Nusipepa v Minister for Immigration - [2020] FCCA 1088

FEDERAL CIRCUIT COURT OF AUSTRALIA

NUSIPEPA v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1088

Catchwords:
MIGRATION – Partner visa cancellation – whether certificates under s.376 of the Migration Act 1958 (Cth) invalid – materiality – whether failure by Administrative Appeals Tribunal to comply with s.360 of the Act – whether Tribunal erred in failing to identify what risk the Applicant’s presence in Australian posed to his wife and children.

Legislation:

Evidence Act 1995 (Cth), s.130

Migration Act 1958 (Cth), ss.116, 360, 376

Cases cited:

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
Coulibaly v Minister for Immigration & Anor [2018] FCCA 3110
He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant:

TOHITANGI NUSIPEPA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 304 of 2019

Judgment of:

Judge Barnes

Hearing date:

13 December 2019

Date of Last Submission:

19 February 2020

Delivered at:

Sydney

Delivered on:

8 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Chia (direct access)

Counsel for the Respondent:

Ms Francois

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 304 of 2019

TOHITANGI NUSIPEPA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 December 2018 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Partner (Provisional) (Class UF) (Subclass 309) visa. The review application was filed on 14 February 2019 which was 13 days outside the time provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act). At that time the Applicant was in detention. The First Respondent did not oppose an order extending the time for making the application under s.477(2) of the Act. I made such an order.
The Applicant, a national of Tonga, was granted a Partner (Provisional) visa on 10 September 2014 on the basis of his relationship with his wife.
On 11 May 2018 a delegate of the First Respondent sent the Applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1088
Decision Date: 8 May 2020

CaseChat Overview and Summary

This case concerned an application by Mr. Nusipepa for judicial review of a decision by the Minister for Immigration to cancel his partner visa. The dispute centred on the validity of two certificates issued under section 376 of the *Migration Act 1958* (Cth), which purported to restrict the disclosure of certain documents and information to the Administrative Appeals Tribunal (AAT). The AAT had considered these certificates in its review of the visa cancellation.

The legal issues before the court were whether the section 376 certificates were invalid, and if so, whether this invalidity constituted a material jurisdictional error. Specifically, the court had to determine if the preconditions for issuing a section 376 certificate under subsection (1) were met in relation to the documents and information in question. The applicant also contended that the AAT erred by failing to identify the specific risk Mr. Nusipepa's presence posed to his wife and children.

The court found that the reasons provided in both section 376 certificates were capable of grounding a claim for public interest immunity from disclosure under the *Evidence Act 1995* (Cth), and therefore satisfied the requirements of section 376(1)(a) of the *Migration Act*. The court noted that Mr. Nusipepa's wife had provided information to the Department in confidence, seeking anonymity and expressing fear for her and her children's safety. This established her as a confidential source, making the certificates valid in relation to the adverse information provided before the visa cancellation. The court was not satisfied that jurisdictional error had been established in relation to either notification.

The court ultimately dismissed the application, finding that the section 376 certificates were valid and that no material jurisdictional error had occurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As stated in SZMTA at [45]: … a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is … in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.(emphasis added) The Applicant contended that the s.376 notices were invalid such as to give rise to jurisdictional error because neither of the preconditions in s.376(1) was met in relation to some or all of the documents or information referred to therein and such breach was material. However, for the reasons that follow I am not satisfied that jurisdictional error has been established in relation to either notification. It is convenient to consider first the application of the certificates to the documents which consisted of emails sent by Mr Nusipepa’s wife to Visa Cancellations, a departmental officer and/or to Mr Dutton between 8 August 2018 and 13 September 2018 in folios 26-27, 29-30, 32-51 and 62-66 in the departmental file. In both certificates the Minister certified that disclosure of material in the identified folios in the departmental file would be contrary to the public interest for a reason specified in the certificate (as required under s.376(1)(a) of the Act). The first (revoked) certificate (set out at [63] above) referred to disclosure of the identity of the Applicant’s spouse who had given information to the Department in confidence in relation to her husband’s conduct. While inelegantly expressed, when that certificate is read in its entirety, the reason specified in that certificate was capable of grounding a claim for public interest immunity from disclosure (under s.130(4)(e) of the Evidence Act as disclosing the identity of a confidential source of information relating to the administration of the cancellation provisions in the Migration Act) within s.376(1)(a) of the Act. The second s.376 certificate (reproduced at [64] above) was clearer in this respect. It clearly gave a reason which was capable of “grounding a claim” (see SZMTA at [19]) of public interest immunity from disclosure under s.130 of the Evidence Act, including not only in relation to the then current “prosecution” of Mr Nusipepa (see s.130(4)(c)) but also information which disclosed the identity of a then confidential source of information provided to the Department (see s.130(4)(e) of the Evidence Act). At the outset of her correspondence with the Department Mr Nusipepa’s wife explained in her email of 27 February 2018 that she communicated with it under a pseudonym and email address that did not reveal her identity so that she could remain anonymous. She revealed her identity and that of her husband in her email to Mr Dutton of 19 March 2018. Furthermore, in the first of her emails the subject of the s.376 certificate (folio 26 in the departmental file) Mr Nusipepa’s wife withdrew her support for her husband, stated that she realised he was still a danger to her and the children and, critically, asked the Departmental officer to “[p]lease keep our correspondence anonymous (sic) if possible” (email of 8 August 2018, 3.24pm). This made it clear that she was a confidential source of the information she provided to the Department in her emails (see s.130(4)(e) of the Evidence Act and s.376(1)(a) of the Migration Act), at least in relation to adverse information about Mr Nusipepa provided before his visa was cancelled.

Ratio Decidendi

Legal Principle Established

The revoked 26 September 2018 s.376 certificate was as follows: Certificate and Notification regarding Administrative Appeals Tribunal’s discretion to disclose certain information under s376 of the Migration Act 1958Public Interest folios I notify the Administrative Appeals Tribunal that s376 applies to:the document(s)/information contained in file number [BCC2018/17464143], and certify that disclosure of this material would be contrary to the public interest because:(a) Folio(s) 1, 26, 27, 29 , 30, 31, 32, 33, 34, 35, 36-49, 50, 51, 62, 63-66These documents contain information given by the review applicant’s spouse who is the victim (domestic violence perpetrated by the review applicant) whose identity cannot be disclosed and the disclosure of such information could have adverse consequences for the review applicant’s spouse and children. Documents of TRIM reference number(s) [reference numbers provided for the above folios] of file number [BCC2018/17464143], because it was given to the Minister, or to an officer of the Department, in confidence, and section 375A does not apply. The 5 October 2018 s.376 certificate had the same headings, but was otherwise as follows:I notify the Administrative Appeals Tribunal that s376 applies to:the document(s)/information contained in file number [BCC2018/1746413], and certify that disclosure of this material would be contrary to the public interest because:(a) Folio(s) 1, 26, 27, 29-51 and 62-66:· prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance· disclose or enable a person to ascertain the existence or identity of a confidential source or information· endanger the life or physical safety of a person, and· information provided ‘in confidence’ and where the provider of the information has not consented to the disclosure of the information to the review applicant. Documents of TRIM reference number(s) [reference numbers provided for 15 documents] of file number [BCC201 8/1746413], because it was given to the Minister, or to an officer of the Department, in confidence, and section 375A does not apply.*Please note all of the reasons listed above applies to all folios/TRIM documents listed in this certificate* While differently described, the same folios in the departmental file were the subject of both certificates. Copies of the folios which were not included in the Courtbook were annexed to the Evans affidavit. The Minister made no claim for privilege over any of those documents and did not seek any order for confidentiality. It was pointed out that on 7 December 2018 (after the issue of the second s.376 certificate) the sponsor, Mr Nusipepa’s wife, who was also his representative and authorised recipient at that time, had independently emailed copies of the majority of the documents the subject of the certificates to the Tribunal. Section 376 of the Act is as follows:Tribunal's discretion in relation to disclosure of certain information etc.(1) This section applies to a document or information if:(a) the Minister:(i) has certified, in writing, that the disclosure 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)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and(ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.