FEDERAL COURT OF AUSTRALIA

MIGRATION - Judicial Review - whether, in circumstances where the Immigration Review Tribunal misunderstood the reg 1.6(1)(a) (Migration (1993) Regulations) time period requirements for de facto relationships, but this was irrelevant to its decision, the Tribunal, under s 476(1)(e) of the Migration Act 1958, made an error of law by incorrectly interpreting the applicable law - whether, under s 476(1)(a), the Tribunal failed to observe procedures required by the Act - whether the Tribunal failed to act according to the substantial justice and the merits of the case as required by s 353(2) - whether the Tribunal should have put to the applicant information of which it became aware which may have been relevant to the applicant’s case or, if for public interest reasons it could not put such information to the applicant, it should have had the information before it all.

PRACTICE & PROCEDURE - notice to produce - whether considerations relating to the administration of justice override the public interest in maintaining the confidentiality of particular documents.

Migration Act 1958 - ss 476(1)(a), s 476(1)(e), s 476(2)(a) and s 353(2)(b).

Migration (1993) Regulations - reg 820.721(2), reg 1.3, reg 1.6.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Kioa v West (1985) 159 CLR 550

Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 92 ALR 93

Chu Sing Wun v Minister for Immigration, Local Government & Ethnic Affairs (1993)
118 ALR 345

Moges Eshetu v Minister for Immigration & Multicultural Affairs, Full Court, 10 July 1997, unreported

Commonwealth v Northern Land Council (1993) 176 CLR 604

D v National Society for the Prevention of Cruelty to Children [1978] AC 171

Zarro v Australian Securities Commission (1992) 36 FCR 40

JOHN KENNETH GILSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 278 of 1996

CORAM:       Lehane J

PLACE:          Sydney

DATE:            21 July 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.       The decision of the Immigration Review Tribunal made on 6 March 1996 is set aside.

2.       The decision is remitted to the Immigration Review Tribunal for reconsideration in accordance with law.

3.       That reconsideration should be undertaken by that Tribunal constituted by a member or members other than those who made the decision of 6 March 1996.

4.       The respondent is to pay the applicant’s costs.

REASONS FOR JUDGMENT

The applicant (Mr Gilson) seeks review, under s 476 of the Migration Act 1958 (the Act), of a decision of the Immigration Review Tribunal (the Tribunal) by which it affirmed a decision not to grant Mr Gilson a Class 820 (extended eligibility (spouse) entry permit (after entry)).

Procedural History

Mr Gilson is a citizen of the United Kingdom.  He arrived in Australia in 1991.  In April 1994 he held an extended eligibility temporary entry permit, valid until 2 May 1994.  On 13 April 1994 he lodged the application now in question.  It is common ground that the criteria which Mr Gilson was required to satisfy, at the time of the application were those set out in the Migration (1993) Regulations as follows:

            820.721(2)  An applicant meets the requirements of this subclause if:

(a)     the applicant is the spouse of an Australian citizen or an Australian permanent resident; and

(b)     the marital relationship between the applicant and the Australian citizen or Australian permanent resident... is both genuine and continuing; and

(c)     the applicant is nominated by that Australian citizen or Australian permanent resident; ....

Mr Gilson claimed to be the spouse of an Australian citizen, Ms Simmone Mackinnon.  Ms Mackinnon is an Australian citizen and she nominated Mr Gilson.  Mr Gilson claimed that the marital relationship between them was (at the time of the application) both genuine and continuing.

Mr Gilson and Ms Mackinnon were not married at the time of the application and have not married since then.  Regulation 1.3, however, defines “spouse” to include “a de facto spouse”, and that expression is defined in Regulation 1.6 as follows:

            1.6  (1) For a person to qualify as the de facto spouse of another person, those persons must, at the time the relevant application is made:

(a)   be living together as spouses in a genuine domestic relationship that has continued for:

(i)    a period of 6 months; or

(ii)   a lesser period specified under subregulation (2);

immediately preceding the application; and

(b)   not be legally married to each other; and

(c)   be of opposite sexes; and

(d)   have both reached:

(i)    the age of 16 years, if neither of them has an Australian domicile; or

(ii)   the age of 18 years, in any other case.

          (2) On written application, the Minister may specify that a lesser period than 6 months is to apply under paragraph (1)(a) for the purposes of a particular application, if the Minister is satisfied that:

(a)   there are exceptional circumstances affecting the persons to whom the particular application relates; and

(b)   there are compelling reasons for specifying that lesser period.

On 9 August 1994 Mr Gilson’s application was refused.  He applied for internal review and on 7 June 1995 the Migration Internal Review Office affirmed the decision.  Mr Gilson applied for review by the Tribunal and, as I have mentioned, once again the decision to refuse his entry permit application was affirmed.  The ground of the Tribunal’s decision was, as the ground of the initial decision and the decision on internal review had been, that Mr Gilson did not meet the statutory definition of “de facto spouse”.

Facts

The application now in question was not the first that Mr Gilson had made.  The Tribunal had before it material relating to an application for an entry permit lodged by Mr Gilson on
2 March 1992 on the basis of a claim that he was the de facto spouse of an Australian citizen, Ms Gabrielle Navin.  That material indicated - and there appears to be no dispute about it - that on 21 February 1994, Mr Gilson and Ms Navin attended an interview with officers of the Department during which they said that they continued to have a genuine de facto relationship.  Both at that meeting and in telephone conversations on 15 and 28 March 1994, Mr Gilson agreed to provide further documentary information; none, however, was received.  The application was withdrawn by a letter from Mr Gilson, dated 28 April 1994, received by the Department on 3 May 1994.

It will be recalled that Mr Gilson’s application, based on his relationship with Ms Mackinnon, had been lodged on 13 April 1994.  Mr Gilson lodged, with the application, several letters, fax messages, postmarked envelopes and telephone accounts covering a period which appears to have extended from July 1993 to April 1994.  Ms Mackinnon, in a letter to the Tribunal dated 10 August 1995, said that she and Mr Gilson had “been together since April 1993” and “had been living together (to the best of our abilities) as man and wife”.  The phrase “to the best of our abilities” refers to the fact that Ms Mackinnon is a dancer who performed in the musical “Cats”.  Between July 1993 and May 1994, that required her absence from Sydney (where Mr Gilson lives) for lengthy periods: “Cats” was performed during that period in Melbourne and overseas.  Ms Mackinnon gave oral evidence to the Tribunal, in substance confirming what she had said in the letter; she said also that in mid 1993 Mr Gilson had asked her to marry him and that she had agreed but that there was “no way” she could get married during the performances of “Cats” for which she was engaged.  In an interview with the Department on 16 May 1994 and in a letter to the Department dated 26 May 1994, Mr Gilson made statements consistent with Ms Mackinnon’s evidence.  The letters between Mr Gilson and Ms Mackinnon, before the Tribunal, are evidence of a relationship that existed during 1993; the Tribunal also had before it evidence of people who knew Mr Gilson and Ms Mackinnon testifying to what they saw as the strength of the relationship.

There was also, however, the fact of Mr Gilson’s earlier application, actively pursued until shortly before, and not withdrawn until about a month after, the present application was lodged.  Additionally, Mr Gilson, in oral evidence to the Tribunal, made statements both as to the state of his relationship with Ms Navin in the early part of 1994 - that in February they were “going through problems”, had been living apart “since about January” and had only stopped seeing each other in March - which were somewhat difficult to reconcile with his evidence about the state, at that time, of his relationship with Ms Mackinnon.  In the same context, Mr Gilson gave evidence that he had met Ms Mackinnon only in mid-March 1994.

The Tribunal’s Findings and Conclusions

It is appropriate, I think, to set out the findings and conclusions of the Tribunal in its own words:

          The Tribunal found that the evidence given by John Kenneth Gilson, particularly in relation to critical matters regarding the nature and timing of his relationships with Gabrielle Navin and Simmone Mackinnon, was inconsistent and lacking in credibility.  It is particularly striking that the evidence he has given at different times has been that which has been consistent with the application under consideration at the given time, but inconsistent with his own statements at other times and also inconsistent with statements by other witnesses.  In giving oral evidence to the Tribunal he attempted to reconcile previous inconsistencies by indicating that his relationship with Simmone Mackinnon had developed from April 1994, subsequent to his interview (together with Gabrielle Navin) with the Department officer in February 1994.  However, later in oral evidence, he referred to Simmone Mackinnon staying with him in March 1994 during a break in her overseas tour and long after the development of the relationship with her the previous year.  The documentary evidence of correspondence between the parties, submitted with the Application for Permanent Residence lodged on 13 April 1994, covered dates from July 1993 to April 1994.

          From all the evidence before it, the Tribunal accepts that John Kenneth Gilson and Simmone Jade Mackinnon met in or around the middle of March 1993 and that by the beginning of April that year they commenced a romantic relationship.  Although the fax message from the Buccaneer Motor Inn referring to a booking in the name of Gilson on 10 May 1993 does not precisely correspond to the parties’ recollections as given in their oral evidence, the Tribunal accepts that by approximately that date their relationship had developed to the point of a sexual relationship.  The Tribunal notes that Simmone Mackinnon kept her own apartment until departing for Melbourne on 19 July 1993 but accepts that from May to 19 July 1993 they spent much of their time together.  The Tribunal also accepts that prior to her departure for Melbourne in July 1993 and subsequently, John Gilson proposed to Simmone Mackinnon that they marry.  However, the Tribunal is not satisfied that such a proposal was unconditionally accepted or carried through by the time of the application for the entry permit.

          The Tribunal accepts that Simmone Mackinnon and John Gilson may have spent at most nine weeks together between May and July 1993, up to two weeks together during the Melbourne tour from July to September 1993, up to six weeks living together in Sydney in late 1993 prior to the overseas tour and four days together in March 1994.  A generous estimate of the total at the date of application is four and a half months.  At the date of lodgement of the application for this entry permit on 13 April 1994 they had been apart for the greater proportion of their time since the beginning of the relationship.  The Tribunal accepts that the circumstances of Simmone Mackinnon’s career as a dancer and her contracts to tour with ‘Cats’ placed unusual limitations upon the parties.  Indeed these may even be described as ‘exceptional circumstances’ in terms of the requirement in regulation 1.6(2)(a).  However the Tribunal is not satisfied that there exists any ‘compelling reasons’ as required in regulation 1.6(2)(b), for specifying a period of less than six months preceding the application for the existence of a genuine domestic relationship.

          The Tribunal has not based its consideration of the nature or quality of the relationship purely on the amount of time spent in one another’s company.  The Tribunal has carefully considered the large volume of documentary evidence of contact in writing and by telephone, between John Gilson and Simmone Mackinnon during her period on tour.  The Tribunal is not satisfied that the relationship between the parties at the time of the application for the entry permit had gone beyond a romantic and sexual involvement to become a mutual commitment to a shared life as husband and wife to the exclusion of others.  The Tribunal is not satisfied that John Kenneth Gilson has been genuine in all of his statements about his marital relationships and intentions.  The Tribunal finds that his statements concerning a marital relationship with Simmone Mackinnon have solely been motivated by a desire to obtain permanent residence in Australia.

          For these reasons, the Tribunal concludes that the Applicant does not qualify as the de facto (or de jure) spouse of an Australian citizen or permanent resident.  Therefore he does not meet the requirements of part 820 of the Migration (1993) Regulations.

Grounds on which review is sought

Mr Gilson seeks orders setting aside the decision of the Tribunal and remitting the matter to the Tribunal for further consideration.  Those orders are sought on the grounds of review available under s 476(1)(a) and (e) of the Act: that procedures required by the Act to be observed in connection with the making of the decision were not observed and that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or its incorrect application to the facts as found by the Tribunal.

The further amended application gives particulars of two ways in which the Tribunal is said to have failed to observe required procedures.  One is that it failed to act according to substantial justice and the merits of the case (as required by s 353(2)(b) of the Act) by failing to provide Mr Gilson with access to certain material contained on the departmental file to which the Tribunal is said to have had regard and which is said to have been adverse to Mr Gilson’s interests.  Secondly, the Tribunal is said to have failed to set out its findings on material questions of fact and to refer to the evidence or other material on which those findings were based, as required by s 368(1): particularly, the Tribunal is said to have failed to set out the relevant findings or evidence in respect of its statement that it was

          not satisfied that the relationship between the parties at the time of the application for the entry permit had gone beyond a romantic and sexual involvement to become a mutual commitment to a shared life as husband and wife to the exclusion of all others.

Similarly, the Mr Gilson claims that the Tribunal failed to refer to evidence supporting its findings that it was not satisfied that Mr Gilson had been genuine in all of his statements about his marital relationship and intentions and that Mr Gilson’s statements concerning a marital relationship with Ms Mackinnon had been solely motivated by a desire to obtain permanent residence in Australia.  A further particular given of failure to comply with s 368(1) - that the Tribunal failed to give reasons for the apparent rejection of the evidence of Ms Mackinnon - was abandoned.

“De facto spouse” - second ground (error of law)

Mr Gilson’s argument was simple.  The definition in reg 1.6 requires the decision maker to deal successively with two questions.  The first of the questions is, were the persons concerned, at the time the application for a permit was made, “living together as spouses in a genuine domestic relationship?”  The second, which arises if the first is answered “yes”, is, has that relationship continued for the period of six months (or lesser period specified under subreg (2)) immediately preceding the application?  The second question, particularly, requires the decision maker to consider the situation of the parties during a continuous period of time (usually six months) immediately preceding the making of the application.

Thus far, the Minister did not dispute the substance of Mr Gilson’s argument, and it seems clearly enough to be correct.  The error, then, which the Tribunal is said to have made is that, rather than consider a continuous “real time” period immediately preceding the making of the application, the Tribunal, in its findings and conclusions which I have quoted, added together a series of discontinuous periods during which the parties lived together, the first of which commenced approximately 11 months before the application was made.  Additionally, the Tribunal apparently regarded it as relevant to consider whether the cause of Ms Mackinnon’s absences might be regarded as “compelling reasons” giving rise to “exceptional circumstances” justifying the specification of a lesser period than six months (the relevant lesser period being, apparently, the sum of the discontinuous periods).

It is, with respect, not entirely easy to understand what the Tribunal had in mind in that passage in its reasons; I think counsel for Mr Gilson was right in arguing that the Tribunal proceeded on a misunderstanding of the second question posed by the definition of de facto spouse.  The answer submitted by the Minister, however, was that, if the Tribunal had indeed misapprehended the second question posed by the definition, that did not matter: it correctly answered the first, unfavourably to Mr Gilson, so that the second did not arise.  Counsel for the Minister pointed to the explicit statement, towards the end of the Tribunal’s reasons, that:

          The Tribunal is not satisfied that the relationship between the parties at the time of the application for the entry permit had gone beyond a romantic and sexual involvement to become a mutual commitment to a shared life as husband and wife to the exclusion of others.

Counsel for the Minister referred also to references by the Tribunal, in the earlier part of its reasons, to authority as to the meaning of a “genuine” marriage and submitted, in effect, that the Tribunal’s references to periods during which Mr Gilson and Ms Mackinnon had lived together should be taken as bearing on the first question, that is, whether it was established that, at the date of the application, their relationship had “gone beyond a romantic and sexual involvement” to become one of a kind which satisfied the criteria prescribed by the regulations.

It is perfectly true that the Tribunal’s reasons might have been more clearly and more accurately expressed.  There is, however, ample authority warning against “over-zealous judicial review... seeking to discern whether some inadequacy may be gleaned from the way in which.... reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).  In my view the Tribunal clearly perceived what the first question to be answered was, and answered it.  Given the Tribunal’s answer, the second question did not arise.  Thus, in that respect, Mr Gilson has not established that the decision of the Tribunal involved an incorrect interpretation of the applicable law.

Other grounds

The starting point is that there were before the Tribunal some documents to which Mr Gilson did not have access.  Before me, counsel for Mr Gilson sought production of those documents; the Minister declined to produce them on the footing of public interest immunity.  I shall return, later in these reasons, to the question whether the documents may properly be withheld on the ground of public interest immunity.  Meantime, however, the general nature of the documents appears clearly enough from an affidavit of Ms Philippa Margaret Godwin, Assistant Secretary, Protection and Family Residence Branch of the Department, relied on by the Minister in relation to public interest immunity and by Mr Gilson in the substantive proceedings.  Ms Godwin affirms that they comprise “documents containing allegations against the applicant made by an informant or informants and Departmental documents regarding investigations of those allegations”.

Apparently the existence of the documents was made known to Mr Gilson’s advisers during the course of preliminary discovery for the purposes of these review proceedings.  Mr Gilson was not previously aware of their existence; they are not, nor is it apparent that their substance is, explicitly referred to in the reasons given by the Tribunal.

Some refinement is necessary of the proposition that the documents were before the Tribunal or available to it.  According to Ms Godwin’s evidence, some of the documents come from the Department’s file number N92/1546 and the others from the Tribunal’s file.  The Tribunal commenced its summary of the evidence before it as follows:

          In conducting its review, the Tribunal had before it the file number N92/01546 from the Department of Immigration and Ethnic Affairs containing material relating to John Kenneth Gilson.  It also considered the following documents: ...

There are then listed a number of documents, all of which appear to have been documents provided to the Tribunal by Mr Gilson and none of which, obviously are among those which have not been disclosed.  While it is clear that the Tribunal “had before it” some of the documents - those in the departmental file - there is no express statement that the others - those in the Tribunal’s own file - were “before the Tribunal”.  There is, I think, little to be gained from considering further the question whether the Tribunal might have “had before it” the documents in its own file.  It is clear in any event that some documents, falling within the category of documents containing allegations against Mr Gilson made by an informant or informants and departmental documents regarding investigations of those allegations, were before the Tribunal.  The Minister did not concede, however, that the Tribunal took the documents into account: indeed, counsel submitted that the Tribunal’s reasons made it clear that its decision was based upon (and only upon) the particular written and oral evidence discussed in the reasons.  Counsel for Mr Gilson, on the other hand, argued that I should infer that the Tribunal did take the withheld documents into account.  He argued that the statement that the Tribunal “also considered” the listed documents necessarily implied that it had considered the file which the Tribunal “had before it”.  In any event, where a court or tribunal recites material before it, that will usually be taken as a reference to relevant evidence which it has received and which therefore is to be taken into account in reaching its decision.  Counsel for Mr Gilson contended also that, even if it were concluded as a matter of fact that the Tribunal had not taken any account of the withheld documents, the fact that they were “before” the Tribunal and not disclosed required the conclusion that the Tribunal’s procedures had not been such as to ensure substantial justice, so that the decision should in any event be set aside.

It is clear that Mr Gilson’s credit was crucial to the Tribunal’s decision.  Fundamental to its conclusion were its lack of satisfaction “that John Kenneth Gilson has been genuine in all of his statements about his marital relationships and intentions” and its positive finding “that his statements concerning a marital relationship with Simmone Mackinnon have solely been motivated by a desire to obtain permanent residence in Australia”.  It is true, as counsel for the Minister submitted, that there may be a foundation for those findings in the Tribunal’s discussion of the evidence concerning Mr Gilson’s earlier application and the inconsistencies in his evidence about his relationships with Ms Navin and Ms Mackinnon.  It is also the case, however, that the withheld documents, on the evidence of Ms Godwin, deal with allegations “against” Mr Gilson, that is (it may be inferred) information relevant to his credit.

In Kioa v West (1985) 159 CLR 550 Brennan J said, at 628, 629:

          A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise...  The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.  Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made....

          Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision and opportunity to deal with the information.  He will be neither consoled nor assured to be told that the prejudicial information was left out of account.

It will be noted that his Honourexpressly left room for an exception where a problem of confidentiality arises.  It does not follow, however, that where there is a problem of confidentiality - for example, circumstances where information is protected by reason of public interest immunity - information may be received by the decision-maker adverse to a person whose interests will be affected by the decision and not, in any way, disclosed to that person.  That that is so is evident from the decision of the Full Court in Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 92 ALR 93, especially at 123, 124 (Gummow J); see also Chu Sing Wun v Minister for Immigration, Local Government & Ethnic Affairs (1993) 118 ALR 345 at 349-353.  It is true that in Kurtovic Counsel for the Minister accepted that the requirement to maintain confidentiality might be met by an order for disclosure only to the legal representatives of the applicant and in Chu Beaumont J held that the requirements of procedural fairness had been met by sufficient disclosure to the applicant of the substance of matters alleged against him in confidential material; here, on the other hand, counsel for the Minister suggested that neither disclosure of the documents to legal representatives nor disclosure of the substance of the allegations in them would be appropriate, because neither course would adequately protect the identity of the Department’s informers.  Presumably, in the case of disclosure of the documents to Mr Gilson’s legal advisers, that could only be because they would not be able adequately to obtain instructions on the substance without thereby risking disclosure of the informers’ identity.

It is not easy to see a prioriwhy that should necessarily be so, nor, of course, was it a proposition which counsel for Mr Gilson could satisfactorily deal with in the absence of knowledge, on his part, of the content of the documents.  In any event, however, I do not think

Kioa v West, Kurtovic or Chu offers any encouragement to a proposition that if, in circumstances such as the present, information is available which is adverse to an applicant on a crucial issue, but both the documents containing the information and its substance are protected entirely from disclosure by public interest immunity, the information may nevertheless be made available to the decision-maker and taken into account against the interests of the applicant.  In my view all three decisions are authority strongly to the contrary of such a proposition.  If the material was to be before the Tribunal - that is, if the Tribunal was to be made aware of its content - then the Kioa principle required that it be put to Mr Gilson.  If in such circumstances information is of so sensitive a kind that it, or its substance, cannot by any means be put to an applicant, then it should not be before the Tribunal at all.

What I have said to this point assumes that a failure such as I have identified provides a ground of judicial review under the Act.  A failure of that kind is a breach of the rules of natural justice, and s 476(2)(a) provides that a breach of the rules of natural justice which occurred in connection with the making of a decision is not a ground on which an application for review may be made under s 476(1).  The present is, of course, such an application.  However, one of the grounds on which an application may be made under s 476(1) is:

       (a)   that procedures that were required by this Act or the regulations to                     be observed in connection with the making of the decision were not                 observed.

Section 353(2) provides:

the Tribunal, in reviewing a decision:...

       (b) shall act according to substantial justice and the merits of the case.

The question, then, is whether, in addition to being a breach of the rules of natural justice, the failure to put the informers’ allegations to Mr Gilson amounted as well to a failure to act accordingly to substantial justice and, if so, whether that failure is to be characterised as a non-observance of procedures required by the Act to be observed in connection with the making of the Tribunal’s decision.  In my view, the answer “yes” to each part of that question is required by the decision of the Full Court in Moges Eshetu v Minister for Immigration and Multicultural Affairs 10 July 1997 unreported.  The rule in question may be described as a rule of natural justice, but it may equally be described as a rule of procedural fairness.  Both descriptions are used in the authorities to which I have referred.  The requirement is one as to the procedures to be adopted for the purpose of ensuring substantial justice: see Eshetu per Davies J at 6 and per Burchett J at 8, 9.  Counsel for the Minister formally submitted that the decision in Eshetu was wrong and submitted also (deriving support from the dissenting judgment of Whitlam J) that the observations of Davies and Burchett JJ on this matter were not necessary to their decision; I was therefore free to act on the view expressed by Whitlam J. and on the authorities on which his Honour, in turn, relied; and, being thus free, counsel invited me to prefer and act on the view expressed by Whitlam J.

In my view it would be wrong to accept that invitation.  Obiter or not (and I need not express a view about that) the observations of Davies and Burchett JJ represent the considered views of a majority of the Full Court on a matter on which a number of single judges of the Court had expressed a variety of different views.  As Burchett J put it in the opening paragraph of his judgment:

The first task of the Court, in the present appeal, is to attempt to clarify authoritatively the meaning of provisions which have given rise to so much uncertainty.

That, plainly, is what the majority set out to do and it is appropriate that I proceed on the basis that they have done so.

The result is that Mr Gilson succeeds on the first ground of his further amended application.

That being so, it is not necessary to come to a final conclusion as to the other matters relied on, under s 476(1)(a) and (e), relating to an alleged failure to set out findings and refer to evidence.  The argument for Mr Gilson was that there was no clear indication in the Tribunal’s reasons of its reasons for the crucial conclusions about Mr Gilson’s credit.  Counsel for the Minister, on the other hand, referred to preceding passages in the Tribunal’s findings and conclusions, where the Tribunal analysed what it regarded as the inconsistent evidence given by Mr Gilson.  A fair reading of the reasons, counsel submitted, indicates that that inconsistency formed the basis of the Tribunal’s conclusion.  I am inclined to think that the Minister’s argument is right, but in the circumstances it is not necessary to form a final view. 

One further matter should be mentioned.  My decision upon Mr Gilson’s first ground means that the matter will have to be remitted to the Tribunal, and, in the circumstances, to a Tribunal differently constituted.  Section 352(4) of the Act requires the Secretary of the Department to give to the Registrar of the Tribunal each document in the Secretary’s possession or control considered by the Secretary to be relevant to the review of the decision to refuse the entry permit.  No doubt the documents which the Secretary is thus obliged to give to the Registrar include the documents for which public interest immunity is claimed.  If the claim for immunity is maintained, and if some means cannot be found of putting to Mr Gilson the substance of the allegations in the documents, it must follow that they should not be read by the member or members constituting the Tribunal for the purposes of the review.  It is perhaps worth adding that ss 362A and 375A, which were inserted in the Act by the Migration Legislation Amendment Act (No.1) 1995, do not apply to this application for review: see s 5 of that Act.

Public Interest Immunity

At the commencement of the argument, counsel for the Minister suggested that it would be inappropriate for me to read the documents for which public interest immunity was claimed: he referred particularly to Commonwealth v Northern Land Council (1993) 176 CLR 604 at 617.  Counsel for Mr Gilson, on the other hand, submitted that I ought to inspect the documents because unless I did so I could not balance, as the authorities in his submission required, the competing public interests in the protection of the identity of informers and in doing justice in relation to Mr Gilson’s application.  During the course of argument, the position of both parties fluctuated on the question whether I should inspect the documents; at its conclusion both appeared to foresee possible difficulties with either course, but neither positively objected to inspection.  In the circumstances, I have read the documents; but I should record that I had not done so when I wrote the preceding sections of these reasons.

Because I have concluded that in any event the application should succeed and that the matter should be remitted to the Tribunal, to an extent the question of public interest immunity is now academic.  It was put, however, on behalf of Mr Gilson that the Minister was obliged to produce the documents (they were the subject of a notice to produce), the matter was fully argued and it may arise again in the consideration of Mr Gilson’s application for review.  In those circumstances I think I should state my view of the matter.

The description of the documents in Ms Godwin’s affidavit is, in my view, accurate, and I accept that the release of the documents would be likely to reveal the identity of an informant or informants.  In those circumstances there is, in my view, undoubtedly a public interest in maintaining the confidentiality of the documents: that is clearly so in the case of police informers (Cain v Glass (No.2) (1985) 3 NSWLR 230); it seems to be equally so in the case of those giving information, in confidence, to other bodies charged with the enforcement of the law (D v National Society for the Prevention of Cruelty to Children [1978] AC 171; see also Zarro v Australian Securities Commission (1992) 36 FCR 40).  There is also a public interest in the unimpaired administration of justice.  Whether that latter interest prevails, where disclosure of the material which will reveal an informer’s identity, only where disclosure may help to show that an accused person is innocent of an offence (Cain at 247; D v NSPCC at 218) or whether, on the other hand, a less constrained “balancing exercise” is called for (Zarro at 45), it is clear at least that the considerations relating to the administration of justice must be powerful indeed if the policy against revealing an informer’s identity is to be overcome: Zarro at 48, 49, 60, 61.

So far as this application for judicial review is concerned, clearly enough the public interest against disclosure is not overcome.  It is not necessary to the success of Mr Gilson’s claim as to the ground on which he has succeeded, and, if he had not succeeded on that ground, it is not easy to see - irrespective of the precise content of the documents - how disclosure would have assisted him in relation to other grounds.  I say that with the diffidence necessarily arising from the circumstance that, whereas I have seen the documents, counsel for Mr Gilson has not (Alister v The Queen (1983) 154 CLR 404 at 469); the approach I am taking, however, seems to be precisely that which the Full Court sanctioned in Zarro.  My conclusion is, therefore, that the claim of public interest immunity, in relation to the documents identified in Ms Godwin’s affidavit, is made out.

Although it is not strictly relevant, there was discussion before me of whether public interest immunity of the kind in question applies to proceedings in the Tribunal.  In my view the nature of the immunity, and the considerations of policy which give rise to it, clearly indicate that in principle the immunity is one of general application, applicable, particularly, there being no statutory provision to the contrary, for the purpose of a review by the Tribunal.  I was not referred to any authority to the contrary of that proposition and, in support of it, I was referred to Jacobsen v Rogers (1995) 182 CLR 572; see also Suzanne B McNicol Law of Privilege (1992) at 380 ff.

Conclusion

For the reasons I have given, the orders which I shall make are as follows:

1.       The decision of the Immigration Review Tribunal made on 6 March 1996 is set aside.

2.       The decision is remitted to the Immigration Review Tribunal for reconsideration in accordance with law.

3.       That reconsideration should be undertaken by that Tribunal constituted by a member or members other than those who made the decision of 6 March 1996.

4.       The respondent is to pay the applicant’s costs.

Associate:

Dated:              21 July 1997