GURUNG v Minister for Immigration

[2015] FCCA 1091

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1091

Catchwords:
PRACTICE AND PROCEDURE – Client legal privilege – public interest immunity – whether parts of the notice to produce should be set aside.

Legislation: 
Migration Act 1958, ss.3, part 9A, 357A, 476

Evidence Act 1995, ss.118 130

Applicant: SABITA GURUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 494 of 2015

Judgment of: Judge Street

Hearing date: 28 April 2015

Date of Last Submission: 28 April 2015

Delivered at: Sydney

Delivered on: 28 April 2015

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondent: Mr B. O’Donnell

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Paragraphs 1 and 2 of the notice to produce are accordingly struck out.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 494 of 2015

SABITA GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is called on a notice to produce in the course of the final hearing of this application within the Court’s jurisdiction under s.476 of the Migration Act 1958.  The first respondent has moved to set aside paragraphs 1 and 2 of the notice to produce which are in the following terms:

   1. The document referred to at[CB 101] [CB102] and [CB], being the Tribunal’s references at paragraphs 16, 24, 26 and 30 of its decision. 

   2. The document referred to at [CB 102] and [CB103] at paragraphs 20, 27 and 30 of the Tribunal decision, being a Departmental electronic entry dated 23 November 2012 which supposedly stated that decision had been “reversed – refused”.

2. The grounds of the opposition to the production are that the documents are the subject of both part legal privilege and are also documents that fall within a public interest immunity claim.  An affidavit of the solicitor was read in support of the claims for legal privilege and public interest immunity and the documents were exhibited in two separate exhibits. 

3. Mr Karp of counsel sought to argue that the documents were not in the place, the subject of legal professional privilege, and he accepted that the documents were confidential but sought to assert that they were not made for the dominant purpose of giving legal advice and asserted that there is no solicitor/client relationship. 

4. The affidavit identifies that the documents:

   7. …

   a. …Disclose the substance of legal advice given to officers of the first respondent’s Department.

5. Mr Karp did not seek to advance any argument of waiver by disclosure of the legal advice.  Mr Karp did, however, seek to advance that the material was relevant because of the Tribunal having regard to it, as identified in paragraph 16 of the Tribunal’s reasons as follows:

   16. As a result, on 22 November 201218 the Department took the following position in relation to the submissions the applicant’s representative had put forward on her behalf:

   In terms of [the applicant’s] case, based on the outcome of [third party details omitted], which determined that a re-notification was required, in conjunction with the original [third party details omitted] position, please arrange for the decision to be re-notified. I’m told by [third party details omitted] that this involves un-doing the original decision in ISCE, rerecording the original decision date but using the current notification date with the newly advised address (& using the re-notification template letter…

6. There is no issue in the present case in respect of the fact of re-notification that occurred in respect of an earlier decision of a delegate.  That re-notification occurred on 16 July 2014 and the applicant took advantage of that re-notification by lodging an application for a view by the Tribunal on 25 July 2014. 

7. Mr Karp accepted that the documents were not relevant to ground 1 of the application, which is an argument he seeks to advance in respect of whether the Tribunal had jurisdiction and whether there is a decision within the Tribunal’s jurisdiction.  Mr Karp sought to identify the documents could be relevant were relevant to grounds 2 and 3 of his application.  It is apparent from the application that the applicant is able to advance and articulate the grounds it seeks to make referable to paragraph 16 of the Tribunal’s decision and, in that regard, the documents do not appear to have any real impact on the ability of the applicant to advance or articulate or develop the arguments alleged jurisdictional error. I am not satisfied the documents called for have any legitimate forensic purpose.

8. The identification of the process by which the re-notification occurred, set out in paragraph 16, adequately identifies the nature of the material to which the Tribunal had regard in respect of the re-notification process and it is clear that the applicant has been able to develop such jurisdiction arguments as it seeks to by reference to that process. Mr Karp did not, in my opinion, develop any adequate explanation as to how the documents, the subject of alleged legal professional privilege and the subject of public interest immunity, could have any material impact on the development of the applicant’s arguments of jurisdictional error or development of the applicant’s arguments in respect of s.3, part 9A or the development of the applicant’s arguments in relation to s.357A.

9. Those arguments are clearly available to the applicant and are being advanced in this final application as revealing in excess of jurisdiction by the Tribunal.  I cannot see how the underlying legal advice can possibly assist the applicant in the development of any of those alleged jurisdictional error arguments.

10. I am satisfied on the material before me that the documents are the subject of legal professional privilege and should not be admitted into evidence under s.118 of the Evidence Act 1995. Further to the extent that the documents are the subject of a claim of public interest immunity, I take into account the sworn evidence that they disclose confidential internal policy and strategy of the first respondent’s department. 

11. The context in which the documents have come into existence are apparent in this case.  There was a fraud practice by a migration agent that had an impact on a number of applicants and it is entirely appropriate for the department to be able to develop confidential policy and strategy to deal with a fraudulent migration agent. 

12. It is perfectly apparent from the decision of the Tribunal in this case that the outcome of that policy and strategy was to permit applicants, allegedly the subject of the fraud, to have the benefit of a re-notification of decisions, which is what occurred in this case. 

13. Balancing the public interest claim of immunity against the public interest in the administration of justice the applicant’s claim that these documents are relevant to the applicant’s case for the reasons I have earlier given the public interest immunity clearly outweighs any interest of disclosure in the present case. The documents should not be adduced into evidence under s. 130 of the Evidence Act 1995.

14. For the reasons I have given, I am not satisfied the documents are, in fact, relevant to the application before the Court.  But even if the documents have a peripheral relevance, it is not of a kind that outweighs the public interest immunity claim that has been advanced by the first respondent.  Paragraphs 1 and 2 of the notice to produce are accordingly struck out.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 April 2015