Khaira v Minister for Home Affairs

[2020] FCCA 1264

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAIRA v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1264

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Interlocutory application in a case for discovery – consideration of whether declaration ought to be made that discovery would be appropriate in the interests of the administration of justice – disavowal by Tribunal of any reliance upon the anonymous provision of documents or information the subject of two s. 375A certificates – finding that documents the subject of the s. 375A certificates were not required to be disclosed to the applicant for the purpose of ensuring procedural fairness to her during the hearing before the Tribunal – application in a case dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.45.

Migration Act 1958 (Cth), ss.362A, 375A.

Cases cited:

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50.

Minister for Immigration and Border Protection vAMA16 (2017) 254 FCR 534.

Applicant: VATANDEEP KAUR KHAIRA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 530 of 2018

Judgment of: Judge Egan

Hearing date: 20 May 2020

Date of Last Submission: 20 May 2020

Delivered at: Brisbane

Delivered on: 22 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: NB Lawyers

Counsel for the Respondents: Ms Hoiberg

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant’s application in a case filed on 21 April 2020 be dismissed.

2. The costs of and incidental to the applicant’s application in a case be reserved pending the determination of the application for review.

3. Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 530 of 2019

VATANDEEP KAUR KHAIRA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application in a case filed on 21 April 2020, the applicant relevantly sought the following orders:

   “1. The applicant have leave to file an amended application;

   2. A declaration pursuant to s46 of the Federal Circuit Court of Australia Act that it is appropriate, in the interests of the administration of justice, to allow discovery in the following limited form:

   (a) That the first respondent within 2 business days provide the applicant with copies of all documents not disclosed to the applicant pursuant to the two certificates at pages 521 and 522 of the Court Book and that the documents be redacted to exclude the names of any officers of the first respondent’s department but not otherwise redacted;

   (b) That the court set any other terms or limitation to that discovery that the court considers appropriate.”

2. Insofar as leave was sought by the applicant to file an amended application, a draft copy of which was forwarded to Chambers on 19 May 2020, that is a matter which can be addressed by the Court, prior to the final hearing of the application, should the first respondent object to it being relied upon.

3. As to the interlocutory relief sought in paragraph 2 of the application in a case, a party is only entitled to discovery in proceedings commenced in the Federal Circuit Court of Australia if it is declared by a Judge that such discovery would be appropriate, in the interests of the administration of justice. Section 45 of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCCA Act’) relevantly provided as follows:

   “45 Interrogatories and discovery

   (1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

   (2)  In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:

   (a)  whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

   (b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.”

4. The applicant contended that two certificates purportedly issued pursuant to the provisions of s. 375A of the Migration Act 1958 (Cth) (‘the Act’) were invalid, and that documents the subject of those certificates ought to have been supplied to the applicant pursuant to the provisions of s. 362A of the Act. Sections 362A and 375A respectively provided as follows:

   “362A – Applicant entitled to have access to written material before the Tribunal

   (1)  Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

   (2)  This section does not override any requirements of the Privacy Act 1988 . In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.

   (3)  This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).

   375A – Certain information only to be disclosed to the Tribunal

   (1)  This section applies to a document or information if the Minister:

   (a)  has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

   (b)  has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

   (2)  If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

   (a)  the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

   (b)  the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.”

5. The two certificates were respectively dated 7 December 2015 and 15 December 2015, and provided as follows:

   “CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION ONLY TO THE MIGRATION REVIEW TRIBUNAL UNDER S375A OF THE MIGRATION ACT 1958

   I certify that, in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in CCMD report job number 1-12864939092 or contained in the folio/s OPD2015/166859 would be contrary to public interest because:

   a) I believe this information should not be disclosed to the applicant or the applicant’s representative because it would serve to identify the source of the allegation and the informant asked to remain anonymous when they provided the information to the Department.

   As s375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purpose of this particular review, pursuant to s375A(2)(b) of the Migration Act 1958.

   …

   7 December 2015.”

   “CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION ONLY TO THE MIGRATION REVIEW TRIBUNAL UNDER S375A OF THE MIGRATION ACT 1958

   I certify that, in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s (sent via email) of file number (CLF2015/34522) would be contrary to the public interest because:

   a) Information provided as attachment to email was provided as an allegation and the source has an expectation of anonymity. The identity of the source of the allegation should not be disclosed or by extension, any information contained within the allegation that would have potential to identify the source.

   As s375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.

   …

   15 December 2015.”

6. The Administrative Appeals Tribunal (‘the Tribunal’) referred to the two certificates at [11] and [12] of its reasons as follows:

   “[11] The Tribunal disclosed to the applicant the existence of two 375A certificates dated respectively 7 December 2015 and 15 December 2015. In the view of the Tribunal those certificates are validly made because of the reasons stated in them and the justification given. The Tribunal provided copies of the certificates (with the name of the certifier redacted) to the applicant, and her registered migration agent, and asked whether they had any comments or submissions to make in relation to the certificates. No comments or submissions were made. The Tribunal notes that the failure to disclose the existence of these certificates in the course of the first review of this matter by the Tribunal was one of the reasons for the issue of the writs or certiorari and of mandamus.

   [12] The Tribunal further notes that the orders made by consent by the Federal Circuit Court included that at least some of the documents the subject of the certificates were relevant or potentially relevant to the issues arising on review, and further that the Tribunal fell into jurisdictional error for failing to put to the applicant for comment under s.359AA of the Act the allegation that the applicant paid a sum of money to be sponsored on or around 15 December 2015. Accordingly, the Tribunal put the gist of a number of matters arising from the material covered by the s.375A certificates to the applicant. Those matters included the applicant paying the sponsor for the marriage, and living with another person whilst claiming to be in a married relationship with the sponsor. The only response the applicant made was to say that she did not know where her previous husband is. That issue will be dealt with later in this decision.”

7. It is apparent from a reading of the above two paragraphs of the Tribunal’s reasons that the decision of the first Tribunal was quashed by consent because the existence of those certificates, and presumably an outline of the content of the documents the subject of such certificates, was not conveyed to the applicant, or her representative, prior to the hearing before the first Tribunal.

8. It is also apparent from a reading of those paragraphs that the certificates contained ‘dob-in’ allegations about the applicant having paid her sponsor to marry her, as well as an allegation that the applicant was living with another person at the time that she stated that she was in a married relationship with her sponsor. The allegation about payment was that such payment had been made on or around 15 December 2015 – that being the date of the second certificate.

9. It was submitted on behalf of the applicant that because the certificates had been invalidly issued, the documents the subject of those certificates, appropriately redacted as set out in the application in a case, ought to be the subject of discovery. It was submitted that the certificates were invalid in that they did not disclose an informer, and that the Tribunal did not identify that a ‘confidential source’ was involved. [1] Those submissions were made notwithstanding that it was patently clear, on the face of each of the certificates, that anonymity was a pre-requisite to the acceptance and use by the Department of the proffered dob-in information. There is no force to such submissions.

   [1]        Paragraph 12 of Applicant’s Submissions filed on 19 May 2020.

10. First, at [44] and [60] of its reasons, the Tribunal recorded that it had placed no weight upon either of the anonymous allegations referred to in paragraph [8] of its reasons. In the circumstances of this matter, the Court does not accept that the Tribunal, by having read the content of the documents the subject of the s. 375A certificates, would have thereby subconsciously formed an adverse view as to the applicant’s credibility.

11. It was submitted on behalf of the applicant that the Court should have had regard to the joint judgment of Nettle and Gordon JJ in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 at [99] where it was said:

    “[99] The Minister submitted that administrative decision-makers routinely set aside irrelevant material. But that is not the point. The material was not only irrelevant, but also prejudicial. Putting the material aside does not overcome the subconscious bias which might result from seeing that material. Nor did the IAA expressly state that the material had been put to one side.”

    (footnoted omitted)

12. The last sentence of the above quoted passage is significant. It highlights how this matter is distinguishable from the facts in CNY17, where it was recorded that the Immigration Assessment Authority had not expressly stated that the material the subject of dispute had been ‘put to one side’. In this case, the Tribunal specifically stated that it had placed no weight, as opposed to ‘little weight’, upon the anonymous allegations the subject of the certificates.  In the case of Minister for Immigration and Border Protection vAMA16 (2017) 254 FCR 534 at [77], Griffiths J said:

    “[77] It is unnecessary to determine in this case what significance, if any, should attach to an express assertion by the IAA that highly prejudicial material has been discarded and played no role in its decision. That is because, in contrast with O’Sullivan, no such assertion was made by the IAA here.”

13. Second, as to the allegations in the documents the subject of the certificates, it is relevant to note that the alleged payment by the applicant to her sponsor, as an inducement for him to marry her, occurred on 15 December 2015 – that being a time almost four years after the applicant’s actual date of marriage to her sponsor on 12 September 2011. Such allegation clearly had no factual basis to it, and any document in which any such allegation was contained, would have been irrelevant to any issue before the Tribunal in any event.

14. Thirdly, and without finally determining whether it was open for the Tribunal to make adverse credibility findings against the applicant, from [47] – [68] inclusive of its reasons, the Tribunal dealt with all of the applicant’s claims, and made adverse credibility findings against the applicant on the genuine spousal relationship question, those being findings which were unrelated to, and distinct from, the matters raised in the s. 375A certificates.

15. Further, there are sound public policy grounds for requiring that s. 375A certificates only be held invalid in cases where there is a demonstrably sound basis for doing so. Mere speculation as to whether or not the information proffered to the department was genuine or not, or whether it was actuated by malice or not, does not constitute a basis for any such setting aside. In this matter, the claims of the applicant lacked any demonstrable factual basis which would give rise to a Court doubting the validity of the issue of such certificates.

16. The material the subject of the certificates, therefore, was not required to be disclosed to the applicant as a matter of procedural fairness.

17. In such circumstances, having regard to the Tribunal’s disavowal of any reliance by it upon the matters the subject of non-disclosure pursuant to the s. 375A certificates, as well as the lack of relevance of such information to the matters required to be the subject of consideration by the Tribunal, the Court finds that the applicant has not demonstrated that it is appropriate, in the interests of the administration of justice, that discovery of such documentation be the subject of the making of any declaratory order pursuant to the provisions of s. 45 of the FCCA Act.

18. The application in a case filed on behalf of the applicant on 21 April 2020 is dismissed.

19. The Court reserves the question of costs until the final hearing of the application for review.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 22 May 2020