Kokcinar v Minister for Immigration
[2007] FMCA 1035
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOKCINAR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1035 |
| MIGRATION – Review of Migration Review Tribunal decision – Notice to Produce filed in relation to documents the subject of a s.375A Certificate – application to set aside the Notice – application refused. |
| Migration Act 1958, ss.357A, 359A, 375, 375A, 376, 422B, 476 and Divisions 5 & 8A Federal Magistrates Court Rules 2001, r.15.24 |
| Burton v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCA 145 Seven Network Limited v News Limited (No. 5) [2005] FCA 510 CCOM Proprietary Limited & Anor v Jiejing Proprietary Limited & Ors (1992) 36 FCR 524 Parkin and O’Sullivan [2006] FCA 1413 Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 |
| Applicant: | SUKRU KOKCINAR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG242 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 14 December 2006 |
| Date of Last Submission: | 14 December 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr Tredrea |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application of the first respondent to set aside the Notice to Produce filed on 8 November 2006 be refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG242 of 2006
| SUKRU KOKCINAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant has sought an order for the review of a decision of the Migration Review Tribunal (the “Tribunal”) of 27 July 2006. That decision affirmed the decision of the delegate of the Minister to refuse the grant of a Partner (Migrant) (Class BC) Visa to the applicant. The applicant who is a citizen of Turkey married an Australian citizen (the “nominator”) on 26 September 2003 in Turkey. They entered Australia together on 5 August 2004. In January 2005 the nominator withdrew her sponsorship of the applicant’s migration application advising that their relationship had broken down on 2 January 2005. The applicant had applied for his visa in February 2004.
The Tribunal conducted an oral hearing on 23 May 2006. At that hearing the Tribunal notified the applicant of allegations that had been made against him that had arisen from consideration by the Tribunal of material provided to it that was subject to a certificate pursuant to s.375A of the Migration Act 1958. The certificate was signed by the delegate of the Minister on 29 June 2005. The applicant did not respond to the allegations at that oral hearing in light of the Tribunal’s decision to provide a detailed summary of the allegations in writing.
That summary in writing was provided on 29 May 2006 when the Tribunal forwarded to the applicant a letter pursuant to s.359A of the Act.
The information went to the issue of whether the relationship between the applicant and the nominator was genuine and continuing after the applicant’s arrival in Australia. That issue was fundamental to the question of whether the applicant met the criteria prescribed by the Act and the Regulations made under it for the grant of the class of visa he sought.
The information included allegations that the applicant had not repaid money provided to him by the nominator in Turkey; that the parties lived together for a period of only three days after their marriage in Turkey despite a period of some seven months elapsing between their marriage and their departure to Australia; that the applicant’s family in Turkey was unaware of the marriage; contradicting the applicant’s claim at the oral hearing that the nominator had not advised him until he was in Australia of the fact that she was previously married; that the applicant left the nominator in Brisbane and travelled to Adelaide to commence employment three weeks after his arrival in Australia; that he threatened the applicant with violence after their separation if she withdrew his sponsorship; that his friends and relatives in Adelaide had indicated that the applicant and another man associated with him had married Australian women solely to gain entry to Australia; that he was in a de facto relationship with another woman; that he did not advise the Department as he was obliged to do of the cessation of his relationship with the applicant; that the applicant had advised the Department that the relationship had ceased due to domestic violence perpetrated upon him by the nominator, whereas in fact on 2 March 2005 the Brisbane Magistrates Court had made a domestic violence intervention order against the applicant on the application of the nominator and that the applicant consented to the making of that order.
The applicant made detailed written submissions in response to the s.359A letter and provided further material from other persons which the Tribunal considered before coming to its decision.
The Tribunal found there to be significant inconsistencies between the evidence given by the applicant at the hearing and the other evidence before it. The Tribunal relied upon the applicant’s consent to the domestic violence intervention order in rejecting the applicant’s denials of his behaviour towards the nominator in Australia. The Tribunal also rejected the applicant’s intention that he was not aware of the nominator’s previous marriage until he arrived in Australia. It rejected his claim at the hearing that he had not had any relationships since the breakdown of his marriage to the nominator as it was bound to do in the light of the applicant’s concession that he had been in a de facto relationship with another woman for the twelve months preceding the hearing of the application. The Tribunal preferred to rely upon the information available to it from sources other than the applicant and rejected some of the evidence of the applicant and his witnesses. It fell short of making a finding that the relationship of the parties had been contrived for migration purposes but only because it found that there was no evidence to implicate the nominator in such a design. Ultimately the Tribunal was not satisfied that the relationship of the parties was genuine and continuing at any time although the Tribunal went on to say, perhaps somewhat inconsistently, that it did not have evidence sufficient to make an adverse finding as to the applicant’s commitment to a genuine spousal relationship prior to the separation of the parties, at least as far as their life in Australia prior to separation is concerned. The Tribunal found that the applicant was not the nominator’s spouse prior to the applicant’s arrival in Australia.
The application to this Court is made pursuant to s.476 of the Act. A summary of the grounds of the application alleging that the Tribunal fell into jurisdictional error is as follows:
a)that it did not comply with s.359A of the Act and/or breached the rules of natural justice in that it did not provide the entirety of the information received by it to the applicant;
b)alternatively it did not comply with s.359A of the Act and/or breached the rules of natural justice in that the particulars contained in its s.359A letter were insufficient;
c)its decision and certain specific findings critical to the decision were irrational and illogical; and
d)its rejection of the applicant’s evidence and the material provided by his witnesses was irrational and illogical.
The applicant in these proceedings has filed a Notice to Produce. That Notice is filed pursuant to Rule 15.24 of the Rules of this Court which provides as follows:
1)A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
The documents sought in the Notice are the documents described by reference to the departmental file folios which were set out in the s.375A Notice of the delegate of the Minister of 29 June 2005.
So the applicant seeks that the Minister produce the documents that were the subject of the s.375A Notice. The respondent has sought to set the Notice aside or, in other words, is asking the Court to “otherwise order” in terms of sub-rule 2. These Reasons constitute my determination of the respondent’s application.
The s.375A Notice itself, after identifying the documents, states that it would be contrary to the public interest for the documents to be disclosed other than to the Tribunal because that “would be contrary to the public interest because they contain:
1.Information provided in confidence and where the provider of the information has not consented to the disclosure of the information to the review applicant;
2.Disclosure of lawful methods or procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law, which could prejudice the effectiveness of those methods or procedure.”
The Notice appears to have been drawn with the observations of Wilcox J in Burton v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 145 at [46] to [52] in mind. In that case His Honour had strongly criticised a certificate which had failed to give any reason at all as to how or why the dissemination of the documents would be contrary to the public interest. His Honour found that the importance of the proceedings in which such certificates issue, and the requirements of fairness involved in assessing whether access to material that leads to the cancellation of a visa, both required the articulation of actual reasons for refusing the access.
The Notice purports to identify such reasons.
The Tribunal in providing its s.359A particulars to the applicant referred to the decision of the High Court in Applicant Veal of 2002 v Department of Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 as being relied upon by it in framing its summary of the material that was subject to the certificate. It relied upon that decision in particular in determining that the substance of the information in the documents should be provided to the applicant rather than the copies of any written information. It did so having regard to the legislative direction to ensure that the document or information the subject of the Notice was not disclosed to any person other than a member of the Tribunal constituted for the particular review (see s.375A (2)(b)).
The Rule pursuant to which the Notice has issued in this Court is not materially different from the Federal Court Rule considered by Sackville J in Seven Network Limited v News Limited (No. 5) [2005] FCA 510 or by Cooper J in CCOM Proprietary Limited & Another v Jiejing Proprietary Limited & Others (1992) 36 FCR 524. The Rule in this Court is a simplified version of the Federal Court Rule but should be understood as having the same coercive effect as a subpoena duces tecum identified by Cooper J. The test to be applied in determining whether such notice should be set aside is the same test as that identified by the NSW Supreme Court in National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSW LR 372 at 385. That is are the documents sought of “apparent relevance to the issues” in the proceedings. Glass JA in Waind and Hill at 381 identifies the three steps that must be taken before documents identified in a subpoena (as with a notice as here) are or can be admitted into evidence, although in the case of the Notice the first step of bringing the documents to Court and the second step of permitting inspection of them are arguably melded. The Notice seeks that the documents be produced at Court and implicitly made available to the party requesting the documents. That is at least arguable but in any event in the first instance I would, if I were to allow the respondent’s challenge to the Notice, direct that the material be produced to the court so as further submissions could be taken in relation to the issue of inspection. The important point is that the Notice and the subpoena have the same characteristic of requiring in the first instance something short of admission into evidence.
Section 375A deals only with the question of the release by the Tribunal of information disclosed to the Tribunal to persons other than those of the Tribunal. It regulates the authority of the Tribunal to disclose the information by prohibiting disclosure to persons (other than members) in respect of material the subject of the certificate. It does not purport to deal with the release of information in the context of proceedings in a forum other than the Tribunal or to deal in a general way with questions relating to the dissemination of the material. In that sense the position of this Court is the same as that of the Federal Court in Parkin and O’Sullivan [2006] FCA 1413 in dealing with an application for an order for discovery of an adverse security assessment of individuals under the Australian Intelligence Organisation Act 1979 (Cth). In that case Sundberg J noted at [31]:
It is clear that the ASIO Act does not, on its face, prohibit a Court from ordering discovery of an adverse security assessment. The Director General, however, says that the intention of the Act is to preclude a non-citizen who is the subject of an adverse security assessment from receiving a copy of the assessment or the material relied on in preparing it, or from having that assessment reviewed by the Administrative Appeals Tribunal. This, he submits, should be taken into account in determining whether the Court should exercise its discretion to order discovery.
That decision is expressly limited to the issue of discovery and not to production, although that in itself does not matter given the way I propose to proceed (see para.[16] above) and given, also, that the process involved in the issue of the Certificate falls well short of providing the element of document description required by the process of making discovery; only a bare description by reference no. is given – nothing of the nature of the document or of its source is revealed. To allow the Notice to stand would in many ways be achieving an outcome equivalent to the making of discovery rather than production.
More importantly, His Honour in that case had to deal with submissions which went to the policy considerations behind those parts of the Act the subject of the proceedings which dealt with issues of confidentiality. No such general policy matters were raised by counsel for the respondent before me. The submission is focused upon the question of relevance and I will come to that in a moment. No submission of the type commonly encountered in ‘public interest immunity’ or ‘crown privilege’ controversies were raised before me. This circumstance simplified matters considerably.
The Minister essentially submitted that the Notice should be set aside because the material to which it related was irrelevant to the enquiry which this Court will embark upon in determining the s.476 application.
Mr Tredrea, for the Minister, quite fairly in my view, summarised the application as being an enquiry as to whether the provision of the particulars set out in the s.359A Notice was a proper discharge of the Tribunal’s obligations under s.359A to provide particulars of any information that would be the reason or part of the reason for affirming the decision under the Review. I also agree with him that to the extent that this argument also relied upon a breach of the rules of procedural fairness it is answered by s.357A of the Act and the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61. Mr Ower, for the applicant, wanted to preserve his position in relation to Lay Lat as it related to the substantive application (he will contend that what it has to say on the topic of the true effect of s.357A and s.422B of the Act was obiter dicta, and will say that Division 5 and ss.375, 375A and 376 and Division 8A do not “deal with” the issues the applicant raises in this context) but conceded for the purposes of this application the argument relating to a breach of rules of procedural fairness could be put to one side and the matter should be assessed upon the basis of the application being understood as being agitated on s.359A grounds (as well as the grounds relating to irrationality and illogicality).
Mr Tredrea says that as a matter of logic the substantive application will stand or fall on an analysis of the Tribunal’s process of reasoning and the documents specified in the Notice were simply incapable of advancing or assisting argument that proceeded in this way. He cited the well-known dicta of Gleeson J in Re. Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] in emphasising that insofar as the application related to alleged illogicality or irrationality the enquiry would be confined to focus upon the actual reasons provided by the Tribunal in its decision to ascertain whether the “true and only reasonable conclusion” was contradicted by the determination constituted by those actual reasons.
Mr Ower accepts the test relating to the validity of the Notice is whether the information is relevant in the sense that it is capable of adding in some way or another to the adjudication of the arguments raised in relation to the review. He contends that the material is of apparent relevance to the issues raised on the review. In particular he says that ground one, involving the challenge to the Tribunal’s discharge of s.359A obligations, raises issues which place the Certificate at the heart of the dispute. Indeed, one of the particulars advanced under that ground is that the Certificate itself was void as information contained within it was not contrary to the public interest. He says the material covered by the Certificate is also germane to ground two in that the material contained in the Certificate will be relevant to determining whether the summary of the particulars of the information provided by the Tribunal, as distinct from the release of the information itself, was an adequate discharge of the s.359A obligations.
I have to say it does seems to me to be difficult to see how the matters raised in grounds one and two could be determined in the absence of the material dealt with by the Certificate. We will only know whether the applicant was appropriately put on the notice of the Tribunal’s concerns and provided with a fair summary of the information if we have access to the information itself. Ultimately, the review will succeed or fail upon our assessment of the reasons the Tribunal gave for the rejection of the applicant’s claims but it must be the case that a proper understanding of the content of the information will assist in that process. At the very least the material will be of apparent relevance to that process.
I am much less certain that similar considerations apply in relation to the grounds advanced relating to the illogicality and irrationality.
Had the Minister’s response to the Notice asked me to give consideration to more general policy considerations arising out of the confidential nature of the material in the Certificate, the determination of the application to set aside the Certificate might have been more vexed. That circumstance, and the circumstance that I am at this stage only authorising the production of the material to the Court, anterior to any to question of release of information to the applicant himself, assists me in coming to the conclusion that the production of the material sought in the Notice should be authorised. It is a conclusion which I think is inevitable having regard to the nature of the review which is about to be undertaken.
The application to set aside the Notice to Produce is refused.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 6 July 2007
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