WRWF and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1087
•16 July 2025
WRWF and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1087 (16 July 2025)
Applicant/s: WRWF
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3366
Tribunal:General Member R. West
Place:Melbourne
Date:16 July 2025
Decision:The Tribunal is satisfied that the discretion available under s.78(6) should be exercised to uphold the Respondent’s objection to the production of two emails held by Australian Border Force.
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General Member R. West
Catchwords
SUMMONS OBJECTION – summons issued at the request of the Applicant – objection to production of two emails on the basis that they were the subject of legal professional privilege – Respondent’s claim treated as an objection under s. 78(4) of the ART Act –Tribunal satisfied its discretion under s.78(6) is not confined to a consideration of legal professional privilege – general discretion consistent with s.79 to not require summonsed documents to be produced
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Statement of Reasons
On 10 June 2025 at the request of the Applicant a summons was issued to The Proper Officer of Australian Border Force requiring production of:
All files held by Australian Border Force relating to healthcare, medication and management of [Applicant] while in detention from the 22 November 2024 to 23 May 2025 under the care of Australian Border Force.
Files relating to [Applicant] while incarcerated at Southern Queensland Correctional Centre between the dates 1 September 2024 and 23 May 2025
On 11 July 2025 the Respondent’s solicitors advised the Tribunal by email that they objected to the production of two emails on the basis that they were the subject of legal professional privilege.
The Tribunal raised the issue with the parties at a Telephone Directions Hearing on 15 July 2025 (TDH). The Tribunal advised the parties that it would treat the Respondent’s claim as an objection under s. 78(4) of the Administrative Review Tribunal Act 2024 (Cth) and directed the Respondent to file a written notice as required by s.78(4).
In accordance with the direction the Respondent lodged a written objection to the production of two emails on 15 July 2025 by email in the following terms:
At the request of General Member West, the Minister sets out his objections in producing Email 1 and Email 2, on the basis of LPP, as follows.
Email 1: This is an email chain sent on 3 October 2024 from a Detention Status Resolution Officer of the Department to an Acting Supervisor in the Department's Health & Service Delivery section, attaching written draft legal advice in relation to a former detainee (not the applicant) in relation to the specific scenario where children are in state care arrangements and their parents are in detention, and noting that the applicant has 5 children in state care. The draft legal advice was prepared by the Minister's lawyers, the Australian Government Solicitors. This email and attached draft legal advice were forwarded by the Acting Supervisor to the Department's child protection section on 9 October 2024.
The Minister is seeking to claim LPP over this email and attached draft legal advice on the basis that it contains legal advice.
Email 2: This is an email sent on 6 December 2024 from the Department's Assistant Director in its Case Analysis & Review Section, to numerous Department personnel (30 plus email addresses) alerting that the applicant's case may be potentially affected by a particular decision handed down by the High Court of Australia, and that legal confirmation is being sought whether if the applicant's visa is not revoked that she will become affected by the Court's decision.
The Minister is seeking to claim LPP over this email on the basis that it discloses the request for legal advice and the subject of that legal advice.
The Tribunal has now considered the objection and has decided that the emails the subject of the Respondent’s notice are not to be produced for inspection or copying.
The Tribunal is satisfied that its discretion under s.78(6) is not confined to a consideration of legal professional privilege and that it has a general discretion consistent with s.79 to not require summonsed documents to be produced. Without definitively ruling on the question of legal professional privilege the Tribunal notes that the emails in question are internal confidential communications which include information related to the legal advice obtained by the Respondent. It also notes that the legal advice in Email 1 relates to a former detainee and not the Applicant. In addition, the Applicant’s representative, who sought the summons, confirmed in the TDH what she had said in earlier email advice that the Applicant did not seek production of the emails. In the circumstances the Tribunal is satisfied that the discretion available under s.78(6) should be exercised to uphold the Respondent’s objection.
Advocate for the Applicant: Dr M van Galen-Dickie, Sisters Inside Solicitor for the Respondent: Ms N Chandra, Hunt & Hunt Lawyers
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