Khaira v Minister for Home Affairs

This matter came before Judge Egan of the Federal Circuit Court of Australia concerning an interlocutory application for discovery. The applicant, Ms. Khaira, sought a declaration that discovery would be appropriate in the interests of the administration of justice. The dispute arose from the Minister for Home Affairs' reliance on two certificates issued under s 375A of the *Migration Act 1958* (Cth), which prevented the disclosure of certain information to Ms. Khaira.

The central legal issue before the Court was whether the documents and information covered by the s 375A certificates were required to be disclosed to the applicant for the purpose of ensuring procedural fairness during her hearing before the Migration Review Tribunal. The Court was required to consider the validity of the s 375A certificates and their impact on the applicant's right to procedural fairness.

Judge Egan reasoned that the s 375A certificates were validly made, as they stated that disclosure of the information otherwise than to the Tribunal would be contrary to the public interest because it would identify the source of an allegation, and the informant had requested anonymity. The Tribunal had provided copies of the certificates (with the certifier's name redacted) to the applicant and her agent, who made no submissions. The Court noted that the failure to disclose the existence of these certificates in a prior review had led to writs of certiorari and mandamus. While the Court acknowledged that some documents were relevant to the issues on review and that the Tribunal had previously fallen into jurisdictional error, it found that the Tribunal had subsequently put the gist of matters arising from the s 375A certificates to the applicant, and her response was insufficient. The Court concluded that the documents the subject of the s 375A certificates were not required to be disclosed to the applicant for the purpose of ensuring procedural fairness.

The application for discovery was dismissed.