Khaira v Minister for Home Affairs (No 2)
[2021] FCCA 659
•1 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Khaira v Minister for Home Affairs (No 2) [2021] FCCA 659
File number(s): BRG 530 of 2018 Judgment of: JUDGE EGAN Date of judgment: 1 April 2021 Catchwords: MIGRATION – Discovery - Application for discovery of documents the subject of a claim of public interest immunity privilege – unusual circumstances – applicable considerations – whether Court ought to inform itself as to the contents of the document/s the subject of the claim for privilege – appropriate for Court to examine document/s – matter reserved for consideration. Legislation: Evidence Act 1995 (Cth) s. 130.
Migration Act 1958 (Cth) s. 375A.
Cases cited: Alister v The Queen (1984) 154 CLR 404.
ASIC v P Dawson Nominees Pty Ltd (2008) 169 FCR 227.Number of paragraphs: 14 Date of last submission/s: 31 March 2021 Date of hearing: 31 March 2021 Place: Brisbane Counsel for the Applicant: Mr Boccabella Solicitor for the Applicant: No Borders Lawyers Counsel for the First Respondent: Ms Hoiberg Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs
Table of Corrections 27 July 2021 In paragraph 7, a reference to “5 December 2015” has been replaced with “7 December 2015”. ORDERS
BRG 530 of 2018 BETWEEN: VATANDEEP KAUR KHAIRA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
1 APRIL 2021
IT IS ORDERED THAT:
1.For the purpose of the Court’s consideration of whether or not the First Respondent shall be ordered to make further discovery in terms of the Application in a Case filed on behalf of the Applicant on 16 March 2021, the lawyers for the First Respondent shall forthwith cause to be handed to the Associate to His Honour Judge Egan a sealed envelope containing the document/s the subject of the claim for public interest immunity privilege as set out in a Certificate dated 7 December 2015, purportedly issued pursuant to the provisions of s. 375A of the Migration Act 1958 (Cth), in order that His Honour might inform himself of the content of such document/s.
2.That the costs of and incidental to the hearing before the Court on 31 March 2021 and 1 April 2021 be reserved.
REASONS FOR JUDGMENT
JUDGE EGAN:
By an Application in a Case filed on 16 March 2021, the applicant sought the following orders:
“1. The applicant have leave to file an amended application;
2. That the orders made by Judge Egan made on 22 May 2021 be set aside.
3. 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 certificate at pages 521 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 first respondent within 2 business days provide the applicant with a copy of the delegation of the delegate who purportedly executed the certificate at page 521;
4. That the court set any other terms or limitation to that discovery that the court considers appropriate.
5. The order for costs made on 3 August 2021, against the applicant for $1,000 for costs thrown away for the adjournment of the hearing, be set aside.
6. Directions for the further conduct of the matter;
7. Such further or other order as the court considers appropriate;
8. That the first respondent pay the costs of and incidental to this application and the application for discovery filed 21 April 2020 to be assessed unless otherwise agreed.”
At the hearing before the Court, the applicant did not require the Court to give reasons for its dismissal of the order sought in paragraph 5 of the application. The applicant had sought an order that the Court vacate an order made on 3 August 2020 for the payment by the applicant to the first respondent, in any event, of costs in the amount of $1,000.00 thrown away by reason of the adjournment of the hearing on that day. The Court was of the view that notwithstanding the arguments advanced at the hearing on 31 March 2021, the costs order was nevertheless warranted because the issue which gave rise to the adjournment could have been raised on behalf of the applicant at a much earlier time, such that if that had been done, the first respondent might not have been disadvantaged when the issue was raised shortly before the 3 August 2020 hearing, thereby warranting the adjournment of such hearing.
As to the other orders sought by the applicant, it was submitted by Mr Boccabella of Counsel that in the reasons of the Administrative Appeals Tribunal (‘the Tribunal’) handed down on 30 April 2018, the Tribunal had, in paragraphs 12, 44 and 60 of such reasons, made no relevant distinction between the content of “dob-in” information in each of the subject s. 375A certificates respectively dated 7 December 2015 and 15 December 2015. [1] That assertion was made in circumstances where, after it had been submitted to the lawyers for the first respondent that the 15 December 2015 certificate was invalid because it was unsigned, the first respondent had waived its claim for immunity in respect of the document/s previously protected from disclosure under the 15 December 2015 certificate, and had produced to the lawyers for the applicant an un-redacted copy of such written “dob-in” document.
[1] Court Book (CB) pp. 521 – 522
The applicant relied upon paragraph 12 of the reasons of the Tribunal, which relevantly provided as follows:
“[12] … 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.”
The document under the 15 December 2015 certificate in respect of which privilege was waived, on its face, recorded the assertions that the applicant was not only living with a person other than her nominated spouse, but also that she had paid her spouse to marry her.
It was submitted on behalf of the applicant that the language used by the Tribunal in its reasons suggested that the same information was being conveyed in each of the document/s the subject of the s. 375A certificates. It was further submitted that because the first respondent had waived privilege in respect of the 15 December 2015 certificate, the first respondent ought to be ordered to disclose to the applicant all documents claimed to be the subject of privilege under the 7 December 2015 certificate, such disclosure being conditional upon the document/s being appropriately redacted so as to keep anonymous the name of the informant.
The Court accepts that the Tribunal, in its reasons, did not distinguish between the contents of the documents which were the subject of the respective certificates. Mr Boccabella of Counsel submitted that the applicant could not properly have her case presented unless her lawyers were provided with the content of the 7 December 2015 certificate, and that it would be unfair if the applicant was required to proceed without knowing the content of the documents claimed to be the subject of privilege under the 7 December 2015 certificate.
True it is that where a party is precluded from seeing certain documentation in the possession of an opposing party, such party may feel that it is being disadvantaged in the conduct of its case by reason of such non-disclosure. It has been held, however, that any disadvantage is nonetheless to be considered as secondary to an overriding consideration as to whether disclosure would be injurious to the interests of the State, or in circumstances where the public service would be damaged. A balancing exercise is required to be undertaken. In Alister v The Queen (1984) 154 CLR 404 at [412], Gibbs CJ said as follows:
“The law relating to what was commonly, but misleadingly, known as Crown privilege, but is now referred to as public interest immunity, was discussed at length in this Court in Sankev v. Whitlam (1978) 142 CLR 1 and has since been considered in the House of Lords in Burmah Oil Co. Ltd. v. Bank of England (1980) AC 1090 and Air Canada v. Secretary of State for Trade (1983) 2 AC 394 and by the Court of Appeal of New Zealand in Environmental Defence Society Inc. v. South Pacific Aluminium Ltd. (No.2). (1981) 1 NZLR 153. Those later cases do not cast any doubt on the correctness of Sankey v. Whitlam, but do carry further the discussion on one aspect of the matter, namely when, and in accordance with what criteria, the court should inspect documents for the purpose of deciding whether they should be produced. The present case raises for consideration the analogous question whether the court should require the production of any documents that may answer the description in the subpoena, to enable the court first to discover whether any such documents exist, and then to inspect them for the purpose of deciding whether they should be disclosed to the applicants.
Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises - should the court look at the documents to assist it in answering these questions?”
Section 130 of the Evidence Act 1995 (Cth) relevantly provided as follows:
“130 Exclusion of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.”
Counsel for each party have acknowledged that the Court may inform itself as to whether or not the claim for privilege in respect of the 7 December 2015 certificate should be upheld or not. Each Counsel acknowledged that the Court had power to order discovery in a redacted form, and subject to any conditions considered appropriate by the Court.
The Court is persuaded that because of the way in which the Tribunal referred to the contents of the documents the subject of each of the s. 375A certificates in its reasons, it is open, on one view, for the Court to find that it is in the public interest, and in the interests of the due administration of justice, that discovery of the document/s the subject of the 7 December 2015 certificate ought to be ordered. The Court is further persuaded that in these unusual circumstances, it ought to personally examine the subject document/s.
It is considered that the document/s the subject of the 7 December 2015 certificate ought to be hand delivered to the associate forthwith in a sealed envelope for the purpose of the Court informing itself as to the contents and import of such document/s. The Court, having arrived at such view, was mindful of what was said by Sundberg, North and Tracey JJ in ASIC v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [41], as follows:
“[41]The primary judge then directed himself to the steps set out at [38]. As to pars (a) and (b) he was satisfied that the confidential material relied upon by ASIC disclosed the existence and identity of an informer or informers other than Mr Cummins. As to par (c), his Honour was of the view that ASICs masking of some of the partially redacted documents had gone beyond what was necessary in order to protect the identity of an informer or informers. He set out what he considered to be the appropriate redactions in a confidential appendix. In connection with the balance of the documents in issue (numbered 2, 3, 17, 33 and 34), his Honour was satisfied that 2, 3, 33 and 34 should be protected, and that there should only be a partial redaction of 17. He set out the extent of the redaction in another confidential appendix. The primary judge was aided in reaching his determination as to redactions by confidential affidavits filed by ASIC.”
After its consideration of the document/s the subject of the claim for privilege, if the Court is minded to order discovery of the document/s in question, the matter will be relisted for further hearing on the question of the manner and extent of any such order for discovery.
And it is so ordered.
I certify that the preceding thirteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 1 April 2021
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