Taxation v Futuris Corporation Limited[19] and that a declaration may be made so as to declare that a certain state of affairs exists, for example, as was done in Edwards v Santos Limited,[20] where the High Court declared that certain mining leases had not been validly renewed. Often, although not always, the formulation postulated to support the making of a declaration is whether the party has a real interest in raising the question pertinent to the declaratory relief sought, as was held in Plaintiff M61/2010E v Commonwealth & Ors.[21]
On behalf of the minister, Mr Edwards of counsel focused on the public interest aspect of the direction given under s 473GD. Mr Edwards said two steps were involved. The first related to the certificate given pursuant to s 473GB. The second was the direction given under s 473GD. So far as s 473GB was concerned, Mr Edwards said it was in the same terms as was s 438(1) of the Act and s 438(1) of the Act had been considered by Beach J in MZAFZ v Minister for Immigration and Border Protection,[22] with the consequence that the same result should follow. However, Mr Edwards said that the certificate in this case, unlike the certificate in MZAFZ, did not manifest imprecision and overreach as in this case the certificate was considerably narrower. Citing Sankey v Whitlam,[23] Mr Edwards argued that as a general rule the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to do so. In paragraph 28 of his supplementary submissions, Mr Edwards put the proposition about public interest in the following way –
As already submitted, the reason specified in the certificate in this case is capable of being in the public interest. Put another way, the disclosure of information that would reveal sensitive methodologies and techniques is capable of being injurious to the public interest. Also, this reason could form the basis for excluding the screening interview transcript as evidence under s 130 of the Evidence Act because adducing it as evidence would prejudice the proper functioning of government of the Commonwealth.
[22] (2016) 243 FCR 1
[23] (1978) 142 CLR 1
To that, Mr Guo said the minister’s contentions about the certificate focused only on one aspect, namely, the public interest. Embedded in Mr Guo’s submission was an acknowledgment that the minister was silent on the applicant’s contention that no evidence was before me concerning the validity of the delegation. However, in attacking the public interest ground, Mr Guo said the minister failed to disclose to the applicant any of the matters covered by the purported certificate. He said nowhere had it been identified how the public interest was maintained by the direction given.
It was true that the direction did not state, in terms, the basis on which the author of the direction was satisfied that it was in the public interest to make the direction under s 473GD of the Act. The question was whether the author was required to state as much.
In my view, the certificate given under s 473GB stating that the transcript of the interview would reveal sensitive methodologies and techniques used by the department was not sufficient. I agree with Mr Guo that the transcript of the screening interview was unexceptional. It covered substantially the same material as the induction interview, as well as the interview with the delegate, neither of which interviews were the subject of concern by the minister. To the extent that the screening interview’s disclosure “would reveal sensitive methodologies and techniques” as contended, none were identified. The phrase “would reveal sensitive methodologies and techniques” was in my view nebulous. Like in MZAFZ, it manifested imprecision and overreach. What were the sensitive techniques and methodologies? None were stated. Why were they sensitive? No reason was advanced. Was it enough for the Minister to merely assert that certain techniques were sensitive and that was the end of the matter? In my view, that is not the law.
In my view, the applicant was correct in respect of ground four. He is entitled to the declaratory relief sought.
I make the declarations claimed in paragraphs 3 and 4 as well as the other relief sought in the further amended application.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 27 November 2018
- AGLC
- FKB17 v Minister for Immigration [2018] FCCA 3438
- Case
- [2018] FCCA 3438
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Immigration Assessment Authority (IAA) had correctly determined that certain information provided to it did not constitute "new information" for the purposes of the assessment. Allied to this was the question of whether the declaration and certificate issued by the Minister were validly made, or if they were beyond the scope of the Minister's powers. The Court also considered whether it should order the production of a specific document, assessing its relevance, admissibility, and the public interest, drawing on principles from *Sankey v Whitlam*.
His Honour Judge Wilson found that the declaration made under s 473GD(1) and the certificate issued under s 473GB were indeed *ultra vires* the powers conferred upon the Minister. The Court reasoned that the IAA's assessment of what constituted "new information" was flawed, and this error tainted the subsequent actions taken by the Minister. The principles of administrative law regarding the proper exercise of statutory powers were central to this determination.
Consequently, the Court made orders declaring the Minister's declaration and certificate invalid.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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