Kokcinar v Minister for Immigration and Anor (No.2)
[2008] FMCA 1307
•23 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOKCINAR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2008] FMCA 1307 |
| MIGRATION – Review of Migration Review Tribunal decision – application for spouse visa – domestic violence criteria – whether genuine spousal relationship – s.375A Certificate issues with respect to documents including nominator’s account of relationship – applicant not aware of nominator’s account – alleged jurisdictional errors including in relation to the Tribunal’s discharge of its s.359A obligations – application allowed. |
| Migration Act 1958 (Cth), ss.357A, 359A, 362A, 375A, 474, 476 & 477 Migration Regulations 1995 (Cth), reg.100 Freedom of Information Act 1982 (Cth), s.58(5) Privacy Act1988 (Cth) |
| Craig v The State of South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SBLF v Minister for Immigration & Citizenship [2008] FCA 1219 Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 |
| Applicant: | SUKRU KOKCINAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 242 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 22 February 2008 |
| Date of Last Submission: | 20 March 2008 (via written submissions) |
| Delivered at: | Adelaide |
| Delivered on: | 23 September 2008 |
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
A writ of certiorari issue directing the second respondent to quash the decision made by it in relation to the applicant and dated 27 June 2006.
A writ of mandamus issue directing the second respondent to determine the applicant’s Application dated 11 February 2004 to the second respondent for review of the delegate’s decision according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 242 of 2006
| SUKRU KOKCINAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.476 of the Migration Act 1958 (the “Act”) for orders by way of certiorari quashing a decision of the Migration Review Tribunal (the “Tribunal”) of 27 July 2006 and by way of mandamus requiring the Tribunal to review the decision of a delegate of the Minister made on 25 May 2005 according to law.
The decision is a privative clause decision under s.474 of the Act and no remedy will be available unless it can be demonstrated to be a decision made in excess of or for want of jurisdiction - that is, a decision vitiated by jurisdictional error as that concept has been explained in cases such as Craig v The State of South Australia (1995) 184 CLR 163.
On 6 July 2007 I dealt with an application to set aside the Notice to Produce filed in these proceedings on behalf of the applicant. I refused the application to set the Notice aside. The documents sought in the Notice have been produced. They are in a somewhat redacted form but no issue arises in relation to the excisions (some of which were already made when the documents were before the Tribunal and some of which have been effected by the respondent’s solicitors since then).
The documents produced were the subject of a s.375A certificate dated 29 June 2005, following the filing of an application before the Tribunal by the applicant seeking review of the delegate’s decision of 25 May 2005, and thus were seen by the Tribunal but not by any other person (including of course the applicant and his advisers) involved in the proceedings before the Tribunal.
The full text of the Certificate is set out at CB 103. It provides:
In accordance with s.375A of the Migration Act 1958, I certify that the disclosure, otherwise than to the Migration Review Tribunal, of any matter or information contained in folios 65-71, 73, 78, 115, 118-120, 127-129 of Departmental file OSF2004/000084 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 procedures.
The document or information referred to in the paragraph above must only be disclosed to the Migration Review Tribunal.
The delegate had before her an application for a Partner (Migrant) (Class BC) visa, filed on 11 February 2004. The applicant had married his nominator in Turkey in 2003. He entered Australia on 5 August 2004 on a sub-class 309 Spouse Visa.
The nominator advised the Department of Immigration on 2 January 2005 that her relationship with the applicant had broken down.
There was little information put by the applicant to the delegate as to how he claimed to satisfy the criteria for the grant of a migrant visa. The criteria are set forth in Regulation 100 of the Migration Regulations 1995 (Cth) (“the Regulations”). The applicant’s previous migration agent indicated that he was likely to rely on the domestic violence provisions described in sub-regulation (3) but nothing was offered to substantiate the claim at that stage.
By the time that he had filed all of his material in support of his application before the Tribunal, the applicant was seeking a visa sub-class 801. The criteria he acknowledges he has to satisfy for the grant of that visa (see his agent’s letter of 19 May 2006 at CB 149) are the same in substance as those to the delegate considered in issue before her. That is, he had to satisfy the Tribunal that he had suffered domestic violence.
The letter makes it clear that the domestic violence criteria are the gravamen of his claim for entitlement to a visa.
The Tribunal certainly understood that such was the case. It took the view that preliminary to making such findings it needed to be satisfied that the parties had been in a genuine and continuing spouse relationship and went to the Regulations, and in particular Regulation 1.15A, for guidance in relation thereto. Whether the focus should be the time of application for the visa or the time of hearing before the delegate was not the subject of any attention by the Tribunal but before me the applicant did not take any point in relation to this aspect of the matter and no issue as to the Tribunal’s approach - of having to be satisfied of the existence of a genuine and continuing domestic relationship as a pre-condition to findings as to domestic violence - was raised before me.
Four contentions of entitlement to relief were argued before me - the first bound up with the validity of the s.375A Notice, and the remaining three grounds being advanced independently of any criticism of the Notice.
I should note some important matters about the way the hearing proceeded before the Tribunal. Firstly, before the oral hearing was conducted on 23 May 2006, the Tribunal received the applicant’s statutory declaration and that of a psychologist and social worker relating to the domestic violence provisions, together with his agent’s written submissions. The applicant gave evidence at the hearing. The material that had been provided to the Tribunal under the aegis of the s.375A Certificate was not described to the applicant at the hearing except in the most general way. Rather the Tribunal resolved to provide details in writing and invite the applicant to respond in writing at that stage. A s.357A Letter was sent to the applicant on 29 May 2006. The letter specified ten separate pieces of information that the Tribunal considered “credible, relevant and significant” and which may be then a part of the reason for affirming the delegate’s decision. The applicant responded to that material by way of a further letter from his agent, which also enclosed further statutory declarations of the applicant, a brother and two Adelaide friends and several letters from business associates.
By this stage the applicant was well and truly on notice of the approach that the Tribunal was taking. The s.357A letter said that (at CB183.9):
This information is relevant to the review because it may adversely affect the Tribunal’s assessment of whether or not the relationship between you and the nominator was genuine and continuing after your arrival in Australia. If the Tribunal is not satisfied that the relationship between you and the nominator was genuine and continuing after your arrival in Australia, it will not consider whether you are a victim of domestic violence as claimed.
This is the course the Tribunal ultimately adopted.
The first contention of the applicant relates to the s.375A Notice itself. It is said to be invalid on account of jurisdictional error. It should be immediately noted that the constitutional relief is sought not in relation to the Certificate - the challenge is to the Tribunal’s decision of 27 June 2007 – but, on this ground, by way of collateral challenge to the s.375A Certificate. On the basis of the invalidity of the s.375A Certificate, two consequences are said to follow. First, it is said that it distorted the Tribunal’s compliance with its obligations under s.359A - because it thought the Certificate valid, the Tribunal, it is said, only partially disclosed the particulars of its reasons for decision and did so in a way that gave rise to jurisdictional error. Secondly, it is said to have effected the Tribunal’s compliance with s.362A of the Act. That section is a section that applies to hearings before the Migration Review Tribunal. (There is no equivalent section relating to the Refugee Review Tribunal.)
Section 362A(1) provides:
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.
The Tribunal responded to the applicant’s request for access to the Migration Review Tribunal and Department of Immigration and Multicultural Affairs’ files by quarantining those documents the subject of the s.375A Notice (other documents were withheld under the provisions of the Privacy Act 1988 (Cth), as authorised by s.362A(2) of the Act). Once again, the applicant contends that the Tribunal’s reliance in this context on the invalid s.375A Notice gives rise to jurisdictional error.
Before examining these claims we must examine the validity of the s.375A Certificate.
Mr Ower, for the applicant, contends that the section requires the establishment of three jurisdictional facts, namely:
a)the disclosure must be contrary to the public interest for a specified reason;
b)the Minister or his delegate must certify the specified reason; and
c)the Certificate must include a statement that the documents must only be disclosed to the Tribunal.
If any of these jurisdictional facts are not made out, the consequence at law, it is said, is that there is no Certificate at all. Reliance is placed in this regard upon the judgment of Gaudron and Gummow JJ in the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51].
Mr Ower says an examination of the documents, now possible in these proceedings, indicates that their disclosure was not capable of being contrary to the public interest on the two grounds claimed in that Certificate (see [5] hereof for the text of the Certificate).
The information contained in the now released documents is in the following categories:
a)Information provided by the nominator, clearly intended to be confidential (Folio 68 to 65 and Folio 69). The name of the nominator was removed from these documents prior to their provision to the Tribunal, but the information is plainly being provided by the nominator (as noted at [3] above, counsel before me agreed as to what was before the Tribunal and what was subsequently excised from the documents).
b)A statutory declaration of another Australian woman acquainted with the applicant and nominator.
c)A letter from the nominator’s Federal Member of Parliament raising his concerns about the process following the nominator’s disclosure to the Department of the end of the relationship between her and the applicant. This document had already made its way into the Court Book when the proceedings came before me.
d)A letter from the Department to the nominator following the advice received as to the end of the relationship, sent in February 2005; again, this is a document that had already been released by the time the hearing commenced before me.
e)A confidential Departmental email relaying information provided in a telephone call anonymously about the applicant.
f)A confidential email from the Department in Adelaide to its representatives in Ankara, Turkey, seeking information in relation to the application.
I remind myself that the Certificate of the delegate of the Minister is not a decision in respect of which constitutional relief is sought. I was not asked to consider whether it is a decision that would be capable of review. It does not appear to be a primary decision in terms of s.476 of the Act. It would be a privative clause decision under s.474 of the Act unless jurisdictional error was established. Any application would be well out of time in any event (see s.477 of the Act). I have not been asked to give any consideration to such matters. The challenge to the Certificate is collateral to the challenge to the Tribunal’s visa decision.
The Certificate in concerning for a number of reasons. Firstly, it is difficult to discern any way in which the second public interest reason maintains with respect to the documents. Neither the inter-office communications nor the politician’s letter nor the records of information taken from the nominator from the anonymous telephone call disclose methods or procedures involved in detecting law-evasion. Such a claim is disingenuous at least; “misleading” would seem to be a fairer description. No strategy or tactic engaged in by a Departmental officer is revealed - the documents simply reveal the receipt and in some cases exchange of information. One assumes that the receipt of such information is a common incident of Departmental work. Looking at the material, no insight is given, for example, as to how information may be obtained or informants recruited or managed by Departmental officers. No use of technology for eavesdropping purposes, for example, is revealed - these are the kinds of “methods” - to use the precise language of the Certificate - disclosure of which would be contrary to the public interest. How can it be reasonably maintained that the effectiveness of any law-enforcement or breach-detection technique is prejudiced by the applicant being given access to such documents?
But it is important to consider the totality of the grounds put forth in the Certificate. There is another ground alleged.
The High Court considered the “public interest” ground of exclusion of documents in the context of a statutory right of review relating to the freedom of information legislation in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. Section 58(5) of the Freedom of Information Act 1982 (Cth) provided for review by the Administrative Appeals Tribunal (the “AAT”) of a decision denying access to a document. The section provided that the Administrative Appeals Tribunal should determine whether reasonable grounds existed for the Minister’s claim that the disclosure of the document would be contrary to the public interest. Hayne J says at [55] - [56]:
55.… That is why a question of “the public interest” will seldom be properly seen as having only one dimension. But s.58(5) can be engaged only where a Minister has decided that the disclosure of document would be contrary to “the public interest” and has specified the ground or grounds of public interest in relation to which the certificate is given. The Minister’s decision that disclosure would be contrary to the public interest is a judgment about which reasonable minds may very well differ. But the Tribunal is not charged with the task of deciding what assessment of the public interest is to be preferred. Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?
56. Again it may be accepted that there may be (and very often will be) competing considerations that are relevant to what I have called the statutory question posed by s.58(5). The Tribunal’s task is not be confined to examining those considerations separately. In particular, it is not to be confined to deciding whether one of the considerations advanced in support of a claim, that a document or documents should not be disclosed, can be seen to be based in reason. Rather, the Tribunal’s task is to decide whether the conclusion expressed in the certificate (that disclosure of particular documents would be contrary to the public interest) can be supported by logical arguments which, taken together, are reasonably open to be adopted and which, if adopted, would support the conclusion expressed in the certificate. The focus of the Tribunal must be upon the grounds for the conclusion. Are those grounds “reasonable grounds”?
I am not undertaking any kind of statutory review of the issue of the s.375A Certificate as the AAT was undertaking of the certificate in that case, but that analysis from the perspective of a statutory review of reasonableness of grounds is helpful in evaluating whether the conditions for the issue of the Certificate had been met.
What of the first ground addressed in the Certificate? It provided:
Information provided in confidence and where the provider of the information has not consented to the disclosure of the information to the review applicant
Really the words after the fourth word - confidence - add nothing to what has gone before. The claim is that the disclosure would be contrary to the public interest because of the confidentiality of the provision of the information in itself.
Firstly, a number of the documents do not fall into that category, though the significance ones - containing information from the nominator - most certainly do. The fact that the claim could not extend to the totality of the documents does not vitiate the claim that disclosure would be contrary to the public interest in a general sense.
This was a case where the applicant was claiming to have been a victim of domestic violence at the hands of the nominator. The nominator’s account of her relationship with the applicant must plainly have been relevant to the state of satisfaction of the delegate, and the Tribunal, in relation to such matters.
The nominator claimed confidentiality for what she reported to the Department. Folio 66 indicates under the heading “Outcomes”:
[Blank] requires complete anonymity in relation to this statement, in particular the release of any personal information in relation to her current contact details, due to the personal safety issues.
We know from the material contained in Folio 66 that the nominator advises that a friend of the applicant has threatened her personal safety. Another person whose name is not released is said to have witnessed the violence of this friend. The nominator indicates that she attempted to obtain police assistance on the basis of this second-hand, or possibly third-hand, hearsay. The anonymity requested is said to have been requested particularly in relation to the release of personal information. It is the request for anonymity which must be taken to have given rise to the first ground claimed in the s.375A Certificate. In other words, it is the claim for confidentiality which in itself renders the information supplied liable to be the subject of a s.375A Certificate. Of course, if a person only provides information on the basis of assurances about confidentiality they have a reasonable expectation that the assurance will be honoured but the question is whether such assurance should be given in a case such as this where the information is from so important a source as the spouse herself and of such significance of the outcome of the visa application.
The satisfactoriness of this kind of arrangement for the evaluation of domestic violence criteria must be doubted. It is apparent from the document comprising Folio 69 that the Privacy Act prohibited any information being provided to the nominator about the applicant’s claim or as to the issue of domestic violence. Concomitantly, his knowledge of her claims about him and his conduct and their relationship are kept from him by reason of the s.375A Certificate. Neither is given the direct opportunity (or are obliged to accept the responsibility) of meeting or at least responding to the claims of the other about them. The outcome of such a process is not likely to be helpful in terms of getting at the truth about the relationship.
This brings us to a consideration of the s.359A Letter sent by the Tribunal to the applicant on 29 May 2006. Mr Tredrea, for the respondents, submitted that a focus on the s.375A Certificate muddied the water in relation to the real issue which was whether the Tribunal complied with its obligations under s.359A.
The s.359A Letter is set out CB 182. Ten dot points in the letter set out the information the Tribunal has received. In fact, the dot points include information given by the applicant (as being inconsistent with other information) and also contains material from sources other than that covered by the Certificate; for example, the order made by the Brisbane Magistrates Court on an intervention order application of the nominator. It also includes material that forms part of a letter written by the Janette Young, the nominator (but curiously referring to herself in the third person), released by the Tribunal in response to the s.362A request (CB 118). There is one piece of information in the dot points - the fact that the nominator and the applicant were married at a hotel - the provenance of which is uncertain as far as I can tell.
In a supplementary submission, Mr Ower tabulated information in the material covered by the Certificate which was not disclosed in the s.359A Certificate. But Mr Tredrea is right, I think, in saying that identification of such material is not to the point. Firstly, the Tribunal never claimed that is was relying on all of the information as the reason for its decision; and, therefore, secondly, because the s.359A Certificate need only set out what is relied upon as forming part of its reasoning, not simply any material which the Tribunal thinks relevant to the application (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [15], in relation to s.424A of the Act, the analogous section of the Act in relation to the Refugee Review Tribunal).
The Tribunal summarised its understanding of what it was doing at CB 225.3:
The Tribunal provided the review applicant with a general description of all of the credible, relevant and significant information provided to the Department which may be the reason or part of the reason for the Tribunal to affirm the decision under review. The Tribunal was prohibited under section 375A of the Act from disclosing particulars of that information to the review applicant.
But let us summarise the state of affairs at this point.
The delegate of the Minister on 29 June 2005 (that is, after the delegate’s refusal of the visa but before the Tribunal hearing) had issued a Certificate which keeps a range of documents from the applicant and which, in my view, wrongly recognised the claim for confidentiality by the nominator as determinative of the public interest claim on that ground and also wrongly claimed such public interest on the ground of the protection of investigative methods in that the documents the subject of the Certificate were not capable of disclosing the investigative methods or procedures.
Against the background of that Certificate, then, the Tribunal has gone about the discharge of its obligations under s.359A to disclose to the applicant the particulars of those matters forming part of the reason for affirming the decision of the delegate under review.
The s.359A Letter discloses some information the Tribunal has relied upon which the applicant would know the source of. Dot point 2 is information released from “Janette Young” in response to the s.362A request. That occurred in September 2005, after the review was instituted before the Tribunal but well before the oral hearing.
Where it has not clearly arisen from available documents or from the applicant himself, the dot points in the s.359A Notice plainly comes from or arises out of the information I have inferred was provided to the Department by the applicant (folios 68 to 65 and folio 69). I know that but the applicant would not have known that. He would not have known that the most significant information in the s.359A Notice was derived from the nominator. That has been withheld from him (in both the s.359A Notice and the s.362A response) because the nominator claimed confidentiality and the delegate in June 2005 considered that by virtue of such claim the public interest exemption was available in relation to the documents. I have already noted that the grounds on which confidentiality were promoted were on the basis of what another person had told the nominator that yet another person had told him or her.
The absence of the documents covered by the s.375A Certificate from the Tribunal’s response to the s.362A request is directly referable to the Certificate itself, though, curiously, the Tribunal when responding to the s.362A Notice (CB 118) characterises the documents the subject of the Certificate as containing “personal information relating to individuals other than the applicant”. That is not one of the two grounds from exemption set out in the Certificate.
All of this is very unsatisfactory in my view. The applicant should have known what the nominator was alleging about the nature of their relationship. He should have known that it is the nominator who is the source of the most significant allegations set out in the s.359A Notice (I have noted, incidentally, that she should also have been aware of what he was claiming that regard). They were the two persons who would know the most about whether and, if so, when, a genuine spousal relationship existed between them.
The s.375A Certificate should not have been issued. There was no public interest in keeping the documents described in the Certificate from the applicant. The documents should have been released in response to the s.362A request.
Those parts of the information covered by the Certificate, considered to be part of the reason for affirming the delegate’s decision and which is detailed in the s.359A Notice, are disclosed without any information being provided as to their provenance, that is, that it is in a significant way derived from the nominator herself. That must surely have formed part of the reason for affirming the decision of the delegate. If the same information had been provided by some unrelated source whose claims to have knowledge of the matters was obscured then it is not likely to have formed part of the reason for affirming the decision of the delegate. It is the source of the information that it is as significant as anything else. The applicant needed to be told that it was information from the nominator for him in reality been afforded his entitlements under s.359A of the Act. He was not afforded his entitlements because the s.375A Certificate wrongly prevented the Tribunal from releasing that information to him.
Whether jurisdictional error attends or does not attend the issue of the Certificate is not the issue (neither is the question of whether jurisdictional error issue attended the s.362A response). It is the visa decision with which we are concerned. The complaint is that jurisdictional error attended the Tribunal’s decision in respect of its discharge of its s.359A obligations and I am satisfied, for the reasons that I have given, that it does. This is not an error within jurisdiction. It vitiated the whole utility of the task the Tribunal was undertaking. I am not certain that my concerns in relation to the interrelationship between the Certificate and the s.359A letter have the same basis as that upon which the applicant before me alleged jurisdictional error in relation to the s.359A Notice but it is where the jurisdictional error is to be found in my view.
In any event, the complaint is one about non-compliance with s.359A of the Act. It is not a claim that the applicant was denied procedural fairness on account of the issue of the s.375A Certificate and its consequences. If it were, the argument would be met by the terms of s.357A, which makes it clear that the common law natural justice hearing rule is excluded. Notwithstanding the doubt expressed by Gray J in SBLF v Minister for Immigration & Citizenship [2008] FCA 1219 at [33], there is now binding Full Court authority to this effect (see Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62).
Because I have determined that jurisdictional error attended the discharge of the Tribunal’s obligations under s.359A it is unnecessary for me to consider the alternative grounds upon which jurisdictional error was alleged.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 23 September 2008
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