MIAC v Kumar

[2008] HCATrans 341

[2008] HCATrans 341

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

AMIT KUMAR

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 SEPTEMBER 2008, AT 9.34 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MS L.A. CLEGG for the applicant.  (instructed by Australian Government Solicitor)

MR J.G. AZZI:   If your Honours please, I appear with MS K. BALENDRA for the first respondent.  (instructed by Davidson James & Associates)

FRENCH CJ:   Thank you.  The Court has received a submitting appearance filed on behalf of the second respondent who also consents to the making of an order restricting access to the Court file.  Yes, Mr Gageler.

MR GAGELER:   Your Honours will have seen at pages 68 and 69 of the application book some non‑publication orders that are not framed in the way that would constrain oral argument and I am confident that I can say in open court what I want to say in support of the application and, indeed, in support of any subsequent appeal without compromising the integrity of the underlying information that I seek to keep confidential and without disclosing the identity of the informant.  That is my position.  I am not sure it is the position of my learned friend.

FRENCH CJ:   Yes.  Mr Azzi, is that your position also?

MR AZZI:   No, your Honour, with regret, I will not be able to – if I have to refer to the specifics of the inequity that were founding the Full Federal Court decision in ‑ ‑ ‑

GUMMOW J:   You can do that without reading it out, you know.

MR AZZI:   I could possibly refer to ‑ ‑ ‑

GUMMOW J:   I think so.

MR AZZI:   Yes, your Honour.  I will endeavour not to undermine the integrity of the information, but your Honours will be aware that the first respondent’s position is we take on board the Full Federal Court’s determination on this issue and we proceed on that basis, albeit that there is a non‑publication order for the Federal Court that does not bind this Court.

FRENCH CJ:   It will be necessary, if counsel proceed in open court, that no reference be made to that information or any information which would disclose the identity of the informant.  Just bear with me for a moment, Mr Azzi.

Mr Azzi, the Court would be assisted if you could, bearing in mind that we have read all the papers and the submissions that have been filed,

shortly state why you say that special leave should not be granted in this case?

MR AZZI:   Thank you, your Honour.  Your Honours, I think the starting point is 359A of the Migration Act.  That is included in the folder of authorities.

GUMMOW J:   At tab 6.

MR AZZI:   Tab 6, thank you, your Honour.  Subsection (1), your Honour, is uncontroversial and it is in very similar form to section 424A where this Court in SAAP determined it was a mandatory requirement, that you cannot get around it unless in very specific instances ‑ ‑ ‑

GUMMOW J:   We are looking at 359A rather than 424 because of the nature of the Tribunal, is that right?

MR AZZI:   I am sorry, your Honour?

GUMMOW J:   This is not a refugee case, is it?

MR AZZI:   No, it is a migration review but it is in similar terms.

GUMMOW J:   Yes.

MR AZZI:   Section 359A(1):

the Tribunal must:

(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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 –

Your Honours, if I may pause there and say the critical issue here is the identity of the informant, whether that is information that is necessary – that would be adverse to the first respondent’s case.  The finding of Justice Besanko in this regards is at application book 55,paragraph 46, “Clearly, the information provided by” the informant ‑ ‑ ‑

FRENCH CJ:   You do not need to read it out to us.  We will read it for ourselves.  You can draw our attention to particular passages.

MR AZZI:   Yes.  Paragraph 46, your Honours.

FRENCH CJ:   Yes.

MR AZZI:   There his Honour says it was relevant information and then his Honour goes on to say that it is actually most material at paragraph 49.  The question then is, why is this most material.....the informant’s particular relationship to the first respondent?  It was highly adverse material.  Now, 359A(4)(c) again is a critical subsection and that is an out, it is an exemption for the Tribunal.  It says the disclosure section in subsection (1) “does not apply to information . . . that is non‑disclosable information”.  “Non‑disclosable information” is defined in section 5 in your Honour’s tab 2:

non‑disclosable information means information or matter:

(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would . . . 

(c)whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence –

Those words would found an action – his Honour Justice ‑ ‑ ‑

FRENCH CJ:   The question we are concerned about here is whether this case merits a grant of special leave rather than burrowing into the merits of it.  There is a question, is there not, about the application and construction of that term “non‑disclosable information” in these circumstances?

MR AZZI:   Your Honour, that is right, and Justice Besanko looked at that and said there is nothing that could found an action for breach because the circumstances in which the information was received discloses an iniquity and/or unclean hands and therefore the basis, the grounding for the confidentiality is not there, therefore we are back to 359A(1), it is not non‑disclosable information and the learned federal magistrate erred by proceeding on the basis that it was non‑disclosable information.  So, if there is no confidence in the information ‑ ‑ ‑

GUMMOW J:   What do you say about paragraph 19 of the Solicitor‑General’s submissions at page 80?  It may be right or it may be wrong, but there seems to be a point, that is what we are trying to get to, I think, on the leave application.

MR AZZI:   The point is there are completing interests – and Justice Finn said this is not the case to ventilate it – between the public interest for disclosure and the community’s interests in exposing fraudulent bogus visa applications and the ‑ ‑ ‑

GUMMOW J:   There is a drafting problem, that is one way of putting it, I suppose, with the definition of “non‑disclosable information” and that it injects into public law what is seen generally as private law notions and the fit may not be perfect and there is some adjustment needed in some way, perhaps.

MR AZZI:   But, your Honours, in this particular instance, the use of the information is highly critical from a procedural fairness point of view and it becomes a question of priorities prevailing, whose interests shall prevail.

FRENCH CJ:   That is the kind of argument you would run perhaps going to statutory interpretation of an application on an appeal.  The question is, why does not this raise an important issue of principle?

MR AZZI:   Because, your Honours, the fact is that circumstances of disclosure do not warrant any further consideration by any court because three judges in the Full Federal Court felt that it lacks confidentiality and so where we are talking about a piece of information that is critical to ‑ ‑ ‑

FRENCH CJ:   That was on the basis to do with the definition of “non‑disclosable information” and whether for reasons of equitable principle the information in question lacked the necessary quality of confidentiality.

MR AZZI:   Yes, but these are the restraining parameters.

FRENCH CJ:   The point I am just making is that this rather indicates how the judgment throws up issues of principle about the application of the term “non‑disclosable information” rather than just being a common garden variety application of it where you can argue the toss about whether this was or was not given in confidence and so forth.

MR AZZI:   Your Honour, the principle there we say has already been addressed by his Honour Justice Gummow in the Corrs Pavey Case which is in the list of authorities. There it was a breach of section 45 of the Freedom of Information Act and word “breach” rather without “the cause of action” qualifying that term ‑ ‑ ‑

GUMMOW J:   I do not think anything said there governs this section, necessarily.  I do not think anything that was said in that case necessarily governs the construction of this section we are looking at today.

MR AZZI:   No, it reinforces it, your Honour, in this sense, that you need an action for breach of confidence.  Where is the confidence now?  Where is the action lining up here – I am sorry, founding basis for the action is iniquity.  There is no contractual right.  There is no employment and implied terms granted by the department officers that they will guarantee confidentiality, so you still need the basis for a confidentiality suit iniquity giving rise to an injunction.  So, once we are in that jurisdiction, then we need to know what are the elements for that and one of them is clean hands and the other one is.....iniquity.

CRENNAN J:   One problem, though, is in this public interest context.  The question of principle is whether there is a requirement that a third party have a real and direct interest in redressing a crime or a wrong or something of that order.

MR AZZI:   Your Honour, that was a concern and his Honour Justice Gummow in Corrs Pavey required that – that was one of the elements.  In that regard, Justice Besanko said it is not critical to the whole process.  With respect to his Honour Justice Gummow, the English authorities do not require redressing.  They talk about a proper interest, and even the facts of Corrs Pavey confirm that a person with a proper interest does not always have to be, in redressing the crime – is not only the federal police or the Director of Public Prosecutions.

CRENNAN J:   But why does that not raise a point of principle in the context of public law?

MR AZZI:   Because, your Honour, it has already been dealt – we have a proper interest.  We are the applicant.  We are most directly involved in this.  We have been implicated in some elaborate fraud that we need to know about and who is putting this to us, whether it is – and, as the Tribunal said, this is highly critical, credible information and why was it credible?  Well, we needed to know why it was credible.  To answer that ‑ ‑ ‑

FRENCH CJ:   We are getting again into the merits of it as distinct from the characterisation of it as a case fit for special leave or not.

MR AZZI:   Your Honours, it does not raise any more principles beyond what is already established.  It is an area of the law which has been evolving in England more so than here, albeit that his Honour Justice Gummow summarised the law, and Justice Sheppard in Allied Mills 55 FLR which is not in the authorities again.  It is a lengthy decision.  The critical pages are pages 1 ‑ ‑ ‑

FRENCH CJ:   Which case is this?

MR AZZI:   Allied Mills v Trade Practices Commission.  It is not in there, your Honours.  I will just give it ‑ ‑ ‑

GUMMOW J:   It is a long while ago, that case.

MR AZZI:   That was before your decision in Corrs Pavey, your Honour, that is right, but it did summarise over 12 pages the relevant authorities in England.  Your Honour, Justice Finn said this is not the case for it, to test the principle of public policy versus private interests and whether there is iniquity defence or not.  His Honour, I think, if I may add, was thinking it is clearly non‑confidential information that we are dealing with here.  Perhaps another time there will be a case raising confidential information which then requires a competing of interests and weighing and balancing of public versus private rights.  This is not it, your Honours.

FRENCH CJ:   Thank you, Mr Azzi.

The Court is of the view that this is a case in which special leave for appeal should be granted.

Mr Gageler, I note that the Minister is prepared to submit to a condition of the grant of special leave to appeal that the Minister pay Mr Kumar’s costs of the appeal, regardless of the outcome.

MR GAGELER:   Yes, your Honour.

FRENCH CJ:   There is an extra condition “at Commonwealth rates”.  Why should we impose that limitation?

MR GAGELER:   It is a level playing field point.

FRENCH CJ:   I think we might dispense with that particular limitation, but otherwise impose the condition of the grant of special leave with the Minister to pay the costs of the appeal incurred by Mr Kumar, regardless. 

I noticed, also, that there is a consent order proposed in the event of the grant of special leave by the applicant and the first respondent that until further order access to the Court file is restricted to legal representatives of the applicant and first respondent and officers of the High Court and the Court will make that order, by consent.

MR GAGELER:   Yes.  Your Honour, it may be necessary to ask for another order to deal with the reasons for judgment and some other papers referred to in the Federal Court order at page 68.

FRENCH CJ:   Yes.  I thought the consent order that was being prepared was supposed to cover all ‑ ‑ ‑

MR GAGELER:   That will certainly cover things that are on this Court’s file, but it would not prevent publication of the judgment.  What I have in mind, your Honour, is a fairly narrowly tailored order that my learned friend has seen.

FRENCH CJ:   Yes, all right.

MR GAGELER:   I am sorry, I only have two copies of that.  I mean, I have three, but I need one to look at myself.  So the order at 68 covers the reasons for judgment of the Federal Court, the transcript of proceedings before that court ‑ ‑ ‑

GUMMOW J:   Is there an electronic citation of the Federal Court?

MR GAGELER:   I beg your pardon, your Honour?

GUMMOW J:   There is an electronic citation here of the Full Court decision.

MR GAGELER:   Yes, but it has not been published electronically.

GUMMOW J:   I see.

MR GAGELER:   It is automatically generated, I think.

FRENCH CJ:   So this is in addition to the proposed consent order?

MR GAGELER:   Yes, your Honour.

FRENCH CJ:   Yes, all right.  Mr Azzi, do you have any difficulty with that?

MR AZZI:   No, your Honour.

FRENCH CJ:   We will make an order as well that until further order and subject to Order 2 the following document shall not be published, the case summary and then the paragraphs referred to in paragraph 1(a) of the minute, (b) of the minute in relation to the first respondent’s summary of argument, and (c) confidential exhibit SH1.  All that is subject to the qualification that Order 1 does not apply to (a) the applicant or the legal representatives of the applicant and first respondent, and (b) officers of the Federal Court and the High Court.

Yes, thank you, Mr Azzi.

AT 9.53 AM THE MATTER WAS CONCLUDED