FEDERAL COURT OF AUSTRALIA

CEF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2078

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.    The appeal be dismissed.

3.    The Appellants pay the First Respondent’s costs as taxed or agreed.

4.    Until further order, a suppression order be made, pursuant to ss 37AF(1)(a), (b)(i) and/or (iv) and 37AG(1)(a) and/or (c) of the Federal Court of Australia Act 1976 (Cth), in relation to the following:

(a)    the document referred to in the s 438(1)(b) certificate issued by a delegate of the First Respondent on 13 October 2014 as an ‘allegation relevant to file number CLF2013/287715’ and annexed to the affidavit of Mia Donald dated 11 August 2017; and

(b)    the following paragraphs of the reasons for judgment of Perram J delivered on 11 December 2019:

(i)    paragraph 16, subparagraphs (a)-(c);

(ii)    paragraph 27, line 7;

(iii)    paragraph 29, line 1 after the word ‘anonymous’ to the end of the paragraph;

(iv)    paragraph 30, second sentence from line 3 to line 5; and

(v)    paragraph 32, sixth sentence from line 7 to line 9.

5.    Order 4 be subject to the following exceptions:

(a)    The suppressed documents, and the contents thereof, may be disclosed only to the court and the legal representatives of the parties for use only in these proceedings.

(b)    For the avoidance of doubt, nothing in subparagraph (a) permits disclosure of the documents, or the contents thereof, to any person other than the parties’ legal representatives.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The First Appellant is an Albanian national and the Second Appellant is a Romanian national. They both entered Australia in October 2013 and applied for protection (class XA) visas in November 2013. Only the First Appellant made actual claims for protection. The Second Appellant made her application for a protection visa as the First Appellant’s dependent.

2    The First Appellant’s claims for protection were based on his contention that his family is the subject of a blood feud in Albania and that if he returns to Albania or Italy there is a risk that the families pursuing the blood feud against his family will harm him. This claim for protection was rejected by a delegate of the First Respondent (‘the Minister’) on the basis that both Appellants were citizens of the European Union (‘EU’) and had the right to enter and reside in any country in the EU. Since this was a decision to refuse the grant of a protection visa it fell within the definition of a ‘Part 7-Reviewable decision’ in s 411(1)(c) of the Migration Act 1958 (Cth) (‘the Act’). Such a decision may be reviewed by the Administrative Appeals Tribunal (‘the Tribunal’) under Pt 7 of the Act: s 412. On or about 14 May 2014 the Appellants filed an application for a review of the delegate’s decision under Pt 7.

3    The Tribunal felt that it needed to make a number of inquiries about the First Appellant’s activities in Europe and these inquiries occasioned some delay in the Tribunal’s process of the review. Indeed, it did not conduct a hearing until 26 September 2014.

4    Very shortly after that hearing, on 1 October 2014, an unidentified person made a confidential disclosure to the Department of Immigration and Border Protection (‘the Department’). This report was logged in the Department’s computer system. The report made a number of allegations about the Appellants. If the Tribunal had been minded to embrace some of these allegations they could have led it to the conclusion that the First Appellant’s account about the blood feud was not true.

5    The Department conveyed the log of the anonymous report of 1 October 2014 to the Tribunal for its information. However, it did so under a certificate dated 13 October 2014 issued pursuant to s 438 of the Act. Section 438 provides:

Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

6    Pertinent aspects of s 438 for present purposes are these: subs (1)(b) is enlivened if information is given to the Minister or the Department ‘in confidence’; by subs (2)(b) the Secretary of the Department may give the Tribunal written advice about the significance of the information; and, by subs (3), the Tribunal may have regard to the material and may disclose it or any portion of it to the applicant for review.

7    The certificate issued by the Minister’s delegate on 13 October 2014 was as follows:

Notification regarding the disclosure of certain information under s 438 of the Migration Act 1958

I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to information provided to DIAC as an allegation relevant to file number CLF2013/287715. This information was given to [the Minister for Immigration and Citizenship/an officer of the Department of Immigration and Citizenship] in confidence.

In my view, this information should not be disclosed to the applicant or the applicant’s representative because information provided in the attached allegation was provided in confidence. As a result this information should not be disclosed to parties before the tribunal without appropriate consideration.

The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958.

Delegate’s name: [name] Position no: [number] Delegate of the Minister for Department of Immigration and Border Protection Delegate of the Secretary of the Department of Immigration and Border Protection

13 October 2014

8    The operation of s 438 may have implications for procedural fairness: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421. The present appeal is concerned with those implications. In conducting a Pt 7 review the Tribunal is obliged by s 424A(1) to give an applicant particulars of any information which it considers would be the reason or part of the reason for affirming the delegate’s decision. It provides:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)    invite the applicant to comment on or respond to it.

9    The object of s 424A(1) is to provide an applicant for review with an entitlement to be heard on matters the Tribunal regards as pertinent to its decision. On 9 July 2015, it wrote a letter to the Appellants providing the particulars contemplated by s 424A(1) (‘the s 424A letter’). The relevant portions of the letter were as follows:

Particulars of the information that would be the reason or part of the reason for affirming the decision under review

…

9.    The Department of Immigration has received an allegation to the effect your claim that you are subject to a blood feud is not true.

10    This paragraph had a footnote which was in the following terms:

The allegation is subject to a certificate issued pursuant to section 438 of the Act, and the disclosure herein is the extent to which the Tribunal thinks it is appropriate to disclose the information.

11    The letter concluded by inviting the Appellants to comment on its contents in writing. Such a written submission was made on 29 July 2015. Relevantly the submission said:

The anonymous allegation made to the [Department] is clearly designed to harm [the First Appellant] and should be given no weight. The [First Appellant] has no idea who would make such an allegation as very few Albanians even know he is in Australia. If the allegation comes from a source overseas that would be of great concern indeed to the [First Appellant].

12    Shortly afterwards the Tribunal affirmed the delegate’s decision. It referred at [79] of its reasons to the fact that it had notified the Appellants that it had received the anonymous information under a s 438 certificate and had invited a submission thereon. It also referred at [80] to the Appellants’ submission about that matter. At [79] it said this:

I have decided upon review of [the First Appellant’s] evidence at the hearing in September of 2014 in response to the various concerns I raised with him, the information now available to me about Mr [X] and the Nationwide Reconciliation Committee upon whom [the First Appellant] placed heavy reliance, and the allegation(s) subsequently received by the Department, that [the First Appellant’s] claims to be at risk of harm in Italy and Albania (and indeed elsewhere in Europe) as a consequence of being the target of a blood feud are not true.

13    There followed after [79] a series of paragraphs in which the Tribunal more fully explained that conclusion. It rejected many of the First Appellant’s claims as implausible. It also noted that the documents relating to the blood feud relied upon by the First Appellant had been produced in Albania by a man who had been filmed by a hidden camera making arrangements to provide false documents and also informing a person of what to say in immigration reviews in Britain. The Tribunal was impressed by the fact that this man was considered by British, Swedish and Canadian immigration authorities to be ‘wholly unreliable’ and to be linked to accusations of corruption and the issuing of false attestation documents. It concluded that the First Appellant’s reliance on documents produced by this man meant that his account of the blood feud was fabricated.

14    It then turned to the significance of the anonymous disclosure at [89] in these terms:

Fourth, albeit not an independent basis for my conclusion, I find the allegation made to the Department tends to confirm conclusions I have now reached for myself. I give the allegation confirmatory weight.

15    The Tribunal then affirmed the delegate’s decision. This decision was dated 23 September 2015. An application for judicial review of that decision was rejected by the Federal Circuit Court of Australia: CEF15 v Minister for Immigration and Border Protection [2018] FCCA 656. The primary judge issued a suppression order under ss 88F and 88G of the Federal Circuit Court of Australia Act 1999 (Cth) in relation to the document, which could then only be disclosed to the parties’ representatives. It is from that Court’s orders that the Appellants now appeal.

16    They submit that the Court below erred in failing to find that the Tribunal reasoned in a legally unreasonable way in not disclosing to them information subject to the certificate that:

(a)    XXX XXX XXX XXX XXX XXX XXX XXX XXX;

(b)    XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX;

(c)    XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX.

17    The Appellants submitted that these three matters were in fact relevant to the issues which arose on the review being conducted by Tribunal because they were relevant to the First Appellant’s credibility. This was because they tended to suggest that the First Appellant’s claim to have fled because of a blood feud was not true (I interpolate here that the Appellants also submitted that some other matters contained in the disclosure were relevant to the review but I did not apprehend that any argument relating to legal unreasonableness was said to rest on those matters). The Appellants submitted that the Tribunal had found at [79] that the Appellant’s claim to have fled because of the blood feud was not true because, inter alia, of ‘the allegations subsequently received by the Department.’

18    The Appellant submitted that the reference to the ‘allegation(s)’ in this paragraph showed that the Tribunal had taken the anonymous disclosure into account. This was consistent with the fact that the Tribunal had written on 9 July 2015 to the Appellants to inform them, inter alia, that it ‘had received an allegation to the effect that your claim that you are subject to a blood feud is not true’ and this was part of the s 424A letter disclosing particulars of information that ‘would be the reason or part of the reason for affirming the decision under review’. The s 424A letter showed that the Tribunal had on 9 July 2015 been contemplating relying on the anonymous disclosure and [79] showed that it had, in fact, done so in its substantive decision.

19    It is important to be clear about what is being challenged and how. The directly impugned decision is the decision of the Tribunal to affirm the delegate’s decision made on 23 September 2015 to refuse the visa applications. This was a decision made under s 430 (which authorises the Tribunal to make a decision on a Pt 7 review). However, the Appellants seek to impugn that decision by vitiating what they allege is the Tribunal’s earlier decision on 9 July 2015 embodied in the s 424A letter not to disclose to the Appellants the contents of the anonymous disclosure. That decision was embodied in the footnote set out above. Contrary to the Appellants’ submissions it was not a decision to not disclose the contents of the anonymous disclosure. Rather, it was a decision—as the footnote shows—to make a limited disclosure.

20    More importantly, this limited disclosure decision was made pursuant to the power in s 438(3)(b). Such a decision is a privative clause decision within the meaning of s 474. The jurisdiction of the Federal Circuit Court therefore extended to hearing a suit to quash the decision so long as that was linked to an application for mandamus or prohibition: s 476(1) (‘the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution’). However, no relief was sought by the Appellants in relation this decision. Consequently, the present challenge is to be understood as a species of collateral challenge, that is to say, the invalidity of the decision of 9 July 2015 is to be seen as afflicting the affirmation of the delegate’s decision on 23 September 2015.

21    No objection was raised to this collateral challenge by the Minister. However, a focus on the decision of 9 July 2015 and, more particularly, on whether it was legally unreasonable directs attention to the fact that the question of whether that exercise of power was legally unreasonable or not is to be answered on that day and cannot logically be affected by what the Tribunal did subsequently. The decision either was legally unreasonable when made or it was not. Its legal validity did not wax and wane with subsequent events. Nevertheless, what the Tribunal subsequently did may, as a matter of evidence, potentially throw some light on what was in its mind when it sent the s 424A letter on 9 July 2015. In that limited sense I accept, as both parties assumed, that what the Tribunal had subsequently done was relevant.

22    It is not necessary to determine whether the three matters the Appellants say should have been disclosed to them were, in the strict sense, relevant to the Tribunal’s review as they submitted. The primary judge thought they were not. I am prepared to assume in the Appellants’ favour (without deciding) that they were relevant but I do not see that this is material to the inquiry at hand. The fact that evidence is relevant to an administrative decision does not mean that the decision maker is obliged to take the evidence into account unless it is also constitutes a mandatory relevant consideration. Where evidence is relevant but not mandatory no error is committed by a decision maker where it does not take the evidence into account. In that regard, it was not suggested in the present case that the three matters relied upon were mandatory relevant considerations.

23    The correct question therefore is not whether the material was relevant but, rather, whether it was in fact used by the Tribunal. If the three matters were taken into account by the Tribunal in its decision of 23 September 2015 then this may tend to prove that when it made its limited disclosure decision of 9 July 2015 it had that use in mind. On the other hand, if it did not take them into account in its decision of 23 September 2015 then this may tend to suggest that it did not have them in mind on 9 July 2015.

24    Read in isolation, I would accept that [79] suggests that the Tribunal took into account the information the subject of the certificate. However, [79] must be read with [89]. That paragraph suggests that the Tribunal did not utilise the information subject to the certificate (which would include the three impugned matters) in reaching its conclusion that the First Appellant’s account of the blood feud was untrue. It had given substantive reasons for arriving at the conclusion—most notably the Appellants’ reliance on documents produced by a man notorious for producing false documents. What it said at [89] suggests instead that it used the information only to confirm a conclusion it had already reached based on other material.

25    Such a statement may be made by a decision maker in two different contexts. The first is in a finely balanced case where the material is used to help the decision maker feel more confident in a conclusion only diffidently reached. The second is where the conclusion has been easily reached and the material is more in the nature of a footnote to the effect that the conclusion is consistent with the information. The former, despite being expressed in terms of confirmation, involves an actual use of the material. The latter, in my opinion, does not. In this case, the use which the Tribunal put the material was of the latter kind. It follows that in its decision of 23 September 2015 the Tribunal did not use the information subject to the certificate. This includes necessarily the three matters the Appellants now rely upon.

26    What does this tell one about the state of mind of the Tribunal on 9 July 2015? The answer, I think, is not very much. Although it is plain that the Tribunal had reached a clearly held negative view about the credibility of the First Appellant’s account by 23 September 2015, one cannot be clear, on the balance of probabilities, that it had reached those views when it issued the s 424A letter. Indeed, the nature of the s 424A letter would tend to suggest, viewed from the perspective that one would assume that the Tribunal had an open mind at that time, that the Tribunal had no clear view as to where it was going to end up on any of the issues.

27    The correctness of the Appellants’ submission is therefore to be gauged as the Minister correctly submitted by asking whether, on the basis of what was before the Tribunal on 9 July 2015, there was an evident and intelligible basis for its decision only partially to reveal the information. That material consists of the certificate, the information itself and what is revealed in the footnote which constitutes the decision. The suggestion is that it was legally unreasonable not to reveal the three matters set out above (that the blood feud story was false XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX).

28    The certificate explained that the information had been provided in confidence and ‘as a result … should not be disclosed to parties before the Tribunal without appropriate consideration’. The Tribunal’s decision was that there would be a partial disclosure because that partial disclosure was ‘the extent to which the Tribunal thinks it appropriate to disclose the information’. Beyond that, one does not know what the Tribunal’s reasoning process was except that it can be inferred from the summary the Tribunal gave at para 9 of the letter of 9 July 2015 that it had read the disclosure.

29    It is apparent when one reads the disclosure that it is anonymous XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX.

30    Having read the information, it seems to me that revelation of the three integers of information contained in the anonymous disclosure which the Appellants now rely upon might tend to reveal the identity of the person in question. XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX. One can well understand why the Tribunal would think it inappropriate to reveal this information and to summarise it as best it could instead.

31    In that circumstance, I accept the Minister’s submission that there was an evident and intelligible basis for the decision of 9 July 2015. This was the primary judge’s conclusion as well. The challenge on this basis therefore fails.

32    Next the Appellants submitted that some of the information contained in the disclosure to the Department could not reasonably be said to have been given to the Department in confidence. This argument went to a contention that the certificate was, to an extent, invalid. As I understood it the next step in the argument was that the non-confidential material should have been disclosed to the Appellants. This argument was not raised in the Court below and therefore requires leave to be pursued in this Court. The non-confidential material was narrowed at the hearing to just two matters. XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX. However, this argument does not succeed. The certificate did not protect the confidentiality of the information in the disclosure. What was protected was the fact that the disclosure itself had been made in confidence. These matters may well have been known to the First Appellant but if it was revealed that the Department had been informed of them by an anonymous source it might well have identified that source for the reasons I have already given. I would not be disposed in that circumstance to grant leave to the Appellants to raise this argument not raised in the Court below.

33    A submission was advanced in the Appellants’ written submission that the existence of the certificate had not been disclosed. This submission was not pursued at the hearing, however. In any event, it is clear that the existence of the certificate was disclosed in the footnote to the s 424A letter set out above.

34    In those circumstances, the appeal should be dismissed with costs. The name of the Minister has been recently changed and this should be reflected in the orders too.

35    I will also make suppression orders similar to those made in the Court below preventing the publication of the document the subject of the s 438 certificate, and those parts of these reasons which tend to reveal its contents. The power to make such an order is found in s 37AF of the Federal Court of Australia Act 1976 (Cth) which provides that the Court may prohibit or restrict the disclosure of, relevantly, information tending to reveal the identity of or otherwise concerning any person associated with a party to a proceeding in this Court (s 37AF(1)(a)), information comprising evidence (s 37AF(1)(b)(i)) or information lodged with the Court (s 37AF(1)(b)(iv)). ‘May’ in the sense in which it is used in s 37AF means ‘must’: Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at 664 [32]-[33]. However, such an order must only be made on one or more of the grounds in s 37AG. Here, the relevant grounds are that the order is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)) or that it is necessary to protect the safety of any person (s 37AG(1)(c)). In accordance with s 37AE, I have taken into account the fact that the primary objective in the administration of justice is to safeguard the public interest in open justice. However, I am satisfied the document, if released, would threaten the proper administration of justice in dealing with allegations of the kind in this case, and would reveal the identity of the person who made that allegation and threaten their safety. I will make orders in the form proposed by the parties.

Associate:

Dated:    11 December 2019