PARVIN v Minister for Immigration
[2016] FCCA 2109
•16 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARVIN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2109 |
| Catchwords: MIGRATION – Whether the subpoena should be set aside – public interest immunity – protection of informants – public interest immunity upheld – subpoena set aside. |
| Legislation: Evidence Act1995 (Cth), s.130. |
| Cases cited: Kamasaee v Commonwealth [2016] VSC 438 Young v Quin (1985) 4 FCR 483 |
| Applicant: | NASREEN PARVIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2994 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 16 August 2016 |
| Date of Last Submission: | 16 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The affidavit of Michelle Stone filed on 30 November 2015 is to be placed in a sealed envelope not to be opened without an order of a Judge of this Court.
The subpoena is set aside under r.15A.09 of the Federal Circuit Court Rules 2001.
The question of costs is reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2994 of 2014
| NASREEN PARVIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to set aside a subpoena under r.15A.09 of the Federal Circuit Court Rules 2001. The subpoena was issued to the Administrative Appeals Tribunal and required production relevantly of the following:
All records of information, including information in writing, and electronic forms, referred to by the second respondent in its letter addressed to the applicant and her daughter, and dated 6 March 2014, and said in that letter to be information received by the Department of Immigration and Citizenship from a number of different sources between October 2009 and April 2011 to the affect that;
(a) the applicant and her sponsor had not lived together in a spousal relationship at any time and;
(b) that the marriage was for the sole purpose of the applicant obtaining permanent residence in Australia.
(error in original)
An affidavit was filed by the respondent identifying a claim for public interest immunity in respect of the whole of the documents. That claim was made by a senior officer holding the position of assistant secretary, Border Intelligence Fusion Centre.
That senior officer identified, having considered the content of the subpoena and having inspected the documents, a well-known category in respect of the maintenance of public interest immunity, that is the protection of informants. Objection was taken to part of the subpoena in relation to the opinions expressed in respect of the impact of the documents potentially on the informants, which is the very type of evidence that the Court expects to be adduced if a claim for public interest immunity is to be advanced. Objection was also taken to the inspection of the records.
Again, the inspection of the records by the person advancing the claim for public interest immunity is a matter that would ordinarily be expected. There are cases where it will be appropriate for the Court to inspect material. This is not one of those cases. The Court has taken into account s.130 of the Evidence Act1995 (Cth). The Court is not persuaded that the information identified the subject of the subpoena is of importance in relation to the proceedings in the current case. The subject matter of the documents was information provided to the Department that the applicant was not in a genuine spousal relationship.
The substance of that allegation was clearly communicated to the applicant and the applicant had an opportunity to deal with that allegation. It was put by counsel for the applicant that counsel’s undertaking to confine the use of the material was a topic upon which the deponent should be able to be cross-examined. That is a factor which the Court is able to weigh in its consideration as to whether or not to uphold the claim for public interest immunity. It is not a ground upon which cross-examination should be allowed.
It was also suggested that cross-examination should be allowed to ascertain the circumstances in which the issue of protection was raised with the informants. That was not an issue upon which cross-examination was allowed by this Court. It is apparent from the evidence adduced that the preservation of the confidentiality of the informants was critical to the provision of the information to the Department. It was suggested that cross-examination should be allowed in relation to the topic of breach of confidence referred to by the deponent.
It is apparent from the deponent’s affidavit that assurances were given in relation to confidentiality being maintained. Counsel wanted to cross-examine on the elements relating to the cause of action for breach of confidence and whether comprehended by the deponent. Again, the absence of express reference to the elements is a matter that can be the subject of submissions in relation to the weighing exercise and is not a proper matter on which this Court should allow cross-examination. It was also put that the deponent should be cross-examined in relation to the issue of jeopardy. It was submitted that the applicant was an elderly lady unlikely to give rise to any form of danger to the informants.
The Court does not accept that any such proposition was required to be explored in cross-examination. The topic of jeopardy is a matter that can be adequately advanced by submissions as to the weighing exercise the Court is required to engage in. It is a most important principle that cross-examination of a deponent in respect of a claim for public interest immunity is not to be lightly granted. There must be exceptional circumstances that warrant permitting cross-examination.
The affidavit in the present case does not identify any feature or a history of inconsistencies of a kind which could give rise to such exceptional circumstances. The desire to cross-examine on the very subject matter of jeopardy and the other topics to which reference was made are all issues that can adequately be advanced by submissions in the course of the weighing exercise. It is not appropriate to permit cross-examination on issues that can be adequately identified and articulated in a weighing exercise to be undertaken by the Court.
The principles relating to the exceptional circumstances in which leave is required to permit cross-examination were recently summarised in Kamasaee v Commonwealth [2016] VSC 438 at paras.23-26. They reflect, in substance, a restatement of the same principles that had been articulated by Bowen CJ in Young v Quin (1985) 4 FCR 483 at 485 Further, as was said by the learned Sheppard J in that decision, who was also a member of the Full Court, ordinarily if there was a concern by the Court in relation to the claim for public interest immunity, the more appropriate course than cross-examination would be to inspect the documents.
The decision in Young v Quin was also cited with approval by the Full Court of the Federal Court in Woodroffe v National Crime Authority (1999) 168 ALR 585 at para.13.
The Court is not satisfied in the present case that there is any need to inspect the documents. The Court is satisfied that the affidavit properly and sufficiently identifies the grounds for the claim of public interest immunity.
In respect of the weighing exercise, the Court is satisfied that the nature of the cause of action in the present case being one for judicial review in terms of relief under s.75(v) of the Constitution, together with the nature of the information and the limited significance of the documents sought to be obtained, and the fact that the applicant has already had the benefit of being informed of the substantive effect of the information, weigh against the Court permitting inspection of the documents that fall within a well-recognised category of information being the protection of informants.
The public interest in protecting informants outweighs the factors that have been identified by the applicant in support of access to the information. I am satisfied that the claim for public interest has been properly made. I uphold the claim for public interest immunity. I am satisfied that the appropriate order in the present case is to set aside the subpoena.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 18 October 2016
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