SZROZ v Minister for Immigration
[2018] FCCA 433
•1 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZROZ v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 433 |
| Catchwords: PRACTICE & PROCEDURE – Question as to the admissibility of documents covered by s.438 certificate – applicant opposes the tender of the documents – whether there was premature disclosure of the documents – whether there was any impropriety – when the debate about the admissibility of the documents begins – documents are admissible as evidence. |
| Legislation: Migration Act 1958 (Cth), ss.375A, 438, 476 Evidence Act 1995 (Cth), ss.55, 56, 132, 138 |
| Cases cited: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 |
| Applicant: | SZROZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 750 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 December 2017 |
| Date of Last Submission: | 21 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr V A Kline |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The documents referred to as exhibit “B” in the affidavit of Chloe Ann Hillary made on 25 July 2017 are admitted into evidence in these proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 750 of 2016
| SZROZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The immediate issue in these proceedings concerns the admissibility into evidence of certain documents relevant to a certificate issued by an officer in the Minister’s department pursuant to s.438(1)(a) of the Migration Act 1958 (Cth) (“the Act”) dated 13 July 2015.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The Minister sought to read the affidavit of Ms Chloe Ann Hillary, solicitor, made on 25 July 2017. There was no objection to the affidavit. However, the applicant’s counsel ultimately objected to the tender of the documents referred to in that affidavit as exhibit “B”.
The background to this matter is as follows.
On 31 March 2016, the applicant made an application to this Court seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 February 2016, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant. The applicant was not legally represented at that time.
The applicant first appeared before a Registrar of the Court on 19 May 2016, and various orders were made by consent, including that the applicant be given the opportunity to file any amended application and further evidence by way of affidavit by 30 June 2016. The applicant filed no documents in this regard.
The applicant again appeared before a Registrar of the Court 6 October 2016, and orders were made for the progress of the matter, including for the filing of written submissions by the parties, and that the matter be set down for final hearing on 26 March 2018. Subsequently, the Court was informed by the Minister’s solicitor that the applicant had been taken to immigration detention. For this reason, the final hearing of the matter was moved forward to 13 October 2017.
On 6 October 2017, the parties sought an adjournment of the final hearing by consent. The applicant had obtained the representation of counsel (acting on a direct access and pro bono basis). Leave was also granted for the filing of an amended application. This was done on 18 October 2017. That amended application is in the following terms:
“1. The Second Respondent failed to disclose to the Applicant the existence of a certificate issued to it under s 438(1)(a) (the Certificate) of the Migration Act 1958 (Cth) (the Act), and so denied the Applicant procedural fairness, and thus fell into jurisdictional error.
2. The Second Respondent proceeded to act on the Certificate, which was invalid, and thus fell into jurisdictional error.
Particulars
The Certificate was invalid because it was issued on the basis that the documents referred to in it ‘contain information relating to an internal working document and business affairs’. Such is not a necessary or sufficient basis for establishing a claim by the Crown in right of the Commonwealth in judicial proceedings that the matters contained in the documents should not be disclosed, within the meaning of s 438(1)(a) of the Act.
3. The Second Respondent’s decision to deny an adjournment of the sort requested by the Applicant, lacked an evident and intelligible justification, and was a decision disproportionate to that which was required by the Act. The Second Respondent thus behaved in a manner that was legally unreasonable and so fell into jurisdictional error.
Particulars
The original Tribunal hearing date of 2 November 2015, had to be adjourned due to illness of the Applicant, as supported by a doctor’s certificate stating that on that day the Applicant was unfit for normal duties as suffering from vertigo. The Applicant sought a new hearing date after his next doctor’s appointment on 9 November 2015. However, the Second Respondent rescheduled the hearing for 6 November 2015, that is four days later and before the Applicant’s next doctor’s appointment, on the basis that the doctor’s certificate was issued only for the day of the original hearing.”
On 31 October 2017 orders were made, by consent, giving the parties the opportunity to file written submissions and listing the matter for final hearing on 7 December 2017. The applicant filed written submissions on 23 November 2017 (“the applicant’s first written submissions”). The Minister filed written submissions on 30 November 2017 (“the Minister’s first written submissions”).
Further written submissions were also filed by both parties after the hearing. The applicant filed written submissions on 14 December 2017 (“the applicant’s further written submissions”). The Minister filed written submissions on 21 December 2017 (“the Minister’s further written submissions”). The parties’ further written submissions concerned an issue raised at the hearing by the applicant (see [40] below). The final hearing was adjourned on 7 December 2017 to allow consideration of this issue.
The current judgment is concerned with the admissibility of the documents that the Minister seeks to tender (exhibit “B” to the affidavit of Ms Hillary), as those documents are relevant to grounds one and two of the amended application.
There was no dispute between the parties that an officer of the Minister’s department issued a certificate pursuant to s.438(1)(a) of the Act dated 13 July 2015 (“the s.438 certificate”), and that that s.438 certificate was placed on the applicant’s file held by the Minister’s department (see [2] and annexure “A” to the affidavit of Ms Hillary). The s.438 certificate referred to two folios on the Minister’s department’s file (see [3] of the affidavit of Ms Hillary).
In his first written submissions (at [2]), the applicant submits that the Tribunal received the s.438 certificate from the Minister’s delegate. He appears to rely on [2] of the affidavit of Ms Hillary for that submission.
Paragraph [2] of Ms Hillary’s affidavit does not support that proposition. However, given what is set out at [3] (at CB 126) of the Tribunal’s decision record, the relevant departmental file was before the Tribunal, and it is therefore reasonable to say that the s.438 certificate and the documents covered by that certificate, were a part of that file (see below also at [18]).
In MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”) (per Beach J on appeal from this Court), the Federal Court considered the matter of a certificate issued under s.438(1)(a) of the Act (as in this case).
The s.438 certificate in MZAFZ stated, amongst other things, that (MZAFZ at [29]):
“…the disclosure of this information [to which the certificate referred and which was on the departmental file] ‘would be contrary to the public interest because it contains internal working documents’.”
The s.438 certificate in the current case contains the same wording. I note that there was no dispute from the Minister that the s.438 certificate was not valid, in the sense explained by Justice Beach in MZAFZ (see MZAFZ at [35] – [38]).
In MZAFZ, the Court held that the statement by the Tribunal in its decision record, that it had the departmental file before it, was sufficient to establish that the Tribunal had regard to that file which included the s.438 certificate (MZAFZ at [48]).
On this basis, the Court held that the “the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents” (MZAFZ at [40]).
The applicant submits that the Court held that the applicant in that case had been denied procedural fairness “because the Tribunal had not disclosed the existence of the [s.438] certificate to him, had not given him the opportunity to make submissions on the validity of the [s.438] certificate”, and had not told him whether the Tribunal was going to take into account the information which was the subject of the s.438 certificate. Further, the Tribunal had not provided the applicant with an opportunity to address the exercise of its discretion under s.438(3)(b) of the Act, to disclose to him the contents of the documents covered by the s.438 certificate (see [5] of the applicant’s first written submissions).
In Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”), the Full Federal Court also dealt with a “certificate”, albeit in relation to the analogous (for current purposes) s.375A of the Act (“the s.375A certificate”). The Court there held that the failure to disclose to the applicant the existence of the s.375A certificate was a denial of procedural fairness.
The applicant’s first written submissions also addressed the finding in MZAFZ that the s.438 certificate in that case was invalid on the basis that the reason given for the issuing of the s.438 certificate was inconsistent with the relevant statutory requirement (MZAFZ at [3] and [44] and see also [8] – [10] of the applicant’s first written submissions). Acting on the invalid s.438 certificate was held to constitute jurisdictional error in that case.
In the current case, the applicant’s written submissions argue that the circumstances are “on all fours” with both MZAFZ and Singh, and therefore the Court in this case should also find jurisdictional error ([7] of the applicant’s first written submissions).
Immediately relevant to the current issue is the applicant’s submission that in MZAFZ the Court stated (MZAFZ at [54] – [55] and see
[12] – [13] of the applicant’s first written submissions):
“[54] Now the Minister submitted that I should look at the documents covered by the certificate, with the suggestion floated that once I looked at them I would be satisfied that:
(a) the certificate had properly been issued;
(b) there was nothing advantageous to the applicant not disclosed; and
(c) there was nothing disadvantageous to the applicant not disclosed.
[55] I declined that invitation for a number of reasons. First, I am entitled to proceed on the basis that the documents covered by the certificate had relevance to the applicant’s visa application, whether favourable, unfavourable or neutral. If not, the s 438(1)(a) certificate would not have been necessary and the documents would not have been before the Tribunal. Second, it was the Tribunal’s task to review the documents, not mine. Third, even if I accepted points [54] (a) to (c), it does not address the points set out at [50] above in terms of what procedural fairness required that the Tribunal ought to have done, save for any operation of s.422B.”
The applicant’s submissions now are that the Court in MZAFZ took the view that the documents had relevance to the Tribunal’s consideration. It proceeded on that basis. The view taken was that it was the Tribunal’s task to review the documents, not that of the Court. Therefore the Court did not “look at” the documents.
In Singh, the Court also did not “look at” the material covered by the relevant certificate.
Therefore, in written submissions, the applicant urged this Court to follow MZAFZ, and not “look at” the documents. That is, that the Minister’s tender of exhibit “B” to the affidavit of Ms Hillary should not be accepted ([17] of the applicant’s first written submissions).
The applicant’s position was that various decisions of this Court, handed down after MZAFZ, and which adopted the same practice urged by the Minister now, failed to follow the “clearly articulated approach” taken in MZAFZ. Therefore this Court should not follow them ([17] of the applicant’s first written submissions).
The applicant’s written submissions also referred to AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (“AVO15”) (which post-dated both MZAFZ and Singh) as follows ([19] of the applicant’s first written submissions):
“Insofar as a similar approach to the above Federal Circuit Court decisions, may be said to have been taken by Barker J in the Federal Court in AVO15 v Minister for Immigration and Border Protection, it is submitted, with respect, that this Court should not take that decision into account. This is for the following reasons: (i) the appellant there was unrepresented, and so his Honour did not have the benefit of a proper contradictor; (ii) his Honour chose to look at the documents in contradistinction to what was done in MZAFZ and Singh (iii) with respect, his Honour ignored what was said by the Full Court that: ‘…the extent of the applicant’s participation in the review is circumscribed by the existence of the certificate which … denies access to relevant material. In that sense, the certificate has the immediate effect of diminishing an applicant’s entitlement to participate fully in the review process. That is sufficient interest to enliven an obligation of procedural fairness’.”
[Footnotes omitted.]
In short, the applicant’s position, as expressed in written submissions, was that this Court is required “not to look at” the documents. The applicant submitted that ([20] of the applicant’s first written submissions):
“… on the authority of MZAFZ and Singh, this Court is required not to look at the documents in question, and further that it is required to find that the Second Respondent fell into jurisdictional error by failing to disclose the existence of the Certificate, and in acting on it when it was invalid.”
It is clear that of MZAFZ, Singh and AVO15, AVO15 is the most recent. It too was a matter on appeal from this Court. I agree with the Minister that as such, it is relevantly binding on this Court.
Relevant to grounds one and two of the amended application, Justice Barker in AVO15 stated (at [91]):
“To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, especially at [57] (Gageler and Gordon JJ).”
For current purposes, I note that the Court at first instance in AVO15 v Minister for Immigration & Anor [2016] FCCA 2101 (“AVO15 FCCA”), did proceed on the basis urged by the Minister now. That is, the documents covered by the s.438 certificate were taken into evidence. The Court at first instance was upheld on appeal.
Following the filing of the applicant’s first written submissions, a number of Full Federal Court judgments relevant to the “certificate issue” were handed down on 29 November 2017 (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”), Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”) and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”)).
The Minister’s written submissions did address these cases, as did counsel for the applicant and the Minister at the hearing.
In any event, direction for current purposes is provided by those later Full Federal Court judgments (above at [34]). In essence, what I respectfully and relevantly understand from these judgments, is that each case involving a s.438 certificate is to be considered and determined on its own facts (BJN16 at [76], CQZ15 at [68] – [69] and BEG15 at [30]).
In BEG15 the Full Federal Court stated (at [30]) (and see also BEG15 at [32] – [33]):
“In Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, a decision published today, the Full Court, as presently constituted, reviewed MZAFZ and Singh and other related authorities. Having done so we rejected submissions that these authorities supported rigid and unqualified propositions of the kind advanced by BEG15 on this appeal. In particular we found nothing to support the view that it was always a jurisdictional error for the Tribunal to act upon an invalid s 438 certificate and that, in doing so, the Tribunal would invariably deny procedural fairness to an applicant. We concluded (at [62]) that:
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
We also said (at [69]) that:
We do not consider that the decisions in MZAFZ and Singh compel the conclusion that material contained in documents covered by s 438 certificates can never be relevant in the course of judicial review proceedings in which the Tribunal has made a decision without disclosing to an applicant that the Secretary has issued a certificate and that the documents identified in the certificate had been provided to it.
We accepted that documents covered by s 438 certificates might be relevant in determining whether or not an applicant had received procedural fairness before the Tribunal and as to the exercise of the Court’s discretion to grant relief. This was so whether or not the certificate was invalid.”
In the current case, the Minister seeks to tender the documents so that the Court may examine them, and consider whether the documents could have been relevant to the Tribunal decision, or how they affected, or impacted on, the applicant’s ability to argue his case before the Tribunal. In short, the Court should allow the tender so it can consider whether the applicant was denied procedural fairness, and to properly inform the exercise of the Court’s discretion to grant the relief sought (and see CQZ15 at [62] – [69]).
Therefore, in the current case, the Minister submits that it is appropriate to allow the tender of the documents for that purpose.
At the hearing before the Court, on 7 December 2017, the applicant’s counsel raised another argument against the tender. The submission was that the Court should exercise its discretion pursuant to s.138 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and refuse to admit the documents into evidence.
The applicant did not explain why this additional argument was not raised at an earlier time in these proceedings. In the circumstances, and having regard to what is set out above, a reasonable inference may be drawn that the argument was borne out of necessity, given the later Full Federal Court judgments, which post-dated the earlier making of orders for the filing of written submissions in this matter (31 October 2017 and see [9] above).
In any event, s.138 of the Evidence Act deals with improperly or illegally obtained evidence. That section is in the following terms:
“Section 138
Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.”
The applicant’s counsel directed attention to the Minister’s first written submissions drafted by counsel (at [13]) (I note that this is not the counsel who appeared for the Minister at the hearing). Paragraph 13 of the Minister’s first written submissions is as follows:
“The reasoning of Barker J in AVO15 applies in the present case. The documents covered by the non-disclosure certificate are administrative checklists. Those documents were not relevant to the Tribunal’s decision about the applicant’s protection visa application and the Tribunal could not have acted on them in making its findings about the applicant’s claims for protection: see BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [65].”
In support of his argument, the applicant referred the Court to LGM v CAM [2011] FamCAFC 195; (2011) 46 FamLR 118 (“LGM”)
(at [163] - [176]). The Full Family Court held that an omission by a trial Judge to warn a witness that she might incriminate herself in breach of an obligation under s.132 of the Evidence Act was an “impropriety” within the meaning of s.138 of the Evidence Act.
In particular, the applicant referred to the following paragraphs from LGM:
“[167] In Bodnar v Townsend [2003] TASSC 148, Blow J considered a case in which a credit union officer had, at the request of the prosecutor brought to court the respondent’s credit union account details. No subpoena or other formal process for bringing the documents to court had been undertaken. His Honour found that the credit union had a contractual obligation to the respondent not to produce the documents (without consent or compulsion through subpoena). His Honour held that it was improper (in the meaning of s 138) for the prosecutor to attempt to tender the documents in circumstances where it amounted to having the officer do an act in breach of the credit union’s contract with the accused.
[168] The High Court considered s 138 in Parker v Comptroller-General of Customs in the context of an appeal from the NSW Court of Appeal in which there was consideration of the admissibility of evidence obtain in excess of the ambit of a warrant to produce documents issued by the respondent.
…
[170] French CJ said at [29] that:
The meanings to be accorded to the terms ‘improperly’, ‘impropriety’ and ‘contravention’ in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of ‘improper’ include ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’. ‘Contravention’ refers to ‘[t]he action of contravening or going counter to; violation, infringement, transgression’.
Without essaying an exhaustive definition, the core meaning of ‘contravention’ involves... doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as ‘impropriety’ although that word does cover a wider range of conduct than the word ‘contravention’.
[171] As can be seen, the scope of the word ‘impropriety’ is wide and we are of the view that his Honour O’Ryan J’s failure to alert the wife to her right against self incrimination and the subsequent limiting of the ambit of the s 128 certificate falls within the definitions of ‘impropriety’ to which the Chief Justice referred at [29] in Parker. We hasten to point out that nothing in those definitions nor in our findings connote any malice or wilful failure. In this case particularly, in the context of what was obviously a long, complex and attenuated trial, such an oversight can be readily understood.”
The applicant also referred to Singh at [67] as follows:
“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.”
The applicant’s submission was that in CQZ15, BJN16 (and BEG15), the Full Federal Courts “endorsed” the process described in Singh. The submissions did not say where this “endorsement” was expressed (but see CQZ15 at [41] and BJN16 at [18]).
The applicant’s argument was that Full Federal Court authority (relevantly Singh, CQZ15 and BJN16) set out a “process” to ensure that the Court does not see the documents the subject of the s.438 certificate until the parties have had the opportunity to address the Court on the question of admissibility.
That “process” is that the documents are put in a “sealed envelope” and filed with a “covering” affidavit. That occurred in this case with the affidavit of Ms Hillary made on 25 July 2017.
However, the applicant argued that the Minister’s counsel’s “disclosure” at [13] of the Minister’s first written submissions was “premature”, and contrary to Full Federal Court authority (see above at [47]). In short, the Minister’s counsel’s action was “abnormal, irregular … erroneous or wrong” (with reference to Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494 at [29]), and therefore constituted an “impropriety” for the purposes of s.138 of the Evidence Act.
In this light, the applicant argued that given there was an “impropriety”, this meant that the Minister bore the onus of persuading the Court that the documents should, nonetheless, be admitted into evidence.
The applicant urged the Court to exercise its discretion to not admit the documents into evidence because the right to be afforded procedural fairness was, in law, of equal concern to the right against
self-incrimination (see [44] above).
I do not agree with the applicant’s general contention.
First, I do not accept that the Minister’s counsel acted improperly in drafting [13] of the Minister’s first written submissions (noting again that a different counsel appeared before the Court). Before the Court, the applicant’s counsel stressed that there was no suggestion that the Minister’s counsel had acted in bad faith in writing what was set out at [13] (of the Minister’s first written submissions). The argument was said to be focused on the assertion that counsel’s action was relevantly “abnormal, irregular erroneous or wrong”, and therefore gave rise to the “impropriety” for the purposes of s.138 of the Evidence Act.
Second, and nonetheless, the applicant’s counsel described the Minister’s counsel’s action as being “de facto extremely serious”, while at the same time submitting that he was not “in the least way critical” of the Minister’s counsel who had drafted the Minister’s first written submissions.
It is difficult to see how the applicant’s submission could not be understood as being critical of the Minister’s counsel. What was meant by “de facto extremely serious”, was, it must be said, left without satisfactory explanation before the Court.
Third, it may be that what was meant was that this was not some “sharp practice” (that is, dishonest or barely honest dealing). In any event, as was said in LGM (at [166]):
“The conduct amounting to impropriety need not be attended by bad faith or an abuse of power (See Cornwell at [20]; Director of Public Prosecutions (NSW) v AM [2006] NSWSC 348; (2006) 161 A Crim R 219 at [37]).”
In short, the essence of the allegation is that by drafting [13] of the Minister’s first written submissions, the Minister’s counsel did not follow a procedure “mandated” by the Full Federal Court.
Fourth, this directs attention to what was actually said by the Full Federal Court in Singh. I respectfully understood the Full Federal Court to say that for “future cases”, the Minister should provide the material to the Court “manually” in a “sealed envelope”. What the Full Federal Court sought to avoid through this process was the “premature disclosure of the material to the Court” (Singh at [67]).
The Minister has complied with this process. The evidence of Ms Hillary is that in the current case, she placed certain folios from the Minister’s department’s file ([3] of the affidavit of Ms Hillary):
“…in a sealed envelope marked Exhibit B in accordance with the stated requirement of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67].”
The issue is whether the Minister’s counsel, by [13] of the Minister’s first written submissions, has made any “premature disclosure” to the Court. This phrase is not defined by the Full Federal Court in Singh. Its meaning therefore, in my respectful view, must be derived from the ordinary meaning given to those words, and in particular, the context in which they appear.
In this light, I do not agree with the applicant that it means no reference whatsoever to the material in the sealed envelope. As the Full Federal Court made clear, the provision of the material “manually in a sealed envelope”, should be accompanied by “a clear statement on the front of [the envelope] as to its contents” (Singh at [67]).
As mentioned above, the applicant did not object to the reading of the affidavit of Ms Hillary (only to the tender of exhibit “B”). Ms Hillary’s affidavit, which referred to the envelope, also provided a statement as to the contents of the envelope. It is to be noted the Full Federal Court’s requirement was a “clear statement”. The statement provided by Ms Hillary (and not objected to by the applicant, nor the subject of any critical submission) was as follows ([4] of the affidavit of Ms Hillary):
“The nature of the documents in Exhibit B is described as relating to an internal working document and business affairs.”
It is difficult to see that there is any difference in substance between the description of the contents in Ms Hillary’s affidavit (“internal working document and business affairs”), with the description in the Minister’s first written submissions (at [13]) (“administrative checklists”). The applicant did not explain to the Court why the description in the affidavit was not the subject of criticism, but the statement in the Minister’s counsel’s first written submissions was.
Further, in my respectful view, when that part of the judgment (Singh at [67]) is read contextually, the Full Federal Court made clear what the “premature disclosure” involved, and what was to be avoided was that the material would “not be inadvertently seen by the Court” (Singh at [67]).
In the current case, nothing done by the Minister’s counsel in written submissions has resulted in the material being “inadvertently seen by the Court”. The folios remained sealed until the commencement of the final hearing, and for that matter, continued to be so throughout the hearing of the applicant’s objection to the admissibility of the relevant material contained in the sealed envelope.
In my respectful view, the “premature disclosure” which the Full Federal Court sought to avoid by the adoption of the sealed envelope process, was that the Court would not see the material “prior to any debate as to whether it should be received” (Singh at [67]).
The general description of the material appearing in the Minister’s first written submissions (at [13]), and for that matter in Ms Hillary’s affidavit (at [4]), is not inconsistent with the process set out by the Full Federal Court in Singh (and also BJN16 and CQZ15). In fact, the description in [13] of the Minister’s first written submissions is no more than a “clear statement” as to the contents of the envelope. The written submissions are consistent with what is respectfully said in Singh. As Ms Hillary’s evidence asserts, the documents ([3] of Ms Hillary’s affidavit with specific reference to Singh at [67]):
“…reproduced at annexure A to this affidavit refers to folios 34 and 35 of the Department file. I have placed those folios in a sealed envelope marked Exhibit B in accordance with the stated requirement of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67].”
In all therefore, what is stated at [13] of the Minister’s first written submissions is not a “disclosure” of the material in the sealed envelope or its contents. It is a general indication of the character of those documents, consistent with the requirement for a “clear statement … as to its contents” (Singh at [67]). A clear statement in similar terms appears in the affidavit of Ms Hillary (at [4]).
Fifth, by way of completeness, I note that there was some discussion before the Court as to when the “debate” referred to in Singh (at [67]), commenced. That is, that there should be no disclosure prior to that debate.
The Minister initially seemed to indicate that the commencement of that “debate” occurred when the applicant filed his amended application, which put the s.438 certificate matter in issue.
There was no explanation from the Minister for the subsequent submission that the “debate” commenced at the hearing where arguments as to admissibility are presented.
The applicant’s position was clear that the “debate” commenced at the hearing.
I agree with the applicant on this point. I cannot see the utility or efficacy of putting the material in a sealed envelope if the relevant “debate” can be said to commence at the time of the making of an application, or even an amended application. In my view, the relevant “debate” commences at the hearing.
In any event, it is to be remembered, and as the Minister submitted, that while the applicant has directed attention to s.138 of the Evidence Act, the starting point for the current consideration is not whether the Minister’s counsel has acted “improperly” (and for the reasons set out above I find that he has not), but whether the material in the sealed envelope should be admitted into evidence.
This places the focus of the debate on s.55 and s.56 of the Evidence Act. That is, whether the evidence is relevant (s.55 of the Evidence Act) and if so, whether it is admissible (s.56 of the Evidence Act) (noting of course that admissibility is to be determined with reference to the Act as a whole, and see CQZ15 at [62]).
In this light, the recent Full Federal Court authorities, in my respectful view, make clear that the material in the sealed envelope may be relevant to the Court’s consideration as to whether the applicant has been denied procedural fairness by the Tribunal (CQZ15 at [62] - [65], BJN16 at [62] – [69] and BEG15 at [30]).
Therefore it is appropriate to admit the documents into evidence on the basis of relevance to a fact, or facts, in issue. For the reasons set out above, the documents are admissible.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 1 March 2018
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