Lee v Minister for Immigration
[2018] FCCA 663
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEE v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 663 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal finding that the sponsor died before the applicant applied for the visa – whether that finding was open to the Tribunal considered – certificate issued pursuant to s.375A of the Migration Act 1958 (Cth) in respect of departmental legal advice – whether the certificate was valid and whether it impacted upon the validity of the Tribunal decision considered – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36 Evidence Act 1995 (Cth), ss.55, 118 Freedom of Information Act 1982 (Cth), s.42 Legislation Act 2003 (Cth) Migration Act 1958 (Cth), ss.351, 359A, 375A, 424A, 425, 476, 477 Migration Regulations 1994 (Cth) |
| Cases cited: Attorney-General (NT) v Kearney (1985) 158 CLR 500 Keung v Abbott [2017] SASCFC 58 Mann v Carnell (1999) 201 CLR 1 |
| Applicant: | HYE SUK LEE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1888 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 March 2018 |
| Date of Last Submission: | 6 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Dr C Spencer, with Ms Jones, of Cedric Spencer Lawyers |
| Solicitors for the Respondents: | Mr W Sharpe of Minter Ellison |
ORDERS
The application lodged on 19 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1888 of 2016
| HYE SUK LEE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Ms Lee) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 April 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Lee a temporary partner visa.
The following statement of background facts is derived from the submissions of the parties.
As described by the Tribunal, “the sad facts of this case” are that the partner of Ms Lee is deceased, and the visa applicant can only meet the criteria for the visa if he was alive when the application for the visa was made.[1]
[1] Court Book (CB) 277 at [6]
Ms Lee submitted an application for a partner visa and a Class BS (Partner – Residence) visa.[2] The application was received by the Minister’s Department on 14 August 2013.
[2] CB 1 – 91
Ms Lee claimed to be in a de facto relationship with Mr Robert Craske, who was an Australian citizen. Information provided by Ms Lee to the Minister’s Department included a report from the coroner indicating that Mr Craske died sometime between 22 July 2013 and 14 August 2013.[3] His body was found in the Lane Cove National Park on 15 August 2013.
[3] CB 132
The death of Mr Craske, and the timing of his death, gained greater significance in the Tribunal proceedings that followed the refusal of the visa application by the delegate.
The delegate's decision was made on 20 February 2015,[4] and was notified by email.[5] An application for review of the delegate's decision was lodged with the (then) Migration Review Tribunal on 8 March 2015.[6]
[4] CB 165 – 184
[5] CB 154
[6] CB 185 - 186
By letter dated 17 February 2016 the Tribunal invited Ms Lee to provide information concerning the death of her partner for the purposes of assessing whether she satisfied the criterion at clause 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[7] The request stated:
[7] CB 198 – 201
You are invited to provide the following information in writing:
· You applied for a Partner (Temporary) (Class UK) visa on 14 August 2013. The Tribunal must consider whether you meet the criterion in cl.820.211 (2) that you were Mr Craske's spouse or de facto partner when you applied for the visa.
· The information in the documents you provided to the Department indicates Mr Craske was missing from 22 July to 14 August 2013 and that he died at some time during that period. In the absence of additional evidence, the Tribunal might infer Mr Craske died before the Department received your visa application on 14 August 2013. In that case, it would find that you were not his spouse or de facto partner at that time and therefore did not meet the cl.820.211(2) criteria. This would be a reason to affirm the decision to refuse to grant you the visa.
I invite you to provide any available information and documents relevant to Mr Craske's date and time of death, such as·his death certificate, autopsy reports or reports by the NSW Coroner about Mr Craske's death. The information should be received by 2 March 2016.
Ms Lee sought an extension of time to provide the information and was granted an extension until 11 March 2016.[8] In the interim Ms Lee appointed an agent to represent her before the Tribunal.[9]
[8] CB 213
[9] CB 210
On 10 March 2016 Ms Lee’s agent wrote to the Tribunal by email and provided several additional documents, including the death certificate for Mr Craske.[10] The email from the agent included the following claims:
In relation to whether Mr Robert John Craske was alive when he was missing between 22 July and 14 August 2013, the death certificate provided in Annexure “C” suggests that he could be alive as the ‘date of death’ was recorded as between 22 July and 14 August 2013. Therefore, it could [be] argued that Mr Craske was alive at the time of the visa application and the applicant was his de facto partner - we draw your attention to the record on the death certificate establishing that Ms Hye Suk Lee is the de facto partner of Mr Craske - s21C Interpretation Act 1987 (NSW); Births, Deaths, and Marriages Registration Act 1995 (NSW) - and submit that the applicant meets the cl.820.211(2) criteria -s15AB Acts Interpretation Act 1901 (Cth); Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397; McDonald v Director-General of Social Security (1984) 1 FCR 354.
[10] CB 214 - 215
With respect to the timing of the visa application, and how that related to the timing of Mr Craske's death, the email from the agent stated:
The visa application was posted to the Department of Immigration and Border Protection (the “Department”) on 9 August 2013, and was stamped received on 14 August 2013. Therefore, the visa application could not have been lodged after Mr Craske's death, nor there could [sic] be inference drawn from the facts to suggest the visa application was lodged with her knowledge of his death - Minister of Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41.
Prior to the hearing before the Tribunal, Ms Lee’s migration agent also submitted a report from a psychologist.[11] The report was relied upon to demonstrate that Ms Lee had been undergoing treatment and had been suffering from grief and loss as a result of the death of Mr Craske. The report was submitted for the purposes of seeking to establish “that there are compelling reasons for the Tribunal to consider when deciding the merits in favour of the applicant Ms Hye Suk Lee”,[12] with reference being made to the decision in Waensila v Minister for Immigration.[13]
[11] CB 261 – 266
[12] CB 258
[13] [2016] FCAFC 32
On 19 April 2016 the Tribunal affirmed the decision under review.[14]
[14] CB 276 – 278
Tribunal decision
The Tribunal accepted that Ms Lee and Mr Craske were in a genuine relationship.[15] The Tribunal identified the relevant issue to be determined was whether Mr Craske was alive when Ms Lee applied for the visa.[16] This was relevant to the Tribunal determining whether the requirements of clause 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) were satisfied.
[15] Transcript, page 3 at line 19
[16] CB at 277 at [6]
The Tribunal noted that alternative criteria at clause 820.211 were not relevant to Ms Lee’s circumstances.[17]
[17] CB 277 at [5]
The terms of clause 820.211(2) relevantly provided that an applicant met the requirements of that subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.
The Tribunal noted that Mr Craske's death certificate records his date of death as between 22 July 2013 and 14 August 2013.[18] The Tribunal notes that Ms Lee’s visa application was date stamped as having been received on 14 August 2013.[19]
[18] CB 299 at [8]
[19] CB 299 at [9]
The Tribunal found that the application was made when it was received by the Minister’s Department (i.e. on 14 August 2013), and not when Ms Lee placed the application in the post (i.e. 9 August 2013).[20] At the hearing, the Tribunal suggested that Mr Craske was not alive on 14 August 2013, leading it to the view that it followed that the applicant did not meet clause 820.211(2).[21]
[20] CB 299 at [9]
[21] at [9]
The Tribunal did, however, consider in the alternative whether it would assist Ms Lee if her application was taken to have been made on 9 August 2013. But that alternative was found not to assist, the Tribunal reasoning:[22]
Mr Spencer submitted that the facts gave rise to a suspicion that Mr Craske died before 9 August 2013 but that it was not open to find that was the case based on that suspicion. However, Ms Lee applied for the visa based on her ongoing de facto relationship with Mr Craske and she told the Tribunal he had never been missing before. The Tribunal infers from those circumstances that, if he were able, Mr Craske would have returned to the home he shared with Ms Lee on 22 July 2013 or sometime during the following days. He did not do so and it is therefore more probable than not that he died on 22 July 2013 or very soon afterwards. On that basis, rather than on a mere suspicion, the Tribunal finds that he was not alive when Ms Lee applied for the visa some weeks later, whether that was on 9 or 14 August 2013.
[22] CB 278 at [14]
The present proceedings
These proceedings began with a show cause application lodged on 19 July 2016. Ms Lee continues to rely upon that application. The grounds of review in it are:
1.The Applicant applies for a Judicial Review on whether the Ministerial Intervention request outcome under s351 of the Migration Act 1958 was correctly applied against the Minister's guidelines on ministerial powers pursuant to ss351, 417, 501J, or whether the Applicant's case has one or more unique or exceptional circumstances.
2.The Applicant applies for a Judicial Review on whether the Tribunal correctly determined that Mr Craske was dead on 22/07/2016 [sic], whereas the death certificate states that he died between 22/07/2013 and 14/08/2013 from heroin toxicity and coronary artery atherosclerosis.
That application was lodged 56 days outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). Ms Lee sought an extension of time pursuant to s.477(2) of the Migration Act. I granted that extension of time, noting that the delay in this matter was not excessively long, Ms Lee had provided an explanation for the delay, which indicated some uncertainty and difficulty in dealing with her former migration agent, and an issue of significance arose on the application, namely whether it was open to the Tribunal to find that Mr Craske died at any particular point within the span of time nominated on his death certificate. The case also raises for consideration a non-disclosure certificate purportedly issued under s.375A of the Migration Act concerning internal legal advice.
I received at the trial the following evidence:
a)the court book filed on 29 September 2016;
b)the affidavit of Ms Lee made on 15 September 2016, to which is annexed a transcript of the hearing conducted by the Tribunal on 11 April 2016;
c)the affidavit of Ms Lee made on 9 August 2017, to which is annexed a revised death certificate for Mr Craske and an accompanying letter from the Coroners Court of New South Wales, stating that the coroner had been informed that Mr Craskedied between 23 July 2013 and 15 August 2013;[23]
d)the affidavit of Ms Lee made on 19 July 2016, in which she explains her delay in lodging the show cause application; and
e)the affidavit of Jennifer Louise Strugnell made on 11 August 2017, to which is annexed the purported non-disclosure certificate and documents relating to a freedom of information request.
[23] although that information was not before the Tribunal, I have taken it into account as it establishes that there would be a live issue for the Tribunal to determine if the case is remitted to the Tribunal
The legal opinion purportedly covered by the certificate (which is the only document referred to in the certificate) was initially not provided by the Court on the basis of claim for legal professional privilege. I invited the Minister’s legal representative to consider further that claim in the light of information concerning the source of the advice and the recipient and the circumstances in which the advice was given. I also invited further submissions from the parties concerning any general principles relating to the passage of time derived from the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) or the Legislation Act 2003 (Cth) (Legislation Act).
The Minister took up that opportunity in further submissions and two affidavits filed on 6 April 2018. The affidavit of Julian D’Arcey Pinder made on that day details his search of the file from the Minister’s Department, both in hard copy and electronic form. The affidavit of Myra Kochárdy, also made on that day, details the request for legal advice made to her and the advice she provided. The further affidavit of Ms Strugnell made on the same day provides further evidence in relation to the request for legal advice and the advice, which were not included in the court book. Both documents were thereupon provided to the Court on a confidential basis and without otherwise waiving any legal professional privilege in the documents.
Consideration
I accept the Minister’s submissions on the grounds of review advanced.
Ground 1
This ground of review is misconceived: first, because it appears to ask the Court to make its own determination as to whether the applicant meets ministerial guidelines for intervention; secondly, because the decision of which the applicant seeks review is not a decision to which the jurisdiction at s.476 of the Migration Act extends.
Further, this ground of review appears to ask that the Court review the merits of a decision with respect to a request for intervention under s.351 of the Migration Act. As the Court cannot undertake a review of the merits of a decision on an application for judicial review, the ground must fail.
In any event, this ground cannot succeed because, in the absence of a decision by the Minister to the effect that he would consider exercising one or more of the dispensing powers under the Migration Act, the Court has no jurisdiction to review a decision in relation to the application of the intervention guidelines.[24]
[24] cf Minister for Immigration v SZSSJ [2016] HCA 29
Ground 2
This ground of review indicates Ms Lee’s disagreement with the Tribunal's finding regarding the date of Mr Craske’s death.
At [14] of its reasons the Tribunal found that “it is … more probable than not that he died on 22 July 2013 or sometime during the following days”. However, the issue the Tribunal was addressing was whether Mr Craske was alive when Ms Lee applied for the visa. Ms Lee argued before the Tribunal that she applied on 9 August 2013. The relevance of that date was that Mr Craske’s death certificate before the Tribunal stated that he died between the dates of 22 July 2013 and 14 August 2013.
Contrary to Ms Lee’s argument, the Tribunal correctly found that the application for the visa was made on 14 August 2013.[25] However, I disagree with the Tribunal’s following proposition that “the death certificate indicated that Mr Craske was not alive on that day and it followed Ms Lee did not meet the relevant criterion”.[26] Consistently with s.36 of the Acts Interpretation Act and the general law,[27] the period of time within which Mr Craske was found to have died included the whole of 14 August 2013, being the day on which the partner visa application was received by the Minister’s Department. If Mr Craske was alive on that day, when the visa application was received, Ms Lee would overcome the obstacle to her visa being granted. Further, the Tribunal’s expression of opinion was not a finding sufficient to determine Ms Lee’s application for review.
[25] at [13]
[26] at [9]
[27] see Prowse v McIntyre & Ors (1961) 111 CLR 264
However, having made the finding as to when the application for the visa was made, the Tribunal also entertained the alternative proposition put by Ms Lee’s representative: that the visa application should be taken to have been made on 9 August 2013, and therefore (apparently) that it was open to the Tribunal to find that Mr Craske was alive when the application was made. It is clear that in considering this alternative proposition, the Tribunal did not agree that the application was made on 9 August 2013.
Nevertheless, the Tribunal found that even if the alternative proposition were accepted, Ms Lee would still fail to meet the criterion. This was because the Tribunal considered it was “more probable” that Mr Craske died on “22 July 2013 or very soon afterwards”. The Minister submits that that finding was open to the Tribunal on the evidence before it.
The question is whether it was open to the Tribunal to identify an earlier point of time within the period specified in the death certificate before it, that Mr Craske died. I enquired of Ms Lee’s representatives whether there was anything in state law which prevented a time of death being identified within a span of time specified on a death certificate. They were not able to point to anything. Although Ms Lee appears to imply that the finding was inconsistent with the death certificate (which it is not) the Tribunal relied upon other evidence given at the hearing. The Tribunal demonstrated a rational and logical course of reasoning in reaching the conclusion that it did. Ms Lee cannot ask the Court to substitute a different finding simply because she disagrees with the Tribunal. The ground of review seeks to engage the Court in impermissible merits review and it cannot succeed for that reason.
I conclude that it was open to the Tribunal to draw a conclusion based on the material before it as to when Mr Craske died, within the period specified on the death certificate. He had been missing for the better part of a month. In answer to a question from the Tribunal, Ms Lee stated that it was out of character for Mr Craske to absent himself from her without any explanation. While somewhat tenuous, this response provided a factual basis for the Tribunal to conclude that it was more likely that Mr Craske died in the early part of the period he was missing rather than the very end of it. That conclusion being open to the Tribunal, this ground fails.
The s.375A certificate
The Minister’s submissions
The Minister observes that the Minister’s Department's file in respect of the partner visa application (CLF2013/193621) (the Department's file) contains a certificate and notification regarding the disclosure of certain information only to the Migration Review Tribunal under s.375A of the Migration Act dated 19 March 2015 (the certificate).[28]
[28] Ms Strugnell’s affidavit affirmed on 11 August 2017 (Ms Strugnell’s affidavit)
The certificate relates to an internal legal opinion from the Minister’s Department. The certificate is expressed to cover folios 173 and 222 of the Department's file, however there is no folio reference to the legal opinion in the certificate itself. The document is titled “Legal Opinion—Sensitive”. The certificate is Annexure JLS-01 of the affidavit of Ms Strugnell.
For the reasons set out by Beach J in MZAFZ v Minister for Immigration,[29] the Minister submits that the certificate is valid.
[29] (2016) 243 FCR 1; [2016] FCA 1081
However, the Minister submits that whether or not the Court were to find that the certificate is valid, no jurisdictional error arises as a consequence of the issue of the certificate, either as a consequence of the decision of the Full Court of the Federal Court in Minister for Immigration v Singh[30] or the decision of Beach J in MZAFZ.
[30] (2016) 244 FCR 305; [2016] FCAFC 183
That is because there is no basis upon which it could be found that the Tribunal “acted on” the certificate. There is also no basis upon which Ms Lee could be found to have suffered practical injustice.
To say that a decision-maker has had regard to or acted on a document is to say that the decision-maker has treated the document as material in some way to the decision on review.[31]
[31] Minister for Immigration v CQZ15 [2017] FCAFC 194 at [65] per Kenny, Tracey and Griffiths JJ
Whether the Tribunal “acted on” the certificate in this case is a matter for the Court to determine for itself having regard to the evidence. The Minister submits that the documents covered by the certificate are relevant to the application before this Court (within the meaning of s.55 of the Evidence Act 1995 (Cth) (Evidence Act)) however, the document would, in the Minister’s submission, be covered by legal professional privilege (within the meaning of s.118 of the Evidence Act).
It does not appear that the existence of the s.375A certificate was disclosed to the applicant by the Tribunal, nor did the Tribunal consider the document which was the subject of the certificate.
The Minister notes that Ms Lee was made aware that the document existed by way of a freedom of information request.[32] The Minister submits, however, that there is nothing to suggest the Tribunal treated the document as material in some way to the decision on review.
[32] Annexure JLS02 to Ms Strugnell’s affidavit
The Minister submits that the document concerns advice about the validity of the application in circumstances where the sponsor had died prior to the lodgement of the application and considers possible avenues for the application's assessment. It does not, in the Minister’s submission, contain information relevant to the Tribunal's task, but rather the approach the Minister’s Department would take in assessing the application.
The Minister submits that the determination that Mr Craske had died before the visa application was made was a question of fact for the Tribunal to determine and that the Tribunal's findings were open to it on the evidence before it, and for the reasons that it gave. Ultimately, the Minister submits there is no basis upon which it could be said that the Tribunal “acted on” the certificate.[33]
[33] CQZ15 at [65]
The most compelling inference to draw from the absence of reference to that information in the Tribunal's reasons is said to be that the Tribunal did not consider it to be material to the review because it conducted its own assessment of this factual question. This approach was adopted by Judge Manousaridis in BIE15 v Minister for Immigration & Anor.[34]
[34] (2016) 314 FLR 392; [2016] FCCA 2978
The Minister further submits that the documents do not contain information that could have assisted Ms Lee, had the Tribunal had regard to the documents.[35]
[35] cf. SZMTA v Minister for Immigration [2017] FCA 1055 at [59] per White J
On that basis, there would be no jurisdictional error for denial of procedural fairness in the Tribunal not having raised the documents with the applicant for comment (as contemplated by Beach J in MZAFZ).
Further, in AVO15 v Minister for Immigration[36] Barker J found that the jurisdictional error found in Singh and MZAFZ had no practical application in a case where no substantive issue arises from non-disclosure. Having regard to the documents the subject of the certificate in that matter, Barker J found that the Tribunal “plainly had no regard to them and, on any view, they can have been of no, or only passing contextual, relevance to the application”.[37] The Federal Court found by reference to Minister for Immigration v WZARH[38] that, even if there was a technical breach, the applicant had not suffered any practical injustice.[39]
[36] [2017] FCA 566
[37] at [87]
[38] (2015) 256 CLR 326; [2015] HCA 40
[39] AVO15 at [91]
Ultimately, in determining whether there has been a breach of procedural fairness, the person alleging the breach of procedural fairness must establish a loss of opportunity to advance his or her case, and whether he or she will succeed is usually dependent on the circumstances of the case.[40]
[40] CQZ15 at [67] and [85]
If, on inspection, the documents covered by the certificate were found “to be incapable of having any bearing on the decision of the Tribunal” then the Court would find that non-disclosure of the certificate could not have deprived the applicant of an opportunity to advance his or her case before the Tribunal, whether or not the certificate was invalid.[41]
[41] CQZ15 at [69]
In MZAFZ Beach J hypothesised that the documents covered by the certificate in that matter contained information that was neutral or positive to the applicant's interests.[42] The Minister submits that, as the Court has before it in the present matter the certificate and information about the documents to which the certificate applied, it need not hypothesise about the nature or content of the documents covered by the certificate. The documents the subject of the certificate could not logically have had any bearing on the Tribunal's consideration of Ms Lee’s claims (for the reasons set out above). There is said to be no basis to infer that the Tribunal considered that the content of any of the documents subject to the certificate would be the reason or part of the reason for affirming the decision under review for the purposes of s.424A of the Migration Act, or that they contained or raised issues arising in relation to the decision under review for the purposes of s.425 of the Migration Act. Nor could such an inference possibly arise from the material. There was no other basis upon which a failure to disclose the documents could have constituted a denial of procedural fairness.
[42] MZAFZ at [46]
Finally, and irrespective of the Court's findings as to the validity of the certificate, even if the Court were to be satisfied that the Tribunal's failure to disclose the certificate, or the affected documents, constituted a denial of procedural fairness, the Minister submits that Ms Lee should be denied relief because disclosure could not have made any difference to the outcome of the review.[43]
[43] Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at 145–147; SZBYR v Minister for Immigration (2007) 81 ALJR 1190; [2007] HCA 26 at [28]; BEG15 v Minister for Immigration & Anor (2016) 315 FLR 196; [2016] FCCA 2778 at [68]
Resolution
Ms Lee has not sought to amend her application in order to challenge the validity of the certificate or, consequently, the decision of the Tribunal. Nevertheless, the Minister having raised the issue, the Court should deal with it.
The only document referred to in the certificate is the legal advice. That advice has not been disclosed to Ms Lee or her legal representatives, but, as noted above at [24], has been made available to the Court on a confidential basis and without otherwise waiving any legal professional privilege in the advice. I have perused both the legal advice and the request for advice which led to it.
The request for legal advice[44] was before the Tribunal on the Departmental file. The request appears at two places on the file as a copy of an email requesting legal advice. That request was not covered by the certificate. The Minister asserts legal professional privilege in the request for legal advice, as well as the advice given.
[44] JLS-1 to the affidavit of Ms Strugnell made on 6 April 2018
I accept that legal professional privilege has not been waived over the request for legal advice. It was provided to Ms Lee in heavily redacted form under s.42(1) of the Freedom of Information Act 1982 (Cth), from the copy of the Departmental file released to her on 22 May 2015 in response to a freedom of information request. A copy of the redacted document is annexed to the affidavit of Ms Strugnell made on 6 April 2018 and I am satisfied that there was no disclosure of the legal issue upon which advice was sought.
Although the request for legal advice was before the Tribunal, it is not apparent that the Tribunal had access to the legal advice given in response to that request.
The evidence before the Court is to the effect that:
a)the s.375A certificate was included on the Department’s file;[45]
b)the certificate itself does not record a folio number at which the advice appears on the Department’s file, but rather records the specific electronic digital document reference of the advice, namely CLD2014/18630774;
c)although the advice is saved to an electronic version of the Department’s file, it is not on the physical version of that file;[46] and
d)the Tribunal was provided with a copy of the physical file, but not the electronic version of the Department’s file.[47]
[45] see the affidavit of Ms Strugnell of 11 August 2017, at [5]
[46] see the affidavit of Ms Strugnell of 6 April 2018, at [8]
[47] see the affidavit of Mr Pinder of 6 April 2018, at [7]
I find that the legal advice was not provided to the Tribunal when the Departmental file was referred to the Tribunal or otherwise. There is nothing in the Tribunal’s decision that indicates any access to, or consideration of, the legal advice.
It follows, in my opinion, that there is no basis to find that the Tribunal had any regard to the legal advice. Further, there is no basis to find that there was any error in the Tribunal’s process with respect to the certificate. Ms Lee cannot have suffered any practical injustice by not being given the opportunity to comment on the advice or any reliance upon it by the Tribunal, when the advice was not available to the Tribunal to rely upon.
I am prepared to accept that the certificate is valid.
Unlike MZAFZ,[48] the advice is more than an internal working document. The Minister submits that there is a public interest in officers tasked with processing and deciding a visa application being able to obtain confidential advice regarding legal issues arising in relation to the advice. I accept that submission.
[48] (2016) 243 FCR 1; [2016] FCA 1081
In that regard, it is relevant to observe that legal professional privilege and public interest immunity both reflect certain aspects of public policy.[49] In the case of legal professional privilege, the rationale for its existence is that the privilege promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers (by keeping secret their communications).[50] That same public interest has been held to apply to communications between government decision makers and their advisers.[51]
[49] see Jacobsen v Rogers (1995) 182 CLR 572 at 589
[50] see eg Grant v Downs (1976) 135 CLR 674 at 685
[51] see, for instance, Waterford v Commonwealth (1987) 163 CLR 54 at 62-3 (per Mason and Wilson JJ) and 82 (per Deane J)
It is also clear that the doctrines of public interest immunity and legal professional privilege may overlap in the case of legal advice sought by government decision makers.[52] Of course, a claim of public interest immunity requires weighing the public interests for and against disclosure. Here, disclosure of the confidential legal advice would likely prejudice the proper functioning of government for essentially the reasons given above (those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers[53]). On the other side of the coin, for the reasons below, disclosure of the advice to the applicant would not have advanced her case, and hence the “interests of justice” did not demand that the advice be disclosed.[54]
[52] Waterford at 64 (per Mason and Wilson JJ) and Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 510
[53] Waterford at 62
[54] compare Sankey v Whitlam (1978) 142 CLR 1 at 38-39, 43 (per Gibbs ACJ)
As to the last mentioned matter, it is relevant to observe that the advice would attract legal professional privilege, it having been provided by an officer employed in the capacity of a professional legal advisor in a section of the Minister’s Department operating independently of those to whom the advice was provided, given in the form of an internal minute in response to a formal request for legal advice, and marked as “LEGAL-IN-CONFIDENCE”.[55]
[55] compare Waterford v Commonwealth (1987) 163 CLR 54 at 62-64 (per Mason and Wilson JJ), 72-73 (per Brennan J), and 79-82 (per Deane J). (see the affidavit of Ms Kochárdy affirmed on 6 April 2018)
Given that legal professional privilege applies in relation to proceedings before the Tribunal[56] and procedural fairness does not require the disclosure of communications that are subject to legal professional privilege,[57] the Tribunal cannot have been required to disclose the legal advice to Ms Lee, nor the fact of the legal advice (nor the substance of the advice in a way that would have disclosed the legal advice itself).
[56] see SZHWY v Minister for Immigration (2007) 159 FCR 1; [2007] FCAFC 64, at [44], [58]-[59]
[57] see Griffiths v Rose (2010) 190 FCR 173; [2010] FCA 964
Whereas disclosure of the legal advice to the Tribunal by the Minister’s Department (if this occurred) is not inconsistent with the maintenance of the privilege,[58] disclosure of either the advice or the fact that the advice may be relied upon by the Tribunal would have been inconsistent with the maintenance of the privilege.[59]
[58] see Mann v Carnell (1999) 201 CLR 1 at [33], and noting that the privilege is held by the Commonwealth, of which the Tribunal is part
[59] see Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86 at [67]
There is a further reason for arriving at that conclusion: that is, that there was no practical unfairness to the applicant in either the non-disclosure of the certificate or the non-disclosure of the legal advice (nor in the request for legal advice that was redacted from freedom of information release):
a)where the advice expresses opinions on the factual material presented to the Minister’s Department by Ms Lee, those opinions are not themselves required to be disclosed as relevant matters.[60] Rather, the Tribunal is required to bring to the attention of the applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”,[61] not, for instance, information that in the opinion of others may be a reason for affirming the decision;
b)the Tribunal wrote to Ms Lee on 17 February 2016 to bring to her attention matters that the Tribunal considered may be a reason for affirming the decision of the delegate,[62] including matters traversed in the advice, that continued to be relevant on the evidence that was before the Tribunal;
c)those matters were addressed by Ms Lee’s representative in an email to the Tribunal sent on 10 March 2016,[63] and by the provision of new information that was not provided to the Minister’s Department;[64]
d)those matters were also the subject of discussion between the presiding member of the Tribunal, Ms Lee, and Ms Lee’s representative at the hearing of the review on 11 April 2016;[65]
e)the factual foundation on which the opinions in the advice were given were known to Ms Lee, that information having been provided by Ms Lee herself either in her application for the visa or the “Notification of changes in circumstances” (Form 1022) received by the Minister’s Department from Ms Lee on 19 November 2013.[66] There was nothing in the advice that changed the factual foundation on which the application was to be determined by the delegate, or on which the application for review was to be determined by the Tribunal;
f)the factual foundation on which the advice was given, being the information presented by Ms Lee to the Minister’s Department, was subsequently overtaken by the presentation of new information to the Tribunal by Ms Lee and her representative. Hence, the opinions expressed in the advice had then lost any relevance that they may have previously had to the determination of the visa application; and
g)the best inference to be drawn from the absence of reference to the legal advice in the Tribunal's reasons is either that the Tribunal did not consider the advice at all (including in circumstances that the advice was not before the Tribunal) or that the Tribunal did not regard the opinions in the advice to be relevant, given that it made its own determination on matters traversed by the advice.[67]
[60] cf Keung v Abbott [2017] SASCFC 58, at [108], and [122]-[123]
[61] cf s.359A(1)(a), emphasis added
[62] CB 200
[63] CB 214-215
[64] Annexures C, D, and E: at CB 236-246
[65] see the transcript of the hearing
[66] CB 99-100
[67] compare BIE15 at [53]
It follows from those matters that the documents covered by the certificate were incapable of having any bearing on the decision of the Tribunal. It further follows that the non-disclosure of that material could not have deprived Ms Lee before the Tribunal of an opportunity to advance his or her case. This would be the case, whether or not the certificate was valid.[68]
[68] see Minister for Immigration v CQZ15 [2017] FCAFC 194 at [68]-[69]
Conclusion
Ms Lee has been unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 May 2018
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