SZTYV v MIBP

Case [2018] FCCA 64

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTYV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 64

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision not to grant applicants a protection visa – whether Tribunal misunderstood first applicant’s claims – whether Tribunal considered evidence on which the first applicant relied – whether it was reasonably open to Tribunal to conclude the first applicant’s claims were not credible.

PRACTICE AND PROCEDURE – Evidence – admissibility – public interest immunity – whether the disclosure of the contents of an anonymous letter provided to the Department of Immigration and Border Protection making assertions about matters relating to first applicant’s claims for protection relate to a matter of state within the meaning of s.130 of the Evidence Act 1995 (Cth) (Evidence Act) – whether the public interest in maintaining confidentiality over the letter outweighs the public interest in admitting the letter into evidence – direction under s.130(1) of the Evidence Act given.

Legislation:

Evidence Act 1995 (Cth), ss.130, 133

Migration Act 1958 (Cth), ss.424AA, 424A

Cases cited:

Gilson v Minister for Immigration & Multicultural Affairs [1997] FCA 642
Minister for Immigration and Border Protection v Singh & Anor [2017] HCATrans 107

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Sankey v Williams (1978) 142 CLR 1

Singh v Minister for Immigration and Border Protection [2016] FCCA 2464

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZNKO v Minister for Immigration and Citizenship [2010] FCA 297
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3
Vo v Minister for Immigration & Anor [2017] FCCA 1170
First Applicant: SZTYV
Second Applicant: SZTYW
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1957 of 2015
Judgment of: Judge Manousaridis
Hearing dates: 23 September 2016; 25 October 2016
Date of Last Submission: 25 October 2016
Delivered at: Sydney
Delivered on: 23 January 2018

REPRESENTATION

First applicant appeared in person and as litigation guardian for the second applicant assisted by an interpreter
Counsel for the First Respondent: Mr B Kaplan
Solicitors for the First Respondent: DLA Piper Australia

ORDERS

  1. Pursuant to s.130(1) of the Evidence Act 1995 (Cth) the confidential annexure to the affidavit of Prue-Eliza Monument affirmed on 17 March 2016 is not to be adduced into evidence.

  2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1957 of 2015

SZTYV

First Applicant

SZTYW

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicants seek judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicants a Protection (Class XA) visa (Protection visa).

Migration history

  1. The applicants are mother and daughter, and are citizens of Lebanon.  On 13 June 2012 the first applicant (applicant)…

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AGLC
SZTYV v MIBP [2018] FCCA 64
Case
[2018] FCCA 64
Decision Date

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Refugee Review Tribunal (the Tribunal) affirming a decision not to grant the applicants a protection visa. The applicants contended that the Tribunal had misunderstood the first applicant's claims, failed to consider relevant evidence, and that it was not reasonably open to the Tribunal to conclude the first applicant's claims lacked credibility. A significant issue also arose regarding the admissibility of an anonymous letter provided to the Department of Immigration and Border Protection, which contained assertions relevant to the first applicant's claims.

The court was required to determine whether the Tribunal had adequately considered the evidence relied upon by the first applicant and whether its adverse credibility findings were reasonably open to it. Furthermore, the court had to consider whether the anonymous letter was subject to public interest immunity under section 130 of the *Evidence Act 1995* (Cth) and, if so, whether the public interest in maintaining its confidentiality outweighed the public interest in its admission as evidence.

In relation to the anonymous letter, the court considered section 130 of the *Evidence Act*, which permits a court to direct that information or a document relating to "matters of state" not be adduced if the public interest in preserving secrecy or confidentiality outweighs the public interest in its admission. The court noted that section 130(4)(e) specifies that evidence relates to "matters of state" if its adduction would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law. This provision reflects common law principles of public interest immunity, which protect confidential sources of information provided to law enforcement and other bodies charged with administering the law. The court referenced *Gilson v Minister for Immigration & Multicultural Affairs* where documents containing allegations from an informant and departmental investigation documents were held to be subject to public interest immunity due to the likelihood of revealing the informant's identity.

The court also addressed the disclosure requirements under section 424A of the *Migration Act 1958* (Cth). Drawing on previous decisions, the court indicated that the requirement to "give" information under this section may not always necessitate the disclosure of an entire document, but rather so much of the information and its context as to ensure a meaningful opportunity for comment or response. The court noted that in some cases, the "substance" of the information may suffice, while in others, "clear particulars" are required, and that the extent of disclosure necessary depends on the specific facts and circumstances of each case, potentially including the identification of the source of the information.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I begin with s.130(1) of the Evidence Act 1995 (Cth) (Evidence Act) which provides:If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. The "matters of state” to which s.130(1) of the Evidence Act refer are circumstances that would arise if the evidence in question were to be adduced. Subsection 130(4) of the Evidence Act identifies six sets of circumstances that, for the purposes of s.130, are to be taken to relate to “matters of state”. Relevant to the matters before me is s.130(4)(e) of the Evidence Act which provides that the evidence in question is to be taken to relate to “matters of state” if adducing it would:disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State This reflects a class of cases to which the common law principles of public interest immunity have been held to apply. That class includes evidence that, if adduced, would reveal sources of confidential information provided to law enforcement officers.[68] An example of the application of the principle is provided by the circumstances Lehane J considered in Gilson v Minister for Immigration & Multicultural Affairs.[69] In that case the Immigration Review Tribunal had before it documents it did not disclose to the applicant containing allegations made against the applicant by an informant or informants and departmental documents regarding investigations of those allegations. His Honour found the documents were subject to public interest immunity:[70]The description of the documents in Ms Godwin's affidavit is, in my view, accurate, and I accept that the release of the documents would be likely to reveal the identity of an informant or informants. In those circumstances there is, in my view, undoubtedly a public interest in maintaining the confidentiality of the documents: that is clearly so in the case of police informers . . . ;it seems to be equally so in the case of those giving information, in confidence, to other bodies charged with the enforcement of the law . . . . There is also a public interest in the unimpaired administration of justice. Whether that latter interest prevails, where disclosure of the material which will reveal an informer's identity, only where disclosure may help to show that an accused person is innocent of an offence . . . or whether, on the other hand, a less constrained “balancing exercise” is called for . . . it is clear at least that the considerations relating to the administration of justice must be powerful indeed if the policy against revealing an informer's identity is to be overcome . . . .[68] See, for example, Sankey v Williams (1978) 142 CLR 1 at pages 65-66[69] [1997] FCA 642[70] Cases omitted

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In SZNKO the Tribunal relied on what it found was a substantial similarity between a letter given to it in an unrelated application and the letter on which the applicant before it relied in finding that the applicant had not given a truthful account of his past experiences. The Tribunal informed the applicant of the existence of the letter, and that the similarity of that letter with a letter on which the applicant relied gave rise to concerns about the applicant’s credibility; but the Tribunal did not disclose to the applicant the identity of the person who wrote the letter, the organisation on behalf of whom the letter was purportedly written, or its date. Flick J found that the content of the two letters and the similarity of their content “would be … part of the reason, for [the Tribunal’s] affirming the decision” to refuse the visa, and that the similarity in the two letters was, at the very least, part of the basis upon which the Tribunal member expressed the concern that the letters may have been “made to order”.[75] His Honour, however, further found that ““information” for the purposes of s 424A in the present proceeding is not to be so confined”.[76] His Honour said:[77]There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it [sic] which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that s 424A and s 424AA require the disclosure of so much as to ensure that the opportunity to “comment… or respond…” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.[75] [2010] FCA 297 at [20][76] [2010] FCA 297 at [21][77] [2010] FCA 297 at [23]. This passage was reproduced with approval by the Full Federal Court in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3