Federal Court of Australia

BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC), reasons for judgment for which were delivered on 9 March 2020 (Reasons), dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 April 2019. The Tribunal had affirmed a decision made by a delegate of the first respondent (Delegate) under s 65 of the Migration Act 1958 (Cth) (Migration Act) to refuse the appellant a Protection (Class XA) (Subclass 866) Visa (Protection Visa).

2    The application for judicial review before the FCC was based on two grounds: that the Tribunal erred by failing to exercise its jurisdiction by misdirecting itself as to the nature of the evidence before it in taking the view that certain claims in relation to arrests were not raised until after the Delegate’s refusal and subsequent application for review; and that the Tribunal exceeded its jurisdiction by failing to observe an inviolable limitation or restraint on the exercise of its power in questioning the appellant concerning communications between the appellant and his lawyer before advising him that legal professional privilege entitled him to refuse to answer.

3    The primary judge dismissed both grounds: the first, on the basis that it misstated the concerns expressed by the Tribunal in relation to the evidence (Reasons [46]); the second, on the basis that the Tribunal’s questions were procedural and did not invite the disclosure of legal advice (Reasons [72]). In any event, the appellant’s conduct was inconsistent with the maintenance of legal professional privilege and any privilege was waived by implication (Reasons [80]). Further, any failure on the part of the Tribunal to warn the appellant that he could claim legal professional privilege did not deprive him of a favourable outcome and so was immaterial and did not demonstrate jurisdictional error (Reasons [81]).

4    This appeal is concerned only with the primary judge’s findings in relation to the second ground. The appellant contends: first, that the primary judge should have found that the Tribunal’s decision was affected by jurisdictional error in that it failed to warn the appellant that he was entitled to assert legal professional privilege (the Failure to Warn Error), and that the Tribunal was acting in excess of power by asking certain questions that called for the disclosure of confidential communications (the Excess of Power Error), and that the appellant had not waived his privilege (the Waiver Error); secondly, that the primary judge erred in finding that any failure to warn did not deprive the appellant of a favourable outcome as it was not material to the outcome (the Materiality Error).

5    The respondent has sought leave to rely upon a Notice of Contention, filed on 22 September 2020, by which he seeks to uphold the decision of the primary judge on the ground that the appellant did not and cannot discharge his onus of proof with respect to establishing a lawyer-client relationship between the appellant and his migration agent, who was also a solicitor. The Notice of Contention was not filed within 21 days after the service of the Notice of Appeal, as required by r 36.24 of the Federal Court Rules 2011 (Cth), but was filed within 21 days after service of the Amended Notice of Appeal. The appellant did not oppose the grant of leave.

6    For the reasons that follow, the appeal should be dismissed.

The legislative framework

7    It is convenient to set out the relevant legislative provisions before summarising the factual background.

8    In relation to protection visas, generally and for the purposes of this case in particular, it is important to keep in mind the structure of the mandated power of the Minister under s 65 of the Migration Act to grant visas. As Gummow A-CJ and Kiefel J noted in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [39], it is conditioned upon a state of satisfaction or non-satisfaction as to whether the visa applicant has met the relevant visa criteria, and it is not discretionary. The section provides:

65    Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

    (i)     the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)     if not so satisfied, is to refuse to grant the visa.

9    Section 36 of the Migration Act identifies the criteria which an applicant must satisfy for the purposes of being granted a protection visa. Relevantly for present purposes, a specific criterion is set out in sub-section (2) as follows:

36    Protection visas—criteria provided for by this Act

    …

(2)     A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

10    Section 36(2A) defines significant harm in terms that encompass arbitrary deprivation of life, the imposition of the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

11    For the purposes of s 36(2)(a) the word “refugee” is defined by s 5H of the Migration Act as follows:

5H    Meaning of refugee

(1)     For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)     in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

…

12    The fear of persecution referred to must arise as a result of a “Convention ground”. Section 5J defines the meaning of “well-founded fear of persecution”, relevantly for present purposes, as follows:

5J    Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

13    It follows that, for the granting or refusal of a protection visa under s 65, the Minister must be satisfied (or, for refusal, “not so satisfied”) of a number of matters including that the applicant meets the refugee or the complementary protection criteria. Where the Minister reaches the relevant state of satisfaction (or otherwise), she or he is obliged to issue (or refuse) the visa. In that sense the Minister does not have any decisional discretion. The structure of the Migration Act requires the Minister to consider the application for a visa (s 47(1)) and, after doing so (s 65(1)), if reaching (or not reaching) the required state of satisfaction, to act accordingly. The state of mind, being either satisfaction or non-satisfaction, is a pre-condition to granting or refusing the visa. This structure was articulated by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37]:

The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned (Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183]).

Background

14    The appellant is a citizen of India, of the Sikh faith and Indian ethnicity, who fears harm in India and Thailand. He arrived in Australia from Thailand on 6 March 2014 on a (Subclass 600) Business Visa. His wife and daughter live in India.

15    Prior to his arrival in Australia, the appellant had been living in Thailand, where he ran a business, since 2011.

16    On 22 December 2014, the appellant lodged an application for a Protection Visa with the Department of Immigration and Border Protection (Department). As recorded in the Reasons, at [22], the appellant provided a statement in support of his Protection Visa in which he stated:

(a)    The applicant is a Sikh and his wife and child live in India.

(b)    The applicant came to Australia on a business visa, prior to which he had been living in Thailand since 2011, where he ran a business. The applicant ran the same business in India prior to living in Thailand.

(c)    The applicant’s clients would purchase business items from him on loan.

(d)    The applicant’s clients gave him excuses in response to his requests for the cost of unpaid items.

(e)    Just before leaving Thailand the applicant started to receive threatening calls and messages. The messages and calls told the applicant that if he wanted to remain safe he would not request the outstanding money and/or leave Thailand.

(f)    The same callers and messages said they would not leave the applicant alone even if he were to return to India as they had resources there and could harm him.

(g)    The applicant’s life was threatened both in India and in Thailand. The applicant fears for his life if he was to be returned to India or Thailand.

(h)    There is no safety for the applicant in India as anarchy is on the rise and India does not have enough resources to cope. Complaints like the applicants are not taken seriously in India.

17    On 9 November 2015, the Delegate refused the appellant’s application for a Protection Visa. In his Protection Visa interview before the Delegate on 4 November 2015, after the natural justice break, the appellant raised that “his troubles are due to his religious belief, being a Sikh” (Protection Visa Assessment p.3). The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to India, there is a real risk that he will suffer significant harm (Protection Visa Assessment p.11).

18    On 23 November 2015, the appellant lodged an application for review of the Delegate’s decision with the Tribunal.

19    The appellant attended the Tribunal hearing on 8 June 2018 and gave oral evidence. On 11 April 2019, the Tribunal affirmed the decision not to grant the appellant a Protection Visa and published its reasons (AAT Reasons).

20    The appellant was represented before the Tribunal. He provided two separate written submissions (dated 31 May 2018 and 2 June 2018) and additional supporting material (on 4 and 5 June 2018).

21    The submission of 31 May 2018 indicated, inter alia, that:

    the appellant belongs to a traditional Sikh agriculturalist family; he was baptised in 1990 to become a fully initiated member of the Sikh spiritual community; he commenced a tailoring business (AAT Reasons [22]);

    he was arrested by the Punjab police allegedly on the basis that four of his customers were members of a terrorist group; he was tortured and questioned about the group; the terrorists were killed by the police but the appellant was under constant surveillance (AAT Reasons [23]-[24]);

    whenever there was an incident in the surrounding areas the police would arrest him and tortured him to the extent that he could not walk, eat or speak. After being released from jail, the appellant had serious backaches and major problems with his bladder and urinary tract because the police would tie his hands and legs (AAT Reasons [25]);

    he eventually left India and established a business in Thailand (AAT Reasons [28]). When attempting to obtain payment from his creditor in Thailand, he was locked inside the business by two sons and other workers of the creditor (AAT Reasons [30]).

22    The AAT Reasons record that the appellant provided further material on 4 June 2018 which comprised various newspaper articles, dated between 2003 and 2005, reporting on police and custodial violence in the Punjab region and emails dated 2016 from the appellant’s father relating to continuing police harassment of the family and urging the appellant not to return to India (AAT Reasons [38]-[52]). Later on 4 June 2018, the appellant provided additional material comprising a letter from the President of a political party, of which it was claimed the appellant was a member, and recommending the appellant be given political asylum, together with various other documents authored by the President of that party raising concerns in various fora about the law and order situation in Punjab (AAT Reasons [53]-[57]).

23    The appellant’s further submission of 2 June 2018, inter alia:

    noted that he was not merely a baptised Sikh but an Amritdhari Sikh, who are a minority in Punjab and he had meant to tell the Delegate that Amritdhari Sikhs were being targeted and tortured by the Punjab police; he did not mean to say that Sikhs as a whole community are not safe in India (AAT Reasons [59]-[61]);

    stated that if he were to be sent back to India, his family would be in trouble again because the appellant's name still appears "in the list" because such cases are never closed by the police. If he were sent back, he may be falsely implicated in criminal activities and be eliminated in a false encounter by the Punjab police (AAT Reasons [69]-[71]).

24    Additional material was received by the Tribunal on 5 June 2018, which comprised an additional page of the letter from the President of the political party earlier referred to which concluded with the statement that the appellant would risk harassment, torture and death if he were returned to India and a medical certificate dated 4 June 2018 which stated that the appellant had reported that the urinary problems started after he had physical trauma in India by Indian police (AAT Reasons [72]-[73]).

25    The claims made in this additional material were significantly more substantial than those that had been made in the appellant’s written application for a Protection Visa, and indeed were also significantly more substantial than the matters that were before the Delegate.

26    The Tribunal found that the appellant’s oral explanations about his failure to provide some meaningful detail of his claims in his written Protection Visa application concerning his past claimed harm in India were not persuasive. The Tribunal did not accept that an applicant, who had availed himself of a migration agent to complete the form, and who had three meetings with the agent in the preparation of his written application, would not have provided such information in that application. Nor did the Tribunal accept that the appellant’s previous migration agent would act in a way so as to disadvantage the appellant’s Protection Visa claim because it would inevitably result in concern being raised about the credibility of a late claim being raised. Further, the Tribunal observed that the written application made no mention of the subsequently claimed occurrences in India, of being targeted because of his Sikh religion, or anything beyond his claims as to difficulty in his business dealings. The Tribunal found it incredulous that claims of false imprisonment in Thailand would not have been mentioned in favour of “threatening calls and messages” (AAT Reasons [92]-[93]).

27    The Tribunal found that the appellant’s delay in filling his written application for a Protection Visa was vague and unconvincing. The Tribunal did not accept that the appellant would wait for 9 months to lodge his application when he was unlawfully in Australia, if his claims were genuine (AAT Reasons [97]-[100]).

28    The Tribunal was also not satisfied as to the appellant’s explanations about why he failed to declare his returns to India in his written application, when coupled with the appellant declaring he travelled back once in his written submission, and telling the Tribunal orally he had returned 10 times. The Tribunal did not accept that the appellant would return to India 10 times, and by implication return to Thailand where he also alleged he feared harm, if his claims about past harm and concern for future harm were true (AAT Reasons [101]-[104]).

29    The Tribunal did not accept that the appellant had ever been harmed in India, either because he is a Sikh or a business person, or that he is of interest to anyone in India, or that he travelled to Thailand due to past harm in India or to avoid harm in India. The Tribunal concluded that the appellant was not a witness of truth and that he has fabricated his claims to remain in Australia (AAT Reasons [105], [107]).

30    The Tribunal was not satisfied that the appellant is a person in respect to whom Australia owes protection obligations under s 36(2)(a) or under s 36(2)(aa).

31    On 6 May 2019, the appellant filed an application in the FCC seeking judicial review of the Tribunal’s decision.

Review of Decisions to refuse a protection visa

32    An understanding of the legislative framework in relation to the review of decisions to refuse a protection visa is important in the context of the alleged errors relied on by the appellant in this case.

33    Part 7 of the Migration Act is concerned with “Reviewable Decisions”. Under s 411(1)(c), a decision to refuse to grant a protection visa (except in certain circumstances not presently relevant) is reviewable by the Tribunal. If a valid application is made under s 412 for review of a Part 7-reviewable decision, s 414(1) provides that the Tribunal must review the decision.

34    Section 420 was amended in 2015 by the Tribunals Amalgamation Act 2015 (Cth) (TA Act) (Sch 2 Part 1 ss 87 and 88) to omit subsection (1), which had provided that, “The Tribunal, in carrying out its functions under this Act, is to pursue an objective of providing a mechanism of review that is fair, just, informal and quick”.

35    Section 420 now provides merely that, in reviewing a Part 7-reviewable decision, the Tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. There is therefore little guidance to be drawn from consideration of s 420 prior to its amendment (SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; (2007) 159 FCR 1; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611).

36    Division 4 of Part 7 of the Migration Act is concerned with the conduct of a review by the Tribunal. In particular, s 422B provides an exhaustive statement of the natural justice hearing rule in the following terms:

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 416 [no requirement to consider earlier information], 437 and 438 [restriction on disclosure of certain information] and Division 7A [giving and receiving documents], in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

37    Section 424A provides, inter alia, that the Tribunal must give the applicant, in writing, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. Section 425 requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. If an applicant appears before the Tribunal in response to such an invitation, the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review and must invite the applicant to comment on or respond to the information (s 424AA).

38    Section 433, which is in Division 6 of Part 7 of the Migration Act, is concerned with the refusal by a person to answer questions before the Tribunal. Subsection (2) provides:

Questions

(2)    A person commits an offence if:

(a)    the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and

(b)    the Tribunal has required the person to answer a question for the purposes of the proceeding; and

(c)    the person fails to answer the question.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(3)    Subsection (2) does not apply if answering the question might tend to incriminate the person.

39    The current iteration of s 433 was enacted as from 1 July 2015 by the TA Act Sch 2 Part 1 s 101. Its predecessor provided:

(1)    A person appearing before the Tribunal to give evidence must not:

(a)     when required under section 427 either to take an oath or to make an affirmation – refuse or fail to comply with the requirement; or

(b)    refuse or fail to answer a question that the person is required to answer by the Tribunal.

Penalty: Imprisonment for 6 months.

(1A)    Subsection (1) does not apply if the person has a reasonable excuse.

40    The purpose of the amendment is explained in the Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (EM). The EM emphasises that the substance of the existing elements of the offence were to be retained but that the defence of reasonable excuse was to be removed, consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which advises against the use of reasonable excuse defences because of their vagueness (EM [906]). It also explains that, “while the privilege against self-incrimination applies in common law, for the avoidance of doubt, new subsection[s] … 433(3) would insert a specific defence of self-incrimination … This provides certainty that the privilege would not be abrogated” (EM [907]).

41    In respect of legal professional privilege, the EM states, at [909]:

It is noted also that legal professional privilege applies in common law and has an equivalent in the Evidence Act. As no express abrogation is applied to this provision, legal professional privilege is intended to apply.

The Tribunal’s decision

42    The Tribunal dismissed the appellant’s application for review having rejected his credibility and finding that the entirety of his material factual claims was fabricated (AAT Reasons [79] and [105]). The Tribunal reached this conclusion in reliance on the omission of claims from his Protection Visa application, his delay in applying for the Protection Visa, and his repeated return travel to India which was not declared in his application for the Protection Visa.

43    Under s 474(2) of the Migration Act, the decision of the Tribunal, being one of an administrative character made under the Act, is a privative clause decision. Section 474(1) provides that such a decision is final and conclusive. If, however, the Tribunal’s decision is infected by jurisdictional error, then it is not a decision which is made under the Act: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [87].

The consideration by the FCC

44    Before the FCC, the appellant argued that the Tribunal failed to consider the totality of the evidence before it or failed to engage intellectually with evidence in relation to the appellant’s claims of arrests by the police in 1991 and 1992. It was contended that the Tribunal had found that these claims were not raised until after the Delegate’s refusal and subsequent application for review, contrary to the appellant’s claim that he made them to the Delegate at an interview before the Tribunal’s decision.

45    As the primary judge correctly observed, this ground of review misstated the concern expressed by the Tribunal in relation to the claims and the Tribunal did not assert that the claims were not made to the Delegate at interview (Reasons [46]).

46    It was contended further that the Tribunal had questioned the appellant about communications between the appellant and his lawyer without giving the appellant a warning that legal professional privilege may entitle him to refuse to answer the questions asked of him by the Tribunal. In so doing, the Tribunal exceeded its jurisdiction by failing to observe an inviolable limitation or restraint on the exercise of its powers.

47    This appeal is concerned with the primary judge’s findings that the Tribunal’s questions were not questions that invited the disclosure of legal advice (Reasons [72]) and that, in any event, the appellant’s conduct was inconsistent with the maintenance of legal professional privilege. Any privilege was therefore waived by implication (Reasons [80]). Further, any failure on the part of the Tribunal to warn the appellant that he could claim legal professional privilege did not deprive him of a favourable outcome and so was immaterial and did not demonstrate jurisdictional error (Reasons [81]).

Consideration

48    It was uncontentious that legal professional privilege was not abrogated by the Migration Act in the context of a review by the Tribunal under Part 7.

49    The High Court has repeatedly stated that legal professional privilege is not confined to judicial and quasi-judicial proceedings: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281; Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543.

50    In SZHWY, the Full Court considered s 433 as originally enacted and whether a claim of legal professional privilege would amount to a reasonable excuse for the purposes of s 433(1A). Lander J held, at [44]:

There is nothing in Division 6 which would suggest that a person appearing or giving evidence in the Tribunal is not entitled to claim the benefit of the privileges to which I have referred. There can be no reason why a communication between an applicant for a protection visa and his or her solicitor should not be privileged in any proceedings relating to a claim for protection under the Convention, the Protocol and the Act. The purposes underlying the reason for legal professional privilege would be best served by recognising that such a communication is privileged where an administrative decision maker is conducting an inquiry into a claim for a protection visa. It does not matter that the hearing is inquisitorial rather than adversarial. Nor does it matter that the hearing is being conducted by an administrative decision maker. Communication between an applicant for a protection visa and the applicant’s legal advisers for the dominant purpose of obtaining legal advice or for the use in existing or reasonably contemplated proceedings before the Tribunal are privileged.

51    Graham J held, at [110]:

Section 433(1A) of the Act makes it clear that a privilege such as legal professional privilege would provide a reasonable excuse for a refusal or failure to answer a question that an appellant was required to answer by a Tribunal Member.

52    Rares J held, at [158]:

It is well established that proceedings in the tribunal are inquisitorial in their nature. But its power to inquire is constrained by the purpose of its function of review (s 414) and the principle that it exercise that power in a reasonable way. Legal professional privilege is an important common law right which applies to proceedings in the tribunal, as s 443(1A) recognises.

53    The Full Court was agreed that legal professional privilege was not abrogated by the Migration Act in the context of a review by the Tribunal under Part 7. The 2015 amendment to s 433 does not alter that position; indeed, the intention of the legislature puts the issue beyond doubt.

54    What was contentious is whether, in the particular circumstances, any claim for legal professional privilege arose in the context of the questions posed by the Tribunal and, if so, what consequences then flow.

55    The appellant contends that, on ordinary common law principles, he was entitled to assert legal professional privilege. Therefore, the Tribunal’s decision was affected by jurisdictional error in that it failed to warn the appellant that he was entitled to assert legal professional privilege, and that the Tribunal was acting in excess of power by asking certain questions that called for the disclosure of confidential communications. The appellant contends further that he had not waived his privilege.

56    The respondent contends that no issue of legal professional privilege arises because the appellant cannot and did not discharge his onus of proof with respect to establishing a lawyer-client relationship between himself and his migration agent, Mr Chaudhry and, in any event, the Tribunal’s questioning did not encroach on areas in which the appellant might have been able to claim legal profession privilege.

57    The threshold issue, which is raised by the Notice of Contention, is whether the appellant’s migration agent, Mr Chaudhry, was acting solely qua migration agent, and not qua lawyer, when providing the advice which became the subject of the questions before the Tribunal.

Relevant Principles

58    As explained by the High Court in Daniels, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [9]:

[L]egal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

59    The circumstances in which those communications are made are not limited to the adducing of evidence in the course of a hearing in a court. The ambit of the common law doctrine of legal professional privilege exceeds that of the Evidence Act 1995 (Cth), which is confined to the application of the privilege in the courtroom where evidence is sought to be given: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [19]-[20]. It extends to professional advice given by lawyers to clients as to what evidence or submissions should be placed before a commission of inquiry: AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 at [100].

60    Legal advice privilege “protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services”: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, per Gleeson CJ, Gaudron and Gummow JJ at [35]-[36], and “may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice”: Daniels at [9]; Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [10].

61    The onus of establishing that privilege applies is on the person asserting it: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [28]. To sustain a claim of privilege, the claimant must not merely assert it, but must prove the facts that establish that it is properly made: Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7]. The Court must act upon admissible evidence, not upon hearsay: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at [21].

62    The concept of “legal advice” is not to be narrowly construed as formal advice as to the law; it extends to advising about what should prudently be done in a relevant legal context but does not extend to purely factual or commercial advice: DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 at [45]; Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [12]; Kenquist Nominees at [15]. The advice must, however, satisfy the description of professional advice given by a lawyer in his or her capacity as such: AWB at [101].

63    Where communications take place between a client and his or her independent legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications. In the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given: Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at [23]-[27]; AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 (AWB No 5) at [44(4)].

64    The “dominant” purpose is a prevailing or paramount purpose or one which predominates over other purposes: AWB at [105]; Archer at [11]. The purpose for which a communication is made is a question of fact to be determined objectively from the nature of the relevant communication, the content of the communication, the relevant commercial context and the relationships between the parties: Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 at [30]; AWB at [110]. Notwithstanding that the purpose must be determined objectively, evidence of subjective purpose is relevant and although not necessarily conclusive, can be decisive: Esso at [172]; AWB (No 5) at [44(2)]; Archer at [11]; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 at [32]; Kenquist Nominees at [11].

Did the Tribunal’s questions call for the disclosure of privileged communications?

65    The appellant submits that four questions asked by the Tribunal invited the disclosure of communications that were confidential and engaged in for the dominant purpose of obtaining legal advice. Those questions are identified in bold but it is desirable to set out the full transcript of the interchanges before the Tribunal relevant to this question.

Q. So, [Mr Applicant], can you just confirm for me that your protection visa application, so that was your written application for the department is all true and correct?

A. INTERPRETER: The information, some of the information given in that application is not correct. I found out first time during the interview with the department.

Q. Okay, all right. So, with that application that was written I see that you had the assistance of a migration agent. Is that right?

A. INTERPRETER: Yes, yes, they did it for me.

Q. All right. And in the application you signed that it was true and correct?

A. INTERPRETER: Because I signed it, but I was told that they will ask for more information which they never asked me later or never informed me, but there’s more information.

Q. I don’t understand what you mean, can you explain that?

A. INTERPRETER: Some of the points I told them that is right, but it needed further explanation or further description of some of the events that took place. That was not given.

Q. Now, when you say that was not given, are you saying that you provided that information and that your agent didn’t put it down or are you saying that they told you that you didn’t need it or did they not ask you questions. You’ll need to explain that for me please. (Q4)

A. INTERPRETER: Because they told me that they will get it later and submit it later, on a later date.

Q. Okay.

A. INTERPRETER: With the ..(not transcribable).. date.

Q. Okay. Can you tell me exactly - can you give me an example of how that happened?

A. INTERPRETER: Like now I have put in the submission.

Q. Mm.

A. INTERPRETER: They told me that if the immigration asked for it, then we will need the submission. So, they didn’t give it at that point.

Q. No, they’ll need specifically, you know, if you say that they’ve left something out, I’m asking how that came about. Can you give me an example of when you were completing the application where something was left out and how it came to be left out?

A. INTERPRETER: At that time like the way, they filled the application, they just write the mean thing without any description or without any details.

Q. Mm-hmm.

A. INTERPRETER: And that’s what I mean that they were saying that the detail, they would submit it at a later date. It’s not wrong, it is correct, but the full details are not there.

Q. Okay. All right, so did they tell you to leave out the details or did you say that you would provide the details later? (Q10)

A. INTERPRETER: Because they are under the impression, what they told me that - ..(not transcribable).. get the details and ask for detail later, which they never did. So, whatever was there, they just filled in the application.

Q. When you say you were under the impression of that, I’m asking you how some of the details came to be left out? I want to know how that came about?

A. INTERPRETER: Because I was not fully aware of this process.

Q. Yeah.

A. INTERPRETER: So, I was under the impression that they would ask for more details and then I’ll give them, or they will contact me later for more details and I’ll give it to them. They, at that time they didn’t mention that they would submit these details at a later date and I kept waiting that they would contact me which they never did. Like it had been prepared now, it’s complete.

Q. Yeah.

A. INTERPRETER: That information given in that application is correct. It’s not, there is no error in that, but it’s not so detailed as been done in the current application. I was also unaware of that and I was also - I had in mind that maybe they would ask in the interview or on that day, that they need such and such information, and then I’ll give them that information, but I was not asked for more information.

Q. When you say, “Given them” do you mean your agents?

A. INTERPRETER: Yeah, because I was relying on my, my migration agent, that they would advise me where to go from there and what to do next.

Q. Yeah. Okay. All right, so did you - I’m just trying to clarify when you said at the time that they would submit the details at a later date. Did your agent tell you that that’s what they would do or did you just presume? (Q15)

A. INTERPRETER: That, that’s what I was advised we would be asked for more information and then we would go further detail, because I was, I wasn’t sure when we, we had to give this detailed information.

Q. Okay. So, did you tell your agent all of your claims to your agent? (Q16)

A. INTERPRETER: Yes, yes I did tell them everything, but they, they said at this stage you just submit a summary of the event and we’ll give the details at a later date.

Q. Okay.

A. INTERPRETER: Because they just ..(not transcribable).. that somebody, of all the things which have happened--

Q. Mm-hmm.

A. INTERPRETER: --and they just submitted that summary with my application. Because they said there’s plenty time, we can give the details later.

Q. Okay. All right, so your application was signed on 18 December 2014.

A. INTERPRETER: Yes.

Q. Okay, all right. So, when did you first see the agents about the protection visa?

A. INTERPRETER: I don’t have the exact date in mind--

A. Mm.

A. INTERPRETER: --but I think a week or two weeks prior to that date--

Q. Mm-hmm.

A. INTERPRETER: --we met the agent, just to get some information.

Q. Yeah. So, how many appointments did you have with your agent?

A. INTERPRETER: Prior to that date?

Q. No, how many appointments have you had in total with that agent?

A. INTERPRETER: I used to visit that agent every month or two months after. Just to get an update to see what’s happening--

Q. Okay.

A. INTERPRETER: --and they used to tell me that if they receive any update they will let me know.

(emphasis added)

66    The primary judge characterised the Tribunal’s questions as “procedural [they] concerned the way in which the applicant’s visa form came to be completed. They were not questions that invited the disclosure of legal advice, unlike the situation in SZHWY at [75]” (Reasons [72]).

67    The characterisation of the questions as “procedural” does not assist in determining whether or not the questions were directed at matters that were, or might properly be, the subject of legal professional privilege.

68    It is however tolerably clear from the manner in which the primary judge dealt with the issue, and from the respondent’s submissions before the primary judge (RS FCC [33]), that this characterisation is drawn from the provisions of Part 3 of the Migration Act – Migration Agents and Immigration Assistance. Those submissions emphasised the definition of “immigration assistance” in s 276, which can only be provided by a registered migration agent (whether or not such a person is also a lawyer).

69    Section 276 provides:

(1)    For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

(a)    preparing, or helping to prepare, the visa application or cancellation review application; or

(b)    advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

(c)    preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

(d)    representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

70    At the time relevant to these proceedings, “immigration assistance” could be contrasted with “immigration legal assistance”. The latter was defined in s 277, relevantly, to occur when a lawyer acts for a visa applicant in preparing for proceedings before a court or gives advice to a visa applicant in relation to the visa application that is not advice for the purpose of the preparation or lodging of the visa application (s 277(1)(c)(i)).

71    Section 280(1) provided that a person who is not a registered migration agent must not give immigration assistance and sub-s (3) provided that the section does not prohibit a lawyer from giving immigration legal assistance. Importantly, nothing in s 280 prohibited a lawyer, who is also a registered migration agent, from giving immigration assistance. Little assistance can therefore be derived from these provisions in determining the metes and bounds of whether advice that is given by a migration agent, who is also a lawyer, is legal advice within the scope of the privilege.

72    We interpolate that Part 3 has been amended recently by the Migration Amendment (Regulation of Migration Agents) Act 2020 (Act No. 71 of 2020), which was passed on 15 June 2020, and received Royal Assent on 22 June 2020. It removes unrestricted legal practitioners from the regulatory scheme that governs migration agents such that unrestricted legal practitioners can no longer register as migration agents but will be entirely regulated by their own professional bodies. It repeals s 277 and replaces s 280(3), which now provides: “This section does not prohibit an Australian legal practitioner from giving immigration assistance in connection with legal practice”.

73    The consequence of these amendments is that Australian legal practitioners are permitted to give immigration assistance, including by representing an applicant before a court or review authority, without needing also to be registered as a migration agent. It may be the case that the capacity in which an applicant’s representative is acting will now be more obvious to a tribunal. The amendments will make no difference to any question as to whether particular communications between an applicant and his or her representative fall within the scope of legal professional privilege.

74    Putting aside consideration of the amendments (which do not apply in this case), it does not necessarily follow that the determination of the question of whether a communication with a lawyer, who is also a migration agent, can be determined solely by reference to whether the communication falls within the definition of “immigration assistance”. That this must be so is apparent particularly from sub-s (b) “advising…about the visa application”, (c) “preparing for proceedings before a court …” and (d) “representing the visa applicant ...in proceedings before a court or review authority…”. These are all matters which self-evidently have the potential to involve communications which may attract legal professional privilege. Conversely, it also does not follow that because an applicant’s migration agent is a lawyer, that all the communication between them is necessarily covered by legal professional privilege.

Was the onus in relation to a lawyer-client relationship discharged?

75    The Notice of Contention seeks to uphold the decision of the primary judge on the additional ground that the appellant did not and cannot discharge his onus of proof with respect to establishing a lawyer-client relationship. The respondent contends that Mr Chaudhry was acting solely in his capacity as a migration agent in relation to the advice he gave the appellant, or in the alternative, if there was a lawyer-client relationship, the appellant’s engagement of Mr Chaudhry, and the communications with him, were for the dominant purpose of the preparation and lodgement of a visa application and therefore not the subject of legal professional privilege.

76    The relevant time at which the onus of proof needed to be satisfied was at the hearing before the Tribunal. In this context, it is important to recall that s 420 provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case.

77    The primary judge held that it “was common ground that the applicant’s migration agent was also a lawyer” (Reasons [56]). Although the capacity in which Mr Chaudhry was said to have been acting was very clearly articulated in the grounds of review before the primary judge, there is nothing to be discerned from the Reasons to suggest that there was any real controversy about whether the professional advice was given in any capacity other than as a lawyer, albeit by one who was also a registered migration agent. No evidence was called on the matter.

78    That issue having been raised with the parties during the hearing of the appeal, the respondent was granted leave to provide the Court with the written submissions that had been relied on before the FCC. Those submissions were in the following terms:

34.     It is also clear from the Tribunal’s questions, and the applicant’s responses, that the information being sought was about what the applicant’s migration agent had said and done in his capacity as a migration agent. This is consistent with the migration agent providing ‘immigration assistance’ as defined by s 276 of the Act. Specifically, the use of ‘knowledge of, or experience in, migration procedure to assist a visa applicant’ by ‘preparing, or helping to prepare, the visa application’ or ‘advising the visa applicant…about the visa application’.

35.    Legal professional privilege does not apply to a communication with a migration agent acting in that capacity, even if that person also happens to be a lawyer [NBMB & Anor v Minister for Immigration & Anor [2007] FMCA 1168 at [32] (footnote 10)]. Although the migration agent Mr Chaudhry was a lawyer, when he assisted the applicant with the preparation of his visa application, Mr Chaudhry was giving ‘immigration assistance’ as defined and was acting in his capacity as a migration agent.

79    The primary judge’s finding comes at a point in her Reasons immediately after she has set out Ground 2 of the application for review, being “that the Tribunal questioned the applicant about communications between the applicant and his lawyer without giving the applicant a warning that legal professional privilege may entitle him to refuse to answer the questions” (Reasons 53]) (emphasis added). In para [54], she then sets out the relevant part of the transcript before turning, in [55], to the appellant’s submissions on SZHWY.

80    After finding that “it was common ground” that Mr Chaudhry was a lawyer, the primary judge turned to deal with the respondent’s submissions that the questions did not encroach on any area in which the appellant might have been able to claim legal professional privilege (Reasons [57]-[72]) before turning to the question of waiver (Reasons [73]-[80]).

81    It must be accepted that, despite it being common ground that Mr Chaudhry was a lawyer, the primary judge did not address the matter raised in the two paragraphs of the respondent’s written submissions set out above and made no finding about the capacity in which Mr Chaudhry was acting. This may be because the issue was of such little consequence given the focus of the respondent’s submissions – being that the questions did not, in any event, encroach on any area in which the appellant might have been able to claim legal professional privilege. Thus, the question of the capacity in which Mr Chaudhry was acting was largely redundant and remains so. The respondent contends that, regardless of the capacity in which Mr Chaudhry was acting, none of the questions invited the disclosure of privileged information.

82    For that reason, and having regard to the fact that the matter has only been raised by way of a (late) Notice of Contention, leave to rely on the ground stated in the Notice of Contention should be refused.

83    Nevertheless, despite the Tribunal’s repeated reference to the appellant’s “migration agent”, there was some evidence before the Tribunal that was capable of establishing the existence of a lawyer-client relationship between the appellant and Mr Chaudhry. In determining whether or not a party has discharged the onus with respect to the existence of such a relationship, the scope of s 276(1) is neither the beginning nor end of whether a lawyer, who is also a registered migration agent, is acting qua lawyer or qua migration agent.

84    In the present circumstances, the appellant pointed to the documentary evidence that might support an inference that Mr Chaudhry was advising both in his capacity as a lawyer and as a migration agent being, primarily, the covering letter on “AusAsia Lawyers” letterhead to the Department in which he was identified as “Solicitor & Migration Agent”. That document was apparently before the Tribunal (AAT Reasons [12]) and the Tribunal observed that the appellant “completed his written protection visa application with the assistance of Muhammad CHAUDHARY of Ausasia Lawyers” (AAT Reasons [13]).

85    There is nothing unusual about an applicant for a protection visa seeking legal advice, as well as “immigration assistance”, in relation to his or her application for such a visa. In our view, the circumstances of this case fall within the category of “an ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances” (Kennedy v Wallace at [27]). Such evidence as existed before the Tribunal, being the covering letter, was capable of giving rise to the inference that legitimate legal advice was being sought and being given (Kennedy v Wallace at [27]). This is particularly so in the context of proceedings before the Tribunal where it is not bound by the rules of evidence (Migration Act s 420).

Did the questions invite the disclosure of communications that could be the subject of legal professional privilege?

86    The respondent contends that, regardless of whether there was a lawyer-client relationship between the appellant and Mr Chaudhry, none of the questions invited the disclosure of communications that were for the dominant purpose of obtaining legal advice; the purpose was for the giving of immigration assistance as defined in s 276(1).

87    The parties approached the submissions on the basis that all the questions either were, or were not, the subject of the privilege. It is necessary to consider the impugned questions individually and in the context in which they occurred.

88    It is important to consider the timing of the questions in the context of the Tribunal hearing as a whole. The questions occurred at the beginning of the hearing, just after the preliminary matters had been dealt with. The Tribunal had asked the appellant to confirm the accuracy of his written application. The appellant indicated that it was correct, but that it was incomplete, “Because I signed it, but I was told that they would ask for more information…”. The Tribunal asked the appellant to explain what he meant. The response that followed was, “Some of the points I told them that is right but it needed further explanation or further description of some of the events that took place. That was not given.”

89    The question that followed, Q4, asks in essence for an explanation of the phrase, “That was not given.” The Tribunal sought clarification of whether the “further information” was provided by the appellant and not written down, or whether the appellant was told he didn’t need it, or whether the appellant was not asked questions.

90    This question is clearly directed at seeking to understand how the completion of the application form was undertaken. The question was not directed to the substance of any legal advice about the appellant’s application for a visa that may or may not have been given by Mr Chaudhry. This question did not invite the disclosure of information the subject of legal professional privilege.

91    Similarly, Q10 is directed at understanding what transpired during the completion of the application form. It must be considered in the context of the question and answer that immediately preceded it. The appellant was asked, “Can you give me an example of when you were completing the application where something was left out and how it came to be left out?” The appellant responded, “At that time like the way, they filled the application, they just write down the mean thing without any description or without details. And that’s what I mean they were saying that the detail, they would submit it at a later date. It’s not wrong, it is correct, but the full details are not there.” Q10 is concerned with the question of how the details came to be left out when the form was being filled in, as had been suggested by the appellant.

92    Contrary to the position in SZWHY at [8], the Tribunal did not ask, “And what did he advise you to do?” It does not ask about whether the appellant was given legal advice to leave some claims in or out; it is directed at establishing whether he had given the details to Mr Chaudhry or whether he had told Mr Chaudhry that he would provide the details later. It did not invite the disclosure of information the subject of legal professional privilege.

93    Q15 followed answers given by the appellant to the Tribunal’s question, over which no privilege is claimed, “…I’m asking you how some of the details came to be left out? I want to know how that came about?” The appellant responded:

So, I was under the impression that they would ask for more details and then I’ll give them, or they will contact me later for more details and I’ll give it to them. They, at that time they didn’t mention that they would submit these details at a later date and I kept waiting that they would contact me which they never did. Like it had been prepared now, it’s complete.

That information given in that application is correct. It’s not, there is no error in that, but it’s not so detailed as been done in the current application. I was also unaware of that and I was also - I had in mind that maybe they would ask in the interview or on that day, that they need such and such information, and then I’ll give them that information, but I was not asked for more information.

94    The Tribunal then asked, “When you say, ‘Given them’ do you mean your agents?” The appellant responded with, “Yeah, because I was relying on my, my migration agent, that they would advise me where to go from there and what to do next.”

95    Q15 followed immediately thereafter: “All right, so did you – I’m just trying to clarify when you said at the time that they would submit the details at a later date. Did your agent tell you that that’s what they would do or did you just presume?” In context, this question is clearly directed at what the appellant was told about the timing of aspects of his application, namely whether he was told details would be submitted after the application form itself. This question did not invite the disclosure of information the subject of legal professional privilege.

96    The appellant answered that question in terms, “[T]hat’s what I was advised we would be asked for more information and then we would go further detail, because I was, I wasn’t sure when we, we had to give this detailed information.” Q16 then asked, “So did you tell your agent all of your claims to your agent?”

97    Following on immediately from the appellant’s indication that he had been given “advice”, Q16 comes perilously close to asking for the disclosure of what instructions had been given to Mr Chaudhry in the course of the appellant’s consulting him for advice about the visa application. The question went further than questions about the process and timing of the application. The question was not one that went only to a matter of the logistics of completing the application – it went to the very substance of the scope of the instructions that the appellant gave to his legal adviser for the dominant purpose of obtaining legal advice in relation to his application for a Protection Visa.

98    In our view, at this point the Tribunal’s question did invite the disclosure of information that might or would be the subject of legal professional privilege: Esso at [35]; Daniels at [9]. Consequently, the primary judge ought to have concluded that the communications of which Q16 sought disclosure may have been the subject of legal professional privilege.

Did the Tribunal act beyond power?

99    The more difficult question is what flows from the circumstance where a tribunal asks a question, the answer to which may or would disclose the contents of communications that would be the subject of legal professional privilege? The appellant submits that the primary judge erred by failing to hold that the Tribunal fell into jurisdictional error by asking questions it was not empowered to ask and/or by failing to advise the appellant that he was entitled to refrain from answering the questions.

100    The nature of the jurisdictional error which might arise in such circumstances was the subject of the decision in SZHWY where the Full Court apparently diverged, albeit on a very narrow basis.

101    The majority was agreed that a decision maker who exceeds the authority or power given by the Act under which the decision maker is empowered to act commits jurisdictional error (per Lander J at [74], per Rares J at [136]). The majority was also agreed that a tribunal was not authorised by the Migration Act to require a person to answer a question which would disclose a communication to which legal professional privilege attaches (per Lander J at [76], per Rares J at [158]).

102    Rares J, however, considered that the very asking of such a question was unlawful, at [158]-[159]:

An impertinent inquiry by the tribunal seeking the disclosure of a communication to which legal professional privilege attaches is not authorised by the Act and is, thus, unlawful…

The existence of s 433(1A) recognises that the tribunal may ask a question which it is not entitled to require to be answered. Thus, s 433(1A) itself does not make the asking of the question unlawful, but excepts the witness from the ordinary consequence of a refusal or failure to answer. But, just as a statutory power to issue a search warrant does not permit the warrant to be issued where it seeks what is undoubtedly privileged, so here, the power of the tribunal conferred by the Act did not extend to asking the appellant to disclose what he talked to his solicitor about concerning his application for a visa. (emphasis added)

103    As such there was an inviolable limitation or restraint on a tribunal’s power to ask questions in its inquisition. If a tribunal acted without regard to that limitation or restraint, it committed jurisdictional error (at [161]). If he were wrong in this conclusion, Rares J considered that the tribunal should have taken steps to advise the appellant that he was entitled to maintain his privilege (at [160]).

104    Lander J did not, however, consider that the asking of the question by a tribunal was, of itself, sufficient to infect the exercise of jurisdiction. Although noting that s 132 of the Evidence Act (1995) (Cth) does not apply to a hearing before the Tribunal (at [72]), his Honour held that a tribunal has an obligation to advise an appellant of his or her right to claim legal professional privilege because a tribunal “is not entitled to exercise a power to destroy a freedom of communication which the law seeks to protect” (at [76]). He said, at [77]:

In my opinion, the Tribunal, when conducting its inquiry and in the exercise of its inquisitorial function, should advise a person of their right to claim privilege against self-incrimination or legal professional privilege if it appears that a question asked of the person may give rise to a legitimate claim of that privilege.

105    The apparent divergence between the members of the majority of the Full Court is therefore whether there is a restraint on the power to ask questions which would reveal confidential communications, breach of which, merely by asking the question, amounts to jurisdictional error, or whether the exercise of jurisdiction is only beyond power when a failure to warn of the right to exercise the privilege destroys a freedom which otherwise exists. In our view, the latter conclusion is to be preferred.

106    It is consistent with the requirements in Division 4 of Part 7 of the Migration Act relating to the conduct of a Review and, in particular, the provisions of s 424AA whereby a Tribunal may give to an applicant appearing before it the opportunity to comment or respond to information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. It is also consistent with the fact that legal professional privilege has not been abrogated by s 433 of the Migration Act. It would be a curious result if it were “unlawful” for a tribunal to ask a question that might otherwise deprive a person of procedural fairness. The preferable view requires a tribunal to advise an applicant of his or her entitlement to maintain the privilege. An applicant might then decide to waive the privilege, but that will be a matter for the applicant. A tribunal that proceeds to exercise its inquisitorial power without affording an applicant the opportunity to claim privilege commits jurisdictional error, provided that the error is material.

107    It is important to be cognizant of the fact that in many review hearings before the Tribunal, neither the Tribunal member, nor an applicant’s representative may be legally trained. Thus, in many circumstances, the tribunal member, the applicant, and his or her migration agent may be wholly unaware of an applicant’s entitlement to claim legal professional privilege. That cannot be assumed to be the case in the present context where the Tribunal was constituted by a Judicial Member.

108    The context of the present case, however, tends to show how unlikely it may be that an applicant will be in a practical position to claim privilege. The appellant spoke limited English; the hearing before the Tribunal was conducted through an interpreter. The proceedings were being conducted by a Commonwealth official, who the appellant understood had the power to make a decision about whether the Department’s decision not to grant him a visa should stand or whether the matter would be sent back to the Department. The appellant was told that he must tell the truth and if he is discovered not to have told the truth, any visa granted can be cancelled and he could also be liable to criminal prosecution. He was informed that the Tribunal would make a decision based on the information that he provided. As was observed by Rares J in SZHWY at [168], an applicant for review of a claim for a protection visa will not have any idea or intuition that an official in the position of the tribunal would not be acting within his or her legal powers in asking questions or that an applicant would have the legal right to refuse to answer on the ground of legal professional privilege, or indeed the privilege against self-incrimination. By contrast, a tribunal could be expected to understand that the common law right of applicants to legal professional privilege is not abrogated by the provisions of Div 6 of Part 7 of the Migration Act.

109    Given the conclusion above, the primary judge ought to have found that the Tribunal should have warned the appellant that he was entitled to refuse to answer Q16.

Waiver

110    The primary judge found that it was the appellant “who introduced the subject of his migration agent’s involvement in the preparation of his visa application”, “voluntarily and in a manner that was not directly responsive to the Tribunal’s question”, and that, “By doing so, the applicant put the contents of his discussions with his migration agent in the course of preparing the visa application in issue before the Tribunal” (Reasons [79]). The primary judge held that, in the circumstances, the appellant’s conduct was inconsistent with the maintenance of legal professional privilege and the privilege was therefore waived by implication (Reason [80]).

111    Contrary to the above finding, it is apparent from the transcript set out above that it was the Tribunal that introduced the subject of the preparation of the application by the appellant’s migration agent: “Okay, all right. So, with that application that was written I see that you had the assistance of a migration agent. Is that right?”

112    The following exchange then took place:

Q. All right. And in the application you signed that it was true and correct?

A. INTERPRETER: Because I signed it, but I was told that they will ask for more information which they never asked me later or never informed me, but there’s more information.

113    The appellant submits that the primary judge ought not to have found that this statement was capable of giving rise to waiver. The respondent contends that the appellant put forward the communications with Mr Chaudhry in explanation for why his visa application did not present a complete account of his claims “in order to ‘take advantage of the effect of the advice’”.

114    There is little doubt that the appellant voluntarily disclosed communications with Mr Chaudhry that related to matters concerned with the detail that was put in the visa application and the timing of whether further details may or may not have been required. As has been explained above, those matters were not the subject of a legitimate claim for legal professional privilege. The question is whether by that exchange, the appellant waived his privilege in relation to Q16, which asked about the instructions he had given to Mr Chaudhry about his claims in their entirety. In our view, the answer given above cannot be said to be an imputed waiver of the appellant’s legal professional privilege.

115    Whether in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of the advice will depend upon the circumstances of the case and involves matters of fact and degree: Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 per Gleeson CJ, Gummow, Heydon and Kiefel JJ at [49]. As was said in Mann v Carnell, at [29], it is considerations of fairness which inform the court’s view about an inconsistency which may be seen between the conduct of the party and the maintenance of confidentiality, though “not some overriding principle of fairness operating at large”.

116    In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303, the High Court said, per French CJ, Kiefel, Bell, Gageler and Keane JJ at [30]:

According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied…The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

117    By opening up communications about non-privileged matters, the appellant cannot be said to have been acting in a manner inconsistent with his right over matters which are legitimately the subject of a claim for legal professional privilege.

118    The fact that privilege was not waived does not, however, assist the appellant unless he can establish jurisdictional error on the part of the Tribunal (SZHWY at [61]).

Materiality

119    The primary judge held that, in circumstances where the Tribunal was providing the appellant with an opportunity to explain a concern expressed by the Tribunal as to the failure to include all his claims in his Protection Visa application, any failure by the Tribunal to warn the appellant that he could claim privilege did not deprive the appellant of a favourable outcome and thus was not material (Reasons [81]).

120    The appellant submits that the Tribunal’s adverse credit finding against the appellant was based on three distinct matters: his failure to raise the claims in his application; his delay in making the application; and his return trips to India. As was submitted by the appellant, central to the Tribunal’s adverse credit finding was the appellant’s failure to raise the claims about past harm in his application.

121    It is appropriate to note that since April of 2015, s 423A of the Migration Act has required the Tribunal to draw an adverse inference in relation to the credibility of a claim that is raised by an applicant for a protection visa that was not raised in the application before the primary decision maker unless the Tribunal is satisfied that the applicant has a reasonable explanation as to why the claim was not raised before the primary decision was made. This section was inserted into the Migration Act by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) and entered into force on 18 April 2015 (s 2(1)) but only applied to applications for protection visas made on or after 14 April 2015 (s 15(4)). As the appellant’s application was made on 22 December 2014, this section is of no application. However, although there was no requirement that the Tribunal draw an adverse inference on the basis of the additional claims that were made subsequent to the decision of the Delegate, the Tribunal was entitled to do so should such an inference be reasonably open.

122    The adverse credit finding was in the following terms (AAT Reasons [95]):

The Tribunal is satisfied that the applicant has attempted to shift the blame to his previous migration agent in completing the written application and suggesting problems with the delegate interview to account for the problems that the Tribunal has with the applicant’s evidence, but that is not the case. The Tribunal is satisfied that the deficiencies in the applicant’s evidence are due to the fact that his claims are a fabrication.

123    The relevant principles relating to materiality were considered recently by the Full Court in the context of a failure to consider a matter in the context of a decision not to exercise the power conferred by s 501CA(4). In PQSM v Minister for Home Affairs [2020] FCAFC 125, Banks-Smith and Jackson JJ (Mortimer J dissenting) considered the recent High Court decisions Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. Their Honours summarised the principle to be applied in the following terms at [139]:

It is sometimes said that the reasons of the majority in SZMTA represent no departure from Hossain. To the extent that this means that Hossain and SZMTA are consistent with each other, that is correct. But in SZMTA it was necessary to say where the threshold for materiality lay, and there is no warrant in our view to disregard the repeated statements by the majority to the effect that an error will be material, and so jurisdictional, only if there could ‘realistically’ have been a different decision if the error had not been made. It is open to debate whether that is, in truth, a departure from the standard of materiality applied in Hossain, or even a departure from Peko-Wallsend or other previous High Court decisions that apply the concept of materiality or an analogue of that concept. But in our respectful view the debate is an arid one: the majority in SZMTA has expressed the threshold in clear terms.

124    As the Full Court said recently in XFCS v Minister for Home Affairs [2020] FCAFC 140 at [46]:

Where materiality is in issue, it is a question of fact whether there could realistically have been a different decision. “[I]t is a question the court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review”: PQSM at [151]. It follows that, on appeal, an appellant who challenges a finding that a matter that would otherwise be jurisdictional in character was not material must identify factual error by the primary judge.

125    The onus of proof is on the appellant: SZMTA at [46]. The appellant submits that had the Tribunal properly exercised its power and not fallen into jurisdictional error, it either would not have asked the impugned questions at all, or would not have done so without first asking the appellant whether he wanted to obtain legal advice before answering the question or whether he was aware of his right to claim privilege. The appellant submits that had the questions not been asked at all, different credit findings might have been made. Alternatively, if he had been appropriately warned, the appellant may have sought legal advice and identified that his former migration agent was a necessary witness.

126    The respondent submits that, in circumstances where the appellant sought to deploy the communications with Mr Chaudhry to his advantage before the Tribunal, the most likely inference is that “he would have done nothing differently” had a warning been issued.

127    As summarised above, the Tribunal made adverse credibility findings against the appellant on three bases: the additional claims, the delay in filing the protection application and the appellant’s trips to India.

128    It is likely that the appellant’s answer to Q16, that “I did tell [Mr Chaudhry] everything, but they, they said at this stage you just submit a summary of the event and we’ll give the details at a later date” informed, in part, the Tribunal’s view that the appellant had sought to shift the blame for the omission of significant claims (AAT Tribunal [95]). However, that finding is at the conclusion of the Tribunal’s assessment of the appellant’s credibility in relation to the additional claims. It is apparent the reasoning of the Tribunal in respect to that assessment is based on the seriousness of those claims by comparison with those in the original application, and to the Delegate. It is also apparent that it includes reasoning based on his evidence in the Tribunal unrelated to the answer to Q16 (or any of the impugned questions). That reasoning applies irrespective of and unaffected by the answer given to Q16 (or any of the impugned questions).

129    The Tribunal stated (AAT Reasons [87]-[95]):

87.    The Tribunal asked the applicant why he did not tell the delegate his story. The applicant told the Tribunal that he just answered the questions but did not give the delegate full details. When asked why the applicant did not do so, the applicant told the Tribunal that so many things had happened and he did not give details of the events. When asked why the applicant did not do this, the applicant told the Tribunal that at the time he was nervous and he was trying to be brief when asking questions. He told the Tribunal that he was under the impression that he would submit more details after the interview.

88.    The Tribunal asked whether the applicant raised claims with the delegate after he was given a break to confer with the migration agent. The applicant said he did. The applicant told the Tribunal that the migration agent advised him through the interpreter, but because his original migration agent (the person assisting to complete the written protection visa) was different to the one he had in the interview, there was some confusion. The applicant told the Tribunal that there was a discussion about Sikhs having problems in India but that it was not mentioned in the correct way as it should have been.

89.    The applicant told the Tribunal about some of the difficulty he experienced in Thailand. He told the Tribunal that he had been locked in a showroom with a friend named [friend’s name] after the applicant had gone to customers who had been making partial payments for goods but had stopped doing so. He was told that if he was asking for money that was owed he would be arrested. He told the Tribunal that he was locked in the showroom for a short time (about 10 to 15 minutes) while those customers were ringing around to try and get the applicant and his friend arrested. The applicant was pushed, made to sit down and was told that his captors “would fix you”. The applicant told the Tribunal that he could not escape because the door was further away and had been locked. The applicant told the Tribunal that he was very scared. The applicant told the Tribunal that by chance, police arrived and he and his friend were freed as a result of that attendance, because police were there due to the police’s own problems with the customers. The Tribunal asked the applicant whether he had told the police what had happened and he said he did not. When asked why, the applicant said that the police did not ask him anything. The police told the applicant and his friend to go out because the police were going to lock the showroom. The police assumed that the applicant and his friend were just ordinary customers.

90.    The Tribunal asked the applicant whether he had previously been detained by Indian authorities and he said that had. The applicant told the Tribunal that he had been detained many times, but he had been locked up for three days and two nights on three occasions and was tortured. He told the Tribunal that if the police could not find him at home, they used to come after his other family members, and on one occasion tortured his brother to find out the applicant’s whereabouts. The applicant told the Tribunal that there were no outstanding cases against him in India, but he was worried that the authorities in India would come and torture him again with false allegations.

91.    The applicant told the Tribunal that in India, not only had he been arrested, but so had his customers who had come to his shop for measurements. He told the Tribunal that since being in Thailand, police continued to attend his family home in India. He was made aware of this from speaking with his family. The Tribunal asked how often the police attended the family home in India between 2001 and 2014 when the applicant was living in Thailand. The applicant told the Tribunal that he did not know exactly. His family used to tell him when the police attended, but it was at least twice a year. The applicant told the Tribunal that recently a friend of his who was with his brother in India let his brother know that the police were still looking for the applicant, and asked the friend to let police know when the applicant returns to India.

92.    The applicant’s oral explanations to the Tribunal about his failure to provide some meaningful detail of his claims in his written protection visa application concerning his past claimed harm in India are not persuasive. The Tribunal does not accept that the applicant, who availed himself of the migration agent to complete the form, had three meetings in the preparation of his written protection visa application, would not have provided this information in his written application. The Tribunal does not accept that the applicant’s previous migration agent would act in such a way as to disadvantage the applicant’s protection visa claim, because it would inevitably result in concern being raised about the credibility of a late claim being raised by the applicant. The applicant’s written protection visa application makes no mention of the now claimed occurrences in India, claims that he was being targeted because of his Sikh religion, or anything other than a claim that he had had difficulty in his business dealings with customers who did not come good on his payments for the applicant’s services, and that he started receiving threats just before travelling to Australia from Thailand. He was told that they would not leave him alone in India or Thailand, [and] that he had threats to his life in India and Thailand.

93.    Further, the fact that the applicant, who according to the evidence he gave to the Tribunal, had been falsely imprisoned in a showroom in Thailand by these creditors, yet no mention of that is contained in his written protection application is of great concern to the Tribunal. The Tribunal finds it incredulous that that this incident would not be mentioned, in favour of mentioning ‘threatening calls and messages’ that the applicant received following arrangements for his trip to Australia, especially in light of the applicant telling the Tribunal that he was very scared during his 10 to 15 minute false imprisonment by the creditors.

94.    The applicant’s explanation for failing to raise in his written protection visa application this incident in the showroom is not persuasive, telling [t]he Tribunal at the time he was not scared, despite earlier telling the Tribunal he was, and that the threats and messages had been ignored by him, and only concerned him when he found out there were connection between his customers in Thailand to people back in India he became scared. In the Tribunal’s view, if the connection to individuals’ (sic) in India was the aspect which made the threats to the applicant scared, that is even more reason to expect that the applicant would have raised his claims about past harm in India in his written application form.

95.    When considering that applicant’s claims about past harm, the Tribunal’s view is that the applicant invented those claims for the purpose of a protection visa. He provided a compact narrative in his written application for protection, which in essence narrowed his claims to a business dispute, and after being unsuccessful at the delegate stage, has then fabricated an entire backstory for his time in India, and greatly expanded on his claims for his time in Thailand.

130    Assuming, contrary to the conclusions reached above about whether the impugned questions could properly have been the subject of a claim for legal professional privilege, if Q16 had not been asked, or if none of Q4, Q10, Q15 or Q16 had been asked, the adverse credit finding by the Tribunal was, in any event, a legitimate inference that was open to the Tribunal.

131    If those questions had not been asked the Tribunal was still considering a situation where the appellant made additional claims of substance in the Tribunal in a context where they had not been included in the written application for a Protection Visa, even in the most basic summary form, nor raised with the Delegate, and in a context where the appellant had raised a different additional matter before the Delegate which was not in his written application. This was also in a context where the appellant was assisted by a migration agent (who was a lawyer). Given those circumstances and the content of the additional claims, absent a reasonable explanation for the delay in raising these additional claims, an adverse inference against the appellant was capable of being drawn, and was the most probable conclusion.

132    That said, the appellant’s failure to raise the claims in his written application for a Protection Visa was the basis of only one of three matters on which the Tribunal made adverse credit findings. Any question which might have been the subject of legal professional privilege involved no inquiry as to the reasons for the appellant’s delay in lodging his Protection Visa application some 9 months after his arrival in Australia, nor did they inquire into the reasons for the appellant’s 10 trips to India whilst he was still living in Thailand, despite his fear of persecution in India.

133    In relation to the appellant’s delay in lodging his application the Tribunal noted that the appellant had claimed in his written application for a Protection Visa that he had received threatening phone calls and messages just before he left Thailand. As noted above, the Tribunal found that it “cannot accept that the applicant would decide to lodge a claim for protection in Australia some 9 months after arrival, when he was unlawfully in Australia, if his claims were genuine. His evidence about the delay was vague and unconvincing” (AAT Reasons [100]).

134    In relation to his several return trips to India, the Tribunal noted that in a submission filed with the Tribunal prior to the hearing, the appellant stated that he returned to India for one week in 2011 to marry his wife. The Tribunal formed the view that the appellant:

deliberately omitted [this travel] because it would have raised concerns that the applicant did not actually fear returning to India, and would undermine the credibility of the applicant’s claims. The Tribunal does not accept that the applicant would return to India 10 times (and by implication, return to Thailand where he also allegedly fears harm) if his claims about past harm and concern for future harm, were true. (AAT Reasons [104]).

135    It is difficult to see that there could realistically have been a different decision by the Tribunal given its findings in relation to the issues of delay and the return trips to India. Those findings were not dependent upon the adverse finding of credit in relation to the detail put in the original application. Indeed, the finding in relation to the delay in the application was based squarely on the claims made in the original application. Similarly, the adverse finding in relation to the return trips to India was based on the omissions made in the original application in the context of his claims in that application: “I had threats to my life both, in India as well as Thailand. I fear for my life if I return to Thailand or India”.

136    As to the appellant’s submission that, if the questions had been asked and a warning given, the appellant may have sought legal advice and identified that his former migration agent may have been called as a witness, there was no evidence before the FCC as to the appellant’s understanding, or as to what he would have done had he been made aware of his right, if any, to claim legal professional privilege. This suggests that the failure by the Tribunal to give a warning made no difference to how the appellant would have acted. Moreover, as the respondent contended, the appellant sought to rely on his communications with Mr Chaudhry, to his advantage. This is in the context where the appellant could have, but did not, call his lawyer as a witness in the Tribunal to support his evidence. The significance of an explanation for the additional claims was evident, as reflected by the appellant volunteering one when asked about the accuracy of the original application. The relevance of evidence from his lawyer was readily apparent regardless of the questions or an absence of a warning as to legal professional privilege.

137    Any such evidence would not have cured the deficiencies in relation to the appellant’s delay in applying for a Protection Visa, nor his return visits to India (via Thailand) despite his alleged fear of persecution in those two countries. The required threshold for materiality has not been met: SZMTA, per Bell, Gageler and Keane JJ at [45].

138    The primary judge was correct to conclude that the failure by the Tribunal to advise the appellant that he could claim legal professional privilege did not deprive him of a favourable outcome and so was not material. There was no jurisdictional error on the part of the Tribunal.

Disposition

139    The appeal should be dismissed with costs.

Associate:

Dated: 29 October 2020