Khaira v Minister for Home Affairs (No 3)

[2021] FCCA 687

FEDERAL CIRCUIT COURT OF AUSTRALIA

Khaira v Minister for Home Affairs (No 3) [2021] FCCA 687  

File number(s):

BRG 530 of 2018

Judgment of:

JUDGE EGAN

Date of judgment:

8 April 2021

Catchwords:

 MIGRATION – evidence – order for disclosure of a document the subject of a claim for privilege – no public interest in maintaining secrecy of document – document with appropriate redactions ordered to be disclosed.  

Legislation:

 Evidence Act 1995 (Cth), s 130(5).

Migration Act 1958 (Cth).

Number of paragraphs:

8

Date of last submission/s:

31 March 2021

Date of hearing:

6 April 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

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:	6 APRIL 2021

IT IS ORDERED THAT:

1.The First Respondent is to forthwith disclose to the Applicant the document at p. 521 of Exhibit 1, in an un-redacted form, save as to the identity and identification number of the departmental officer and the identification number of the informant log.

2.The costs of and incidental to today’s hearing be reserved.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. This judgment is to be read in conjunction with the judgment of the Court handed down on 1 April 2021.

2. On 6 April 2021, this Court ordered that the lawyers for the first respondent cause a copy of the document the subject of a claim of privilege referred to at Court Book p. 521 to be delivered to Judge’s Chambers in a sealed envelope in order that the Court might inform itself as to the contents of such document 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 Court did so in circumstances where privilege in respect of a similar claim regarding the document referred to at Court Book p. 522 had been waived. [1]  

   [1]           Exhibit 3.

3. Subsequent to the delivery of the document, the Court examined the document and compared it with the other document in respect of which privilege had been waived. The Court noted that the document in question was similar in form to Exhibit 3, but that rather than referring to the applicant being in a relationship and living with the person of interest (‘POI’) referred to in Exhibit 3, the informant in relation to the subject document had claimed that the applicant was living with her spouse.

4. What might be made by Counsel for the applicant about the differences between the two documents is a matter for Counsel. The Court was mindful of the fact, however, that though the Administrative Appeals Tribunal (‘the Tribunal’) had recorded that it had put to the applicant, during the course of the hearing before it, that the Department had received dob-in information to the effect that the applicant was not relevantly living with her spouse, but rather that she was living with a different person (the POI), the Tribunal did not record that it had received dob-in information to a different effect, namely that the applicant was living with her spouse. Neither did the Tribunal record that it had put to the applicant that the Department had such different information.

5. The Court is not of the view that the contents of the subject document are matters of such importance such as to give rise to the need for the Court to protect the State from disclosure of the contents of the document in the public interest.

6. The Court considered that the due administration of justice requires disclosure. In having arrived at that conclusion, the Court has had regard to:

   (a)The possible importance of the document to the applicant in the conduct of her application;

   (b)The fact that the Tribunal put the effect of the contents of one document the subject of a claim for privilege, where such claim was later waived, but did not put the contents of the second document to the applicant during the course of the Tribunal hearing;

   (c)The lack of any real consequence to the State, or the due administration of the Migration Act 1958 (Cth) (‘the Act’) by the Department, should the document be disclosed;

   (d)The fact that, in large part, the substance of the information in the document has already been published. [2]

   [2] Section 130(5) of the Evidence Act 1995 (Cth).

7. The Court was nevertheless mindful that there were some aspects of the subject document which ought not to be disclosed – namely the identity and position number of the relevant case officer/delegate as well as the anonymous information log number. Such matters were ordered to be redacted. Counsel for each party agreed to such course.

8. The costs of and incidental to the application for disclosure are reserved.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       8 April 2021