Minister for Immigration and Border Protection v Singh

Case [2016] FCAFC 183

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Appeal from: Singh v Minister for Immigration & Anor [2016] FCCA 2464
File number: VID 1202 of 2016
Judges: KENNY, PERRAM AND MORTIMER JJ
Date of judgment: 19 December 2016
Catchwords: MIGRATION – procedural fairness – certificate issued under s 375A of the Migration Act 1958 (Cth) – whether Tribunal required to disclose existence of certificate
Legislation:

Migration Act 1958 (Cth) ss 5, 51A, 357A, 359A, 375A, 360, 422B, 425 and 438

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)
Cases cited:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

Arora v Minister for Immigration and Border Protection (2016) 238 FCR 153

Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20

Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686

Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Adams and the Tax Agents’ Board (1976) 7 ATR 87

Russell v Duke of Norfolk [1949] 1 All E.R. 109

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Date of hearing: 17 November 2016
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 68
Counsel for the Appellant: Mr G R Kennett SC with Mr P Knowles
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the First Respondent: Mr C Horan QC with Mr A Aleksov
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

VID 1202 of 2016
BETWEEN:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant
AND:

AVTAR SINGH

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

KENNY, PERRAM AND MORTIMER JJ

DATE OF ORDER:

19 DECEMBER 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

1.      Introduction

  1. The Migration and Refugee Division of the Administrative Appeals Tribunal (‘the Tribunal’) has the function, inter alia, of determining applications for review of departmental decisions to refuse to grant most classes of visa.  Mr Singh’s application for a skilled visa was rejected by a delegate of the Minister within the Department, and he sought a review of that decision in the Tribunal.  While the review was pending, another delegate of the Minister issued a certificate the effect of which was to place limits on what the…

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Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
Case
[2016] FCAFC 183
Decision Date

CaseChat Overview and Summary

The case of Minister for Immigration and Border Protection v Singh involves an appeal by the Minister against orders made by the Federal Circuit Court concerning the disclosure of information to an applicant, Mr Singh, in the context of a migration review. The primary issue at hand was whether the Migration Review Tribunal was required to disclose the existence of a certificate issued under section 375A of the Migration Act 1958 (Cth) to Mr Singh, and if so, to what extent. The Federal Circuit Court had ruled in favour of Mr Singh, finding that the Tribunal should have disclosed the existence of the certificate, and the Minister appealed this decision to the Federal Court.

The legal issues before the Court included the interpretation and interplay of sections 375A and 359A of the Migration Act. Section 375A allows the Minister to issue a certificate to the Tribunal, stipulating that certain documents or information should not be disclosed to any person other than a member of the Tribunal. Conversely, section 359A requires the Tribunal to provide an applicant with particulars of any information that might form part of the reasons for affirming a decision under review, including information that is subject to a section 375A certificate. The Court needed to resolve the potential conflict between these two sections and determine the obligations of the Tribunal in this context.

The Court found that the Tribunal was indeed required to disclose the existence of the certificate to Mr Singh. The reasoning of the Court was that while section 375A imposes a restriction on the disclosure of specific information, it does not preclude the disclosure of the fact that such information exists. The Court held that the Tribunal's obligation under section 359A to provide particulars of relevant information could be fulfilled without breaching the confidentiality requirements of section 375A. Therefore, the Court upheld the Federal Circuit Court's decision, affirming that the Tribunal should have disclosed the existence of the certificate to Mr Singh.

The final orders of the Court were to dismiss the appeal and to direct that the appellant pay the respondent's costs of the appeal. The Court also noted that any confidential information intended to be presented to the Court in future cases should be provided in a sealed envelope to prevent premature disclosure.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Minister has now appealed to this Court from the orders of the Federal Circuit Court. Because it raises issues of some importance, the appeal has been heard by a bench comprising three judges of the Court. The principal issue on the appeal is whether the Tribunal was required to disclose the existence of the certificate to Mr Singh. For the reasons which follow, we are of the view that it was, and that the conclusions of the Federal Circuit Court in this regard were correct. The Minister’s appeal will, therefore, be dismissed with costs.2. Factual background Mr Singh is a citizen of India. He applied for a Skilled (Provisional) (Class VC) (Subclass 487) visa on 15 July 2009. The relevant trade in respect of which Mr Singh sought his visa was that of motor mechanic. One of the matters that Mr Singh was required to demonstrate to be eligible for this class of visa was that he had obtained a skills assessment from an authorised skills assessment body. Trades Recognition Australia (‘TRA’) is such a body. On 15 July 2009, he submitted to the Department a skills assessment provided by TRA. The skills assessment certified that he had been assessed as having the skills appropriate for a motor mechanic, and as having done the requisite amount of work experience. This assessment had been issued by TRA on the basis of a reference provided by a motor mechanic business called Alway Automotive. This reference certified that Mr Singh had done more than 900 hours of work experience with that business. On 30 August 2012, a delegate of the Minister concluded that the reference was a bogus document within the meaning of the former s 97 (and now s 5) of the Migration Act 1958 (Cth) (‘the Act’). Consequently, Mr Singh then failed to satisfy what is known as Public Interest Criterion 4020 (‘PIC4020’). Non-satisfaction of that requirement had the effect that he was not then eligible for the visa for which he had applied. The reasons why a bogus document has this effect were explained by the Full Court in Arora v Minister for Immigration and Border Protection (2016) 238 FCR 153 at 155 [9]-[12] and need not be repeated here. As a result of her opinion about PIC4020, the delegate refused Mr Singh’s application for the visa. On 18 September 2012, Mr Singh applied to the Tribunal for a review of this decision. This appeal concerns the steps which were then taken in the Tribunal. On 4 June 2014, a delegate of the Minister issued a certificate to the Tribunal. It was issued in reliance upon s 375A of the Act, which provides:375A Certain information only to be disclosed to Tribunal(1) This section applies to a document or information if the Minister:(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate(other than a reason set out in paragraph 375(a) or (b)); and(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:(a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It will follow from the above conclusions that the appeal should be dismissed. This makes it unnecessary to deal with Mr Singh’s notice of contention.10. Conclusions To the extent we have indicated, Davis should be overruled. The appeal should be dismissed with costs. There are two final remarks which should be made. First, the Minister initially sought to put before the Court the confidential information which was the subject of the certificate. For future cases, so that this material is not inadvertently seen by the Court prior to any debate as to whether it should be received, it should be provided manually in a sealed envelope with a clear statement on the front of it as to its contents. This will ensure that there is no premature disclosure of the material to the Court. Secondly, no argument was advanced to us that the certificate was invalid. No doubt given the effect of a s 375A certificate, it is likely that a reasonably intense level of scrutiny will be applied to it. However, the fleshing out of those principles must await a case in which it is raised.

Ratio Decidendi

Legal Principle Established

The certificate was addressed to the Tribunal, and was signed by a delegate of the Minister. It was in the following terms:CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION ONLY TO THE MIGRATION REVIEW TRIBUNAL UNDER s 375A OF THE MIGRATION ACT 1958I certify that, in accordance with s 375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in electronic files AFP Employer Statement AMARANTE Carmine - MRT.pdf, Amarante - Summary of Facts - MRT.pdf and Amarante - Summary of Taped Record of Interview - MRT.pdf would be contrary to the public interest because:(a)The electronic files AFP Employer Statement AMARANTE Carmine - MRT.pdf, Amarante - Summary of Facts - MRT.pdf and Amarante - Summary of Taped Record of Interview - MRT.pdf contain third party details not relevant to this particular Merits Review.As s 375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or third party information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.(Emphasis in original.) Section 375A(1)(a) contemplates that a certificate will specify a reason to justify the non-disclosure of the material. It will be seen that the reason put forward in the certificate was that the material in question related to ‘third party details’ which were said not to be relevant to the application before the Tribunal. The Tribunal is also bound to provide an applicant for review with particulars of information which might form part of a decision by it to affirm the decision under review. This obligation emerges from s 359A(1) of the Act. It provides:359A Information and invitation given in writing by Tribunal(1) Subject to subsections (2) and (3), the Tribunal must:(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and(c)invite the applicant to comment on or respond to it. There is a potential tension between s 359A and s 375A. If the Tribunal proposes to use a document or information which is subject to a s 375A certificate as part of its reasons for affirming a decision under review, s 359A appears to require the Tribunal to give an applicant particulars of that document or information which, at the same time, s 375A requires not to be disclosed. There are conflicting views about how this apparent tension might be resolved. In Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [21] and [28], Dowsett J considered that the prohibition in s 375A on the provision of a document or information certified under it outflanked any obligation on the Tribunal under s 359A to provide particulars of that document or information. But in Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20 at 31 [40], Wilcox J concluded that the provision of particulars could be done without necessarily disclosing the document or information certified under s 375A. We return to this tension later in these reasons.