Federal Court of Australia

EFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1609

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 20 December 2021 be dismissed.

2.    The applicant pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THOMAS J:

OVERVIEW

1    The applicant, EFM19, seeks leave to appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) (EFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 321 (EFM19)) by which the applicant’s interlocutory application for the production of documents was dismissed.

2    In summary, the applicant contended that the primary judge erred in refusing to make orders for the production of certain documents and, in relation to one document which was protected by a claim of public interest immunity, erred in failing to consider whether the document ought to have nonetheless been produced.

3    For the reasons which follow, the application for leave to appeal should be refused.

BACKGROUND

4    The applicant is a citizen of Afghanistan of Hazara ethnicity. He arrived in Australia as an undocumented irregular maritime arrival on 22 February 2012.

5    On 29 June 2012, he applied for a Protection (class XA) (subclass 866) visa. In his application, he claimed (among other things) that he had never applied for a refugee or protection visa and was not known by any other names. That visa was granted on 25 September 2012 (the protection visa).

6    On 19 September 2018, he was granted a Resident Return (subclass 155) visa (the resident return visa).

7    On 26 September 2018, the Department of Home Affairs (the Department) completed a “Facial Image Comparison Report” which compared photographs from the applicant’s protection visa application and an earlier application for a Refugee and Humanitarian (subclass 202) visa lodged in Islamabad on 16 December 2010. The earlier application was made by a parent who also claimed protection for his son, referred to as “P1”. The Department’s Facial Image Comparison Report stated that a forensic facial comparison indicated that the applicant and P1 were the same person.

8    On or about 2 October 2018, an officer of the Department sent a “cancellation referral” to the General Cancellations Network (GCN) alleging that the applicant had provided incorrect information to Australian authorities in his application for the protection visa.

9    On 13 March 2019, the applicant travelled to Pakistan from Australia.

10    On 12 April 2019, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided to cancel the applicant’s resident return visa pursuant to s 128 of the Migration Act 1958 (Cth) (the Act) relying on the ground for cancellation contained in s 116(1)(d) of the Act (that is, where the Minister is satisfied that the visa would be liable to be cancelled under Subdivision C (incorrect information given by holder) if the holder had entered Australia and been immigration cleared) (the cancellation decision).

11    As the applicant was offshore at the time of the cancellation decision, by operation of s 128, the Minister was not required to give the applicant notice of his intention to cancel the visa prior to making the cancellation decision.

12    On 7 May 2019, the applicant made submissions to the Minister as to why the cancellation decision should be revoked.

13    On 24 September 2019, a delegate of the Minister decided not to revoke the cancellation decision under s 131 of the Act (the non-revocation decision).

14    On 29 October 2019, the applicant commenced the proceedings below by way of originating application, seeking:

(a)    judicial review of the non-revocation decision;

(b)    an extension of time to apply for judicial review of the cancellation decision; and

(c)    an extension of time to apply for judicial review of what he referred to as the “delay decision”.

15    The “delay decision” refers to a claim by the applicant in the proceedings below that each of the cancellation and non-revocation decisions ought to be quashed on the basis that the decisions were affected by a “deliberate decision” by the Minister (or his staff) to delay the consideration of his visa until the applicant had left the country.

16    In support of this allegation, the applicant stated the following in his written submissions before the Court below:

There was a delay of 5 months between the cancellation referral and the cancellation decision. In the meantime, the applicant left the country in March 2019 (which the Government knew he was considering doing). The consequence of the applicant being out of the country at the time of cancellation was that the Act did not require that he be given notice and the opportunity to be heard. It also meant that Australia would not owe the applicant protection obligations, which would be a factor relevant to the cancellation discretion had it been exercised while the applicant was in Australia.

17    The premises for the allegation were further set out in the applicant’s statement of claim filed in the Court below on 19 August 2021. Among other things, he alleged that:

The [d]elay [d]ecision was made for the purpose of allowing circumstances to arise, by the applicant leaving Australia, such that the applicant’s visa could be cancelled without notice, and so that the applicant could not return to Australia prior to the cancellation of his visa, and for the purpose of frustrating or undermining the efficacy of the protection enjoyed by the applicant from Australia under its international obligations.

18    The statement of claim also contained a series of contentions in relation to the processes and functions of the Department. These contentions were based on inferences as to:

(a)    the Department’s record-keeping systems;

(b)    the function and operations of the GCN;

(c)    the existence of policy, instructions or guidelines relating to the GCN, including guidance as to prioritisation of referrals;

(d)    on the basis of the inferences above, the existence of a process by which GCN reviewed, considered and prioritised referrals;

(e)    on the basis of the inferences above, the existence of policy instructions or guidelines setting out the tasks that GCN officers would be required to do; and

(f)    the existence of training for GCN officers relevant to their tasks, including the effect of policy, and of the various alternative cancellation powers.

19    On the basis of those inferences, the applicant sought to demonstrate that an officer or officers made a deliberate decision to delay the cancellation decision in full cognizance of the following:

(a)    that the applicant was a person in respect of whom Australia owed protection obligations;

(b)    that the applicant had a history of travelling outside Australia to visit family in Pakistan;

(c)    that the applicant had recently obtained the resident return visa, which would allow for travel outside Australia;

(d)    that the applicant had applied for Australian citizenship;

(e)    that cancellation of the applicant’s visa while he was in Australia would require consideration of Australia’s non-refoulement obligations in respect of the applicant;

(f)    that cancellation of the applicant’s visa while he was outside Australia would allow visa cancellation without notice and with no consideration given to non-refoulement obligations; and

(g)    that departmental policy was to cancel visas without notice, if there was a risk that giving notice to a visa holder might prompt them to return to Australia.

20    Shortly after commencing the proceedings, on 14 November 2019, the applicant served a notice to produce on the Minister.

21    Following a hearing before Judge Dowdy, the Minister was ordered to produce certain documents relating to the cancellation decision. Among the documents produced by the Minister was a redacted copy of a “Project Chameleon Biographical Report” regarding the applicant which was referred to in the GCN cancellation referral (the Project Chameleon Report). The Minister claimed public interest immunity over the redacted parts of the document on the basis that:

it could reveal methodology used by the Department to determine whether visa holders have provided false information to the Department in support of their visa applications. If this methodology was widely known it could impair the Department’s ability to utilize this methodology to detect fraudulent claims.

22    On 12 December 2019, the applicant served a second notice to produce on the Minister under r 15A.17 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) (which concerned the production of documents at the hearing of a proceeding). In that notice, the applicant sought the production of 13 categories of documents (the second notice to produce).

23    On 23 April 2020, the Minister declined to produce the documents in categories 10 to 13. Those categories sought production of the following documents:

10.    All departmental policies or guidelines in force as at 2 October 2018 relating to:

(a)    the circumstances in which a General Cancellations Network (GCN) Referral Form should be completed;

(b)    the manner in which a General Cancellations Network (GCN) Referral Form should be engrossed and the information that should be provided with such a form;

11.    All departmental policies or guidelines in force in the period 2 October 2018 to 13 March 2019 relating to:

(a)    the constitution and operation of the General Cancellations Network;

(b)    the manner in which a General Cancellations Network (GCN) Referral Form is considered;

(c)    the considerations to be applied to a decision to consider visa cancellation for an individual referred for possible cancellation by a General Cancellations Network (GCN) Referral Form.

12.    Any departmental policies or guidelines that were actually considered or applied by one or more officers of the Department in respect of:

(a)    the GCN Referral Form produced by the Department on 9 December 2019 in these proceedings;

(b)    whether and when to proceed to a visa cancellation consideration for the applicant.

13.    Any document recording reasons why visa cancellation was not considered for the applicant in the period 2 October 2018 to 13 March 2019.

24    On 31 March 2021, the applicant filed an interlocutory application in the Federal Circuit Court of Australia, seeking the following substantive orders:

1.     The respondents are within 14 days to produce to the applicant’s lawyers, on such terms if any as the Court sees fit, an unredacted copy of “The Project Chameleon Biographical Report” referred to in the email dated 23 April 2020 from Liam Dennis to Lisa D’Ambra.

2.    The respondents are within 14 days to produce to the applicant the documents identified in paragraphs 10 - 13 (inclusive) of the notice to produce dated 12 December 2019 served by the applicant on the respondents.

…

25    The interlocutory application and the applications for extensions of time were part heard on several occasions before Judge Egan in 2021.

26    On 6 December 2021, the primary judge handed down judgment whereby his Honour:

(a)    granted the extension of time sought by the applicant for judicial review of the cancellation decision; and

(b)    dismissed the applicant’s interlocutory application concerning the production of documents.

27    On 21 December 2021, the applicant applied for leave to appeal from the primary judge’s decision to dismiss the interlocutory application.

PRINCIPLES CONCERNING LEAVE TO APPEAL

28    It was not in doubt that, by virtue of s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant required leave to appeal from the decision of the primary judge.

29    The principles concerning leave to appeal are well settled and were not disputed by the parties. Generally, as was summarised by Sheppard, Burchett and Heerey JJ in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9, the applicant must show:

(a)    that the decision below is attended by sufficient doubt to warrant its reconsideration by an appellate court; and

(b)    that substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong.

30    The considerations are cumulative, such that each limb must ordinarily be made out in order for leave to appeal to be granted: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139 at [5] (per Ryan, Stone and Jagot JJ).

31    Two other relevant matters should be noted:

(1)    where, as here, the primary judgment concerns matters of practice and procedure, the Court should exercise particular caution in determining whether to grant leave: see Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1; [2017] FCAFC 98 at [41]–[42] (per Jagot, Yates and Murphy JJ) and the cases cited therein; Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [4] (per Lee J; Allsop CJ and Rares JJ agreeing); Goodwin v HBCA Pty Ltd [2022] FCAFC 166 at [14] (per Middleton and Lee JJ); and

(2)    where the primary judgment involves an exercise of discretion, as it did here, the applicant must demonstrate an error of the kind referred to in House v The King (1936) 55 CLR 499 at 505 to succeed in his proposed appeal.

THE PROPOSED APPEAL

32    The draft notice of appeal contained two grounds of appeal, each alleging a separate error by the primary judge. By his application for leave to appeal, the applicant relied on those grounds in support of why the primary judgment was attended by sufficient doubt to warrant its reconsideration by this Court. In particular, the applicant asserted the following:

3.    Judge Egan (the primary judge) erred (at J[27] and (28]), in that he made an error of law, vitiating the exercise of his discretion, when deciding not to order the respondents to produce to the applicant within 14 days the documents identified at paragraphs 10 to 13 of the notice to produce dated 12 December 2019 served by the applicant on the respondents. His Honour ought to have exercised his discretion in favour of the production of those documents. The error occurred in circumstances where:

a.    the correct legal test that the primary judge was obliged to consider was whether the documents sought by the notice to produce had apparent relevance, or could realistically have a bearing, on the issues in the case (correct test);

b.    the primary judge accepted (at J[14(d)]), correctly, that the applicant had made out an arguable case that the decision to cancel the applicant’s visa (cancellation decision) was made in bad faith;

c.    the primary judge accepted (at J[28] and J[31]), correctly, that the applicant had articulated an arguable basis, capable of going to trial, for contending that the delegate, or someone in the respondents’ department, had made a decision deliberately to delay consideration of the cancellation of the applicant’s visa until the applicant had left Australia (delay decision), thus vitiating the later cancellation decision;

d.    applying the correct test, the primary judge ought to have considered whether the documents sought by the applicant could realistically have had a bearing on the issues identified by the arguable cases identified in (b) and (c) above, and therefore ought to have held that the documents should be produced;

e.    the primary judge made an error of law at J[28] by applying a different test (wrong test), which was to weigh:

i.    any inference which might on one view support a claim that there had been a deliberate delay decision; against

ii.    what were said to be sound reasons of public policy why an application for the production of documents should be rejected outright. Those reasons of public policy were that “the making of unsubstantiated claims of misfeasance in office by a public servant justifies the making of wide-ranging orders for the production of documents should be rejected”.

f.    Further in applying the wrong test, the primary judge erred at J[28] by holding (incorrectly) that the applicant had made unsubstantiated allegations of misfeasance in public office (when the applicant has made no claim for misfeasance in public office at all).

4.    The primary judge erred at J[25], in that he failed to consider a mandatory consideration and so made a legal error, when holding that the claim of public interest immunity in the document entitled “Project Chamelion Biographical Report” was justified. The primary judge ought to have ordered that the document be produced without redaction. The primary judge erred because:

a.    the primary judge was required by s 130(5)(d) of the Evidence Act 1995 and the general law to consider the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

b.    the primary judge did not consider these matters;

c.    the evidence was that if the information became “widely known”, it could harm the public interest: affidavit of Mr Anderson dated 25 June 2021 at [10];

d.    the applicant had submitted that the document could be produced subject to undertakings which would prevent the contents of the document being “widely known”;

e.    the primary judge did not consider the submission;

f.    in the premises, the primary judge erred in law and failed to afford procedural fairness to the applicant.

g.    Further, the evidence did not support a finding of public interest immunity and on a proper application of the law the document should be produced.

(errors and emphasis in original)

33    Adopting the approach of the parties in their written submissions, the appeal can be divided into two issues:

(a)    the primary judge’s decision in relation to the production of the documents specified in the notice to produce (ground 1); and

(b)    the primary judge’s decision in relation to the privilege claim over the Project Chameleon Report (ground 2).

THE PRIMARY JUDGMENT

34    Before dealing with each of these grounds, it is useful to briefly consider the reasons of the primary judge.

35    The primary judge first dealt with whether the applicant should be granted an extension of time to apply for judicial review of the cancellation decision. In granting the applicant an extension of time, the primary judge stated:

14    … the Court sees little utility in not granting the application for extension of time in respect of the cancellation decision. The Court is further minded to exercise its discretion in favour of the applicant, in that regard, for the following reasons:

…

(d)    At an impressionistic level, and without deciding finally on the issue, it is at least arguable that the cancellation decision was made in bad faith. In Part C of the ‘Decision Record of Visa Cancellation’ dated 12 April 2019, under the sub-heading ‘Section 128(a)(ii) of the Migration Act 1958’, it was said as follows:

“Having full regard to all of the circumstances of the case, I am satisfied it is appropriate to cancel the visa in accordance with Subdivision F of the Migration Act 1958.

The reasons I consider it appropriate to cancel without notice under section 128 of the Migration Act 1958 are that there is a real risk the visa holder, after being served with a Notice of Intention to Consider Cancellation, would return onshore. In the result of a visa cancellation outcome, this would result in possible detention and removal from Australia as well as result in a range of financial and time implications for the visa holder.”

15    The Court considers that further argument at a final hearing is required on the question as to whether or not the visa cancellation officer’s stated reason for considering it appropriate to cancel the visa without notice to the applicant was evidence of that person acting in good faith, or in bad faith. Inferences are capable of being drawn in both respects. Further, even if the Court was minded to find at any final hearing that the officer had acted in bad faith, the Court is of the view that further submissions on the question of materiality would be required in such event.

(emphasis in original)

36    The primary judge then turned to consider the two substantive orders sought by the applicant in his interlocutory application.

37    At [18], the primary judge noted that the orders sought for production were “prefaced upon the proposition that employees in the [Minister’s] department deliberately delayed making the cancellation decision until after the time that the applicant had departed Australia”.

38    The primary judge made the following observations regarding the applicant’s allegations in relation to the delay decision:

21    As is apparent from a reading of the applicant’s written submissions and the applicant’s pleadings, the adverse inferences which the applicant asks the Court to draw are based upon a supposition that because certain facts were known by officers of the Minister concerning the progress of the departmental investigation as to whether or not the applicant had provided false information concerning his identity in his protection visa application, that knowledge was used to manufacture a situation whereby the applicant was not required to be given prior notice of the Minister’s intention to cancel his visa. It was clearly asserted that inferences ought to be drawn that unidentified departmental officers had decided to delay the making of the cancellation decision until after the applicant had departed Australia (‘the Delay Decision’).

…

23    There is no direct evidence that any person intentionally delayed making any cancellation decision, nor is there any evidence that anyone within the Department could have known that the applicant had any intention to ever again depart Australia at the time of the [GCN cancellation referral]. Neither is there any evidence as to what stage the applicant’s citizenship application had reached at such time. Such are but examples of how the applicant’s claims are clearly based upon conjecture. It is in that context that the applicant’s application for orders requiring the production of documents must be viewed.

(emphasis added)

39    The primary judge then provided his reasons for rejecting the applicant’s claim that an unredacted copy of the Project Chameleon Report should be produced to his solicitors (at [24]–[25]). He recorded that the Minister had allowed the Court to inspect the contents of the Report and, on the basis of that examination, concluded (at [25]) that:

… the claim of public interest immunity, as set out in the 23 April 2020 email, is entirely justified. In the interests of the due administration of justice, and for the purpose of ensuring the ongoing investigative effectiveness of the methods and procedures of the Department, the Court considers that disclosure of the contents of the Report would be contrary to Australia’s public interest. Should the contents of the redacted sections of Confidential Exhibit JA-3 be disclosed, methodology used by the Department to determine whether visa holders have provided false information to the Department in support of their visa applications could be compromised. Such disclosure may jeopardise the Department’s functions in enforcing the provisions of the Act, which carries a strong element of public interest. The Court finds that the relative public interest of protecting such Departmental methodologies outweighs the importance of disclosing the redactions to the applicant for the purpose of assisting the applicant establishing his claims.

(footnote omitted)

40    The footnote in the above passage suggests that the primary judge determined the public interest immunity claim by reference to s 130 of the Evidence Act 1995 (Cth) (the Evidence Act).

41    The primary judge determined to refuse the second order sought by the applicant (that is, the order for production of the documents listed in categories 10 to 13 of the second notice to produce). The primary judge stated:

27    The application in paragraph 2 was without merit for the reasons advanced on behalf of the [Minister] at paragraphs 24 - 25 of the written submissions filed on behalf of the [Minister] on 25 November 2021. Those submissions were adopted as correct by the Court. The submissions were relevantly as follows:

“24.    In relation to prayer 2 of the Application:

(a)    the Minister notes there is nothing to produce in response to paragraph 13 of the Notice to Produce dated 12 December 2019; and

(b)    does not consent to production in response to paragraphs 10 to 12 of the Notice to Produce as:

(i)    paragraphs 10 and 11 appear to effectively seek discovery of material with unknown relevance and which will require difficult judgments about the possible relationship between various policy documents and the matters identified in paragraphs 10 and 11; and

(ii)    paragraph 12 effectively seeks to interrogate departmental officers about matters not apparent on the face of the relevant decisions (if any) or documents, where it is unlikely the relevant officer has any recall other than that recorded in a written document and again, where the relevance of the policy documents is not apparent.

25.    The applicant has not identified how any of the policy documents sought by him are relevant to his application under section 477(2) of the Act or to his judicial review applications where the decisions made plainly list the various matters the decision-maker took into account. Such policy documents are not relevant on their face and paragraphs 10 to 12 of the Notice to Produce appear to be a fishing expedition: cf Commissioner of Police (NSW) v Tuxford [2002) NSWCA 139 at [20]; Dunstan v Human Rights and Equal Opportunity Commission [2004) FCA 1137 at [29); Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102.”

28    The Court was not persuaded that any inference which might on one view support a claim that there was an intentional ‘Delay Decision’ justified the production of the documents sought by the applicant. There are sound public policy reasons why applications for the production of documents in circumstances such as the present ought to be rejected outright. The very notion that the making of unsubstantiated claims of misfeasance in office by a public servant justifies the making of wide-ranging orders for the production of documents should be rejected.

42    At the conclusion of the judgment, the primary judge stated:

31    Having extended time to the Applicant to file the Originating Application for Review of the Cancellation Decision, the applicant is not precluded from advancing any appropriate argument in respect of the purported Delay Decision at the time of the final hearing of the application for review. The foreshadowed basis for doing so advanced by Counsel on behalf of the applicant was on unreasonableness grounds relevant to the exercise, or non-exercise, of non-statutory power. Questions as to whether such power was asserted to be an executive power or not, and the categorisation of such power if not an exercise of executive power, will need to be addressed at the final hearing …

…

33    … Allegations in respect of an alleged delaying of the making of the cancellation decision are able to be fully canvassed and argued, at the appropriate time and in an appropriate manner, without the production of documents in a fishing expedition context.

CONSIDERATION

Refusal to order production of documents

43    By ground 1 of his proposed notice of appeal, the applicant contended that the primary judge erred in refusing to require the Minister to produce the documents sought by him in the second notice to produce. In particular, the applicant contended that the primary judge acted upon the wrong principle (that is, applied the wrong legal test) in determining whether the documents should be produced.

44    As mentioned above, the second notice to produce was purportedly issued under r 15A.17 of the Federal Circuit Court Rules. Rule 15A.17 provided:

Notice to produce

(1)     A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.

(2)     Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.

45    That rule is now contained in identical terms in r 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). A similar rule concerning notices to produce also exists under r 30.28 of the Federal Court Rules 2011 (Cth).

46    The Minister contended that the second notice to produce “had no status” under the Federal Circuit Court Rules because, contrary to r 15A.17, it was not served so as to require production at the hearing of the proceedings (rather, it sought production of the documents prior to the hearing). However, at the hearing of the application for leave, counsel for the applicant categorised the interlocutory application for production as having been, effectively, an application for an order under r 15A.17(2) for earlier production of the documents. It is evident from the written submissions before the primary judge that the Minister also treated the application in this way.

47    On this basis, the applicant contended that the correct legal test to be applied by the primary judge was whether the documents had an apparent relevance bearing on an issue which was not unreal, fanciful or speculative; or that the material sought was reasonably likely to add in some way to the relevant evidence in the case; or that it was “on the cards” that the documents sought would materially assist. In support of this, the applicant relied on the decisions of Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 (Wong v Sklavos) at [12] (per Jacobson, White and Gleeson JJ), Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [23] (per Wigney J) and Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) [2021] FCA 582 at [8]-[9] (per Abraham J). The applicant submitted further that, since the documents would be produced to him at the hearing “as of right” by virtue of the second notice to produce, he was entitled to pursue orders to bring the date of production forward so as to allow time to prepare his case for hearing.

48    The applicant’s submission regarding the test to be applied in respect of notices to produce is correct. It has been said that a notice to produce issued under provisions such as rr 15A.17, 16.16 or 30.28 has the same coercive effect as a subpoena: see Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428; [2005] FCAFC 115 at [58] (per Conti J). It follows that the principles applicable to subpoenas are applicable to documents sought under a notice to produce: The Official Trustee in Bankruptcy v Shaw [2023] FCA 298 at [16] (per Collier J). Although the various cases (including the cases cited by the applicant) use different terminology, each sets out essentially the same requirement: that the documents must serve a legitimate forensic purpose in relation to the issues in the proceeding.

49    Critically, where the entitlement to the documents specified in the notice is disputed, the party issuing the notice to produce bears the onus of establishing that the documents sought have an apparent relevance to the issues in the proceedings: Wong v Sklavos at [12].

50    It is evident from the above principles that the production at a hearing of documents the subject of a notice to produce does not occur “as of right”, as the applicant suggested. It was always open to the Minister to seek to have the second notice to produce set aside at the appropriate time. Indeed, the Minister did, in the application before the primary judge, challenge the applicant’s entitlement to the documents sought under categories 10 to 13.

51    The applicant asserted that the primary judge applied the incorrect test in that he did not engage with the applicant’s submissions as to the relevance of the documents sought. He asserted that the primary judge instead declined to order production on the basis of “sound public policy reasons why applications for the production of documents in circumstances such as the present ought to be rejected outright” and “the very notion that the making of unsubstantiated claims of misfeasance in office by a public servant justifies the making of wide-ranging orders for the production of documents should be rejected”: EFM19 at [28].

52    To the extent this submission suggested that appellable error may be demonstrated by a failure by the primary judge to engage with certain of the applicant’s submissions, it must be rejected. The primary judge was permitted to decide the matter in a way which did not require the determination of each submission made by the applicant: see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 (per Mahoney JA).

53    Further, an analysis of the primary judgment demonstrates that, contrary to the applicant’s submission, the primary judge did not fail to address the relevance of the documents sought.

54    In EFM19 at [27], the primary judge adopted the Minister’s submissions concerning the applicant’s failure to demonstrate that the documents were relevant to the proceedings. They were that the documents did not meet the requisite test for relevance for several reasons, including that:

(a)    the applicant did not identify how any of the policy documents sought by him were relevant to his application under s 477(2) of the Act or to his judicial review applications where the decisions made plainly listed the various matters the decision-maker took into account;

(b)    the policy documents sought were not relevant on their face;

(c)    the documents sought under categories 10 to 12 appeared to be a fishing expedition (which is a purpose for which a notice to produce should not be used);

(d)    the documents under categories 10 and 11 effectively sought discovery of material with unknown relevance and which would require difficult judgments about the possible relationship between various policy documents and the matters identified in categories 10 and 11; and

(e)    the documents under category 12 effectively sought to interrogate departmental officers about matters not apparent on the face of the relevant decisions (if any) or documents and, again, where the relevance of the policy documents was not apparent.

55    Regarding the documents sought under category 13, the primary judge accepted the Minister’s submission that there were in fact no documents in existence which fell under that category.

56    Having dealt with the relevance of the categories of documents, which conclusions were, in themselves, sufficient to underpin refusing production of the documents, the primary judge then provided further reasons, in EFM19 at [28], for refusing to order that the documents in categories 10 to 13 be produced. In particular, the primary judge:

(a)    was not persuaded that any of the inferences which might support a claim that there was an intentional “delay decision” justified the production of the documents;

(b)    considered that there were sound public policy reasons for refusing the production of documents in circumstances such as the present; and

(c)    rejected the notion that the applicant’s claims (which he described as “unsubstantiated claims of misfeasance in office by a public servant”) could justify the making of “wide-ranging orders” for the production of documents.

57    The authorities are clear that notices to produce should not be used as an alternative to an application for discovery or for the purposes of “fishing” for evidence or documents: see, for example, NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [20] (per Brownie AJA; Spigelman CJ and Ipp AJA agreeing).

58    Further, in Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739, Foster J observed that the fundamental principle which drives the statements of principle concerning notices to produce (and subpoenas) is “that the Court should not permit its processes to be abused and should guard against the use of its compulsive powers as an instrument of oppression” (at [32]-[38]). This principle has been adopted in the FCFCOA (see Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268 at [83]).

59    The primary judge’s reasons revealed that the primary judge did not fail to consider the relevance of the documents sought to be produced. The primary judge concluded that the documents did not serve a legitimate forensic purpose in relation to the issues in the proceeding. The additional reasons provided by the primary judge for refusing the production of the documents are consistent with the principles which attend applications for the production of documents.

60    The applicant further submitted that his claim was that administrative decisions were taken for purposes other than those contemplated by Parliament in the exercise of visa cancellation powers, not a cause of action for the tort of misfeasance. However, the primary judge did not misconstrue the claim made by the applicant – he merely described it as being in the nature of a claim of misfeasance, and was right to do so.

61    The applicant also contended that the primary judge’s reasons for declining to order production were inconsistent with the primary judge’s agreement that “it is at least arguable that the cancellation decision was made in bad faith” (EFM19 at [14(d)]) and that “the applicant is not precluded from advancing any appropriate argument in respect of the purported delay decision at the time of final hearing of the application for review” (EFM19 at [31]). The applicant submitted that the documents met the test of apparent relevance because they go directly to understanding what happened in the Department between the GCN referral and the cancellation decision.

62    These submissions seek to argue the merits of the application below. The primary judge decided against the applicant, finding that the documents were not properly sought by a notice to produce. The applicant has not demonstrated that the primary judge acted upon a wrong principle in reaching that decision.

63    The Minister correctly pointed out that the contentions in the statement of claim underpinning the categories of documents sought consisted of inferences built on other inferences which were made without evidence; did not place the Minister in a position to be able to answer the claims; and were appropriately characterised by the primary judge as “conjecture”.

64    The primary judge’s reference to the decision having possibly been made “in bad faith” was made in the context of the consideration which is undertaken in relation to the application for an extension of time to apply for judicial review of the cancellation decision. The primary judge’s observation related to whether the reasons given on the face of the record of the decision evinced a valid exercise of the cancellation power; it was not an acknowledgement by him that there was an arguable case in relation to the alleged delay decision, or that the documents sought in the second notice to produce were relevant to the issues in the proceedings.

65    The primary judge was justified in treating the applicant’s claims in relation to the delay decision with some scepticism and was justified in outlining (in addition to his conclusion that the documents lacked relevance) the reasons contained in EFM19 at [28] for refusing production. The applicant submitted that the allegations “do arise from reasonably arguable contentions”. The primary judge had regard to the fact that the case, as to the delay decision, was premised solely upon inferences and suspicions as to the reasons for the delegate’s decision – which were contrary to the reasons recorded on the face of the decision – and as to which there was no direct evidence.

66    As the primary judge observed, the orders sought for production were “prefaced upon the proposition that employees in the [Minister’s] department deliberately delayed making the cancellation decision until after the time that the applicant had departed Australia.” (EFM19 at [18]).

67    Ultimately, the applicant failed to satisfy the primary judge of the relevance of the documents he sought so as to satisfy the requisite test for production. There is not sufficient doubt as to the primary judge’s decision that policy documents were not relevant in that they could not shed any light on the cancellation decision or purported “delay decision”. That is especially so considering that the matters taken into account were plainly expressed in the delegate’s reasons for the cancellation decision.

68    Even if the primary judge did act upon a wrong principle in determining whether the documents should be produced (which I have rejected), leave to appeal should not be granted. That is because the applicant will not be caused any injustice if he is prevented from having access to policy documents of general application prior to a hearing concerning a substantial allegation of actual misconduct. As the Minister submitted, documents which shed light on basic departmental policy and processes could not rationally assist the applicant in determining (or proving) how the particular delegate who made the cancellation decision acted.

69    For these reasons, the primary judge’s refusal to order production of the documents identified in the second notice to produce was not attended by sufficient doubt so as to warrant its reconsideration by an appellate court.

70    In the alternative, and despite the manner in which the case was conducted below, the Minister submitted that the interlocutory application should have been treated as an application for discovery such that an even stricter test needed to be satisfied by the applicant.

71    In particular, the Minister submitted that, if the second notice to produce was to be taken, in substance if not in form, as seeking discovery because production was sought in advance of the hearing, then the correct legal test was whether it was “appropriate in the interests of the administration of justice, to allow the interrogatories or discovery”: see s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). In that regard, the Minister relied on the observations of Land J in Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 (concerning s 45 of the erstwhile Federal Magistrates Act 1999 (Cth)):

51    The presumption in s 45(1) of the Federal Magistrates Act is that discovery will not be permitted in any proceedings in the Federal Magistrates Court unless the Federal Magistrate has made the declaration provided for in s 45(1).

52    Section 45(1) assumes that, unless the declaration is made, discovery is not necessary for the orderly disposal of proceedings in the Federal Magistrates Court. That assumption is consistent with s 3(2) of the Federal Magistrates Act, which provides that the objects of the Act are for informality, streamlined procedures, and the use of appropriate dispute resolution processes.

53    The purpose of discovery is to assist in resolving disputes as to fact. Discovery can be a lengthy and expensive process. Because of the high cost to the parties of the discovery process, both in giving discovery and taking inspection, the modern trend is to contain the obligation to give discovery by giving the Court control over the process; by limiting the circumstances in which discovery is to be given; and, if discovery is to be given, by limiting the extent of the discovery given. The cost of discovery can far outweigh the benefits.

54    Section 45(2) identifies the circumstances in which it would be “appropriate”, in “the interests of the administration of justice”, to make an order for discovery, by requiring the Federal Magistrate to have regard to whether an order for discovery “would be likely to contribute to the fair and expeditious conduct of the proceedings” and any other relevant matter. An application for discovery in the Federal Magistrates Court should be approached on the basis that the application should be refused unless the making of an order requiring a party to give discovery would be likely to contribute to the fair and expeditious conduct of the proceeding or there is some other relevant matter that would mean that an order would be in the interests of the administration of justice. The expression, “the administration of justice”, must be understood by reference to the scheme of the Act and the presumption that discovery is not usually necessary for the fair and expeditious disposal of the proceeding.

This passage was cited with approval by Thawley J in Russel v Macquarie Bank Limited [2020] FCA 1332 at [50].

72    By this submission, the Minister correctly pointed out the important distinction between the rules and procedures for discovery and interrogatories, on the one hand, and notices to produce, on the other; the former being a pre-hearing procedure and the latter being considered at the hearing when all submissions and evidence have been adduced. This places the Court in a very different position when considering a notice to produce at the trial stage from the position of the Court asked to consider an order for discovery and interrogatories.

73    However, it is clear that the parties and the primary judge treated the application below as one concerning the second notice to produce. In light of this and my above findings, it is not necessary to consider this argument. It suffices to say that a higher bar would have had to be met by the applicant if the application below were to be treated as one for discovery or interrogatories. Considering my findings that the applicant failed to demonstrate the relevance of the documents sought, it is unlikely that he would have met any higher test for discovery or interrogatories.

74    The applicant has failed to demonstrate that the primary judge’s decision is attended by sufficient doubt in terms of proposed ground 1 of the draft notice of appeal.

Refusal to order production of unredacted Project Chameleon Report

75    Before the primary judge, there was a question as to whether the redacted parts of the Project Chameleon Report were protected by public interest immunity. The applicant contended before the primary judge that they were not so protected or, alternatively, that the Court had a power to “place limits on the manner of production”. The applicant submitted that the effect of the evidence before the Court regarding the public interest was that if the Department’s investigative methodology became “widely known”, it could impair the Department’s ability to utilise that methodology (emphasis added). He therefore submitted that providing his lawyers with an unredacted copy of that Report would not result in its contents becoming “widely known”.

76    The primary judge concluded (after having inspected the Project Chameleon Report) that the claim of public interest immunity was “entirely justified”. The primary judge held that, “in the interests of the due administration of justice, and for the purpose of ensuring the ongoing investigative effectiveness of the methods and procedures of the Department … disclosure of the contents of the [Project Chameleon] Report would be contrary to Australia’s public interest”: EFM19 at [25].

77    By ground 2 of his proposed appeal, the applicant contended that the primary judge erred by failing to consider whether the production of an unredacted copy of the Project Chameleon Report could be limited to the applicant’s solicitors. The applicant also made it clear that he was not challenging the primary judge’s finding that the Project Chameleon Report was protected by public interest immunity. Essentially, he raised two alternative contentions:

(a)    first, that the primary judge erred in failing to consider whether there were means to limit the publication of the Project Chameleon Report (such as providing an unredacted copy only to the applicant’s solicitors), as that was a mandatory consideration to be taken into account by him under s 130(1)(d) of the Evidence Act; or

(b)    alternatively, if limited production was not a mandatory consideration to be taken into account by the primary judge under s 130(5)(d), the primary judge’s failure to consider the possibility of limited production nevertheless amounted to jurisdictional error because it was an argument put by the applicant which was not dealt with.

78    The first contention is based upon the assumption that the Minister’s claim of public interest immunity was to be determined by reference to s 130 of the Evidence Act as opposed to the common law.

79    Section 130 of the Evidence Act relevantly provides:

(1)     If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

…

(5)     Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

…

(d)     the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

…

80    The Minister contended that the claim of public interest immunity was to be determined by reference to the common law as the claim was made in relation to a preliminary pre-trial process, which fell outside the ambit of the Evidence Act. As a result, any part of s 130 of the Evidence Act that may establish a mandatory consideration was not apposite to this case. As authority for this proposition, the Minister relied upon Esso Australia Resources Limited v Commissioner Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67 (Esso) at [17]-[28] (per Gleeson CJ, Gaudron and Gummow JJ) and Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 (Mann v Carnell) at [25]-[27] (per Gleeson CJ, Gaudron, Gummow and Callinan JJ).

81    In Esso, their Honours observed that Chapter 3 of the Evidence Act (ss 55-139) dealt with the adducing of evidence. This, they said, would cover adducing evidence in interlocutory applications as well as at a final hearing, or on an appeal, but that it did not cover all the circumstances in which a claim for privilege might arise. At 59 [17], their Honours observed:

The claim in contention in the present case was not a claim that certain evidence could, or could not, be adduced. It was a claim that the appellant was not obliged to make certain written communications available for inspection by the respondent. Sections 118 and 119 are expressed in language which does not address that claim.

82    In Mann v Carnell, the plurality made the following observations:

25    … At the time of the proceedings before the Full Court of the Federal Court, the prevailing, although not uncontroversial, view in the Federal Court was that expressed in Adelaide Steamship Co Ltd v Spalvins. In brief, the view was that, when a question arises at a pre-trial stage as to privilege, or loss of privilege, although ss 118 and 122 have no direct application, and the common law is to be applied, the common law must adapt itself to the statute, which thereby is applied derivatively … Later, a specially constituted Full Court of the Federal Court, in Esso Australia Resources Ltd v Federal Commissioner of Taxation, held that Adelaide Steamship was wrongly decided. That decision has been the subject of an appeal to this Court, and judgment is delivered on the same day as this judgment.

26    The Full Court of the Federal Court in this case … approached the matter on the basis that the central issue was to be resolved by reference to ss 118 and 122 of the Evidence Act. They concluded that the confidential disclosure to Mr Moore of the contents of the privileged communications from the legal advisers of the Australian Capital Territory did not result in loss of the privilege. They held that the case fell within s 122(2)(a), and that s 122(4), which they said applied to disclosures by someone other than the client or an agent or employee of the client, did not operate.

27    Consistently with this Court’s decision in Northern Territory v GPAO and its reasoning in relation to the appeal in Esso, it must be concluded that the Full Court in the present case erred in deciding that the applicable law was to be found (derivatively) in the Evidence Act. In that respect, it may be noted that no argument was advanced, either before Miles CJ, or in the Full Court, or in this Court, in support of an argument that could possibly have given the Evidence Act significance in another way …

(footnotes omitted)

83    This view was affirmed by the Full Court in Commissioner of Police, New South Wales v Guo (2016) 332 ALR 236; [2016] FCAFC 62 at [71] (per Robertson and Griffiths JJ; Collier J agreeing):

We have also referred above to the reliance placed by the Tribunal upon s 130 of the Evidence Act in concluding that public interest immunity was no longer a substantive rule of law, but rather is a rule of evidence. This reasoning was used to distinguish Jacobsen. In [42] of the Tribunal’s reasons for decision, it was said that, by enacting s 130 of the Evidence Act, the Parliament was “resolving” the dispute whether public interest immunity was a common law doctrine by characterising it as a rule of evidence. In our respectful opinion, the Tribunal failed to appreciate the limited nature of s 130 of the Evidence Act and its non-application to pretrial steps prior to evidence being adduced in curial proceedings, such as discovery and notices to produce: (see, Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 ; 168 ALR 123; [1999] HCA 67). This limitation has been overtaken in some State and Territory evidence legislation (see s 131A) but not at the Commonwealth level. There has never been any doubt that public interest immunity has effect in a court and is therefore a rule of evidence. Thus, the Evidence Act only applies to proceedings in a Federal Court or in a body which is required to apply the rules of evidence (see s 4). To say that, however, is to say nothing about public interest immunity outside a court as a substantive rule of law.

(emphasis added)

84    The clear consequence of the above authorities is that the public interest immunity claim had to be decided by reference to the common law, not s 130 of the Evidence Act.

85    As a result, the primary judge was not required to consider, in the sense of a mandatory consideration, whether an unredacted copy of the Project Chameleon Report could have been produced on a limited basis to the applicant’s solicitors.

86    Though the primary judge might have considered the immunity in the context of the Evidence Act, that test is derived from the common law and substantially similar considerations arise. There is nothing to suggest that his Honour would have reached a different conclusion had he considered the immunity in the context of the common law.

87    As for the applicant’s second contention, it is correct that a judge may fall into error by overlooking and failing to consider a substantial argument: see Jess v Cooloola Milk Pty Ltd (2022) 292 FCR 284; [2022] FCAFC 75 at [21]. However, the fact that the primary judge did not expressly recite the applicant’s submission does not mean that the primary judge did not consider whether an unredacted copy of the Project Chameleon Report should be produced on a limited basis to the applicant’s solicitors. In EFM19 at [25], the primary judge stated:

The Court finds that the relative public interest of protecting such Departmental methodologies outweighs the importance of disclosing the redactions to the applicant for the purpose of assisting the applicant establishing his claims.

(emphasis added)

88    This seems to clearly dismiss the applicant’s contention that the Project Chameleon Report should be produced at all, whether on a limited basis or otherwise.

89    Either way, even if the primary judge did fail to deal with the applicant’s submission concerning limited production, it is not evident that he would have reached a different conclusion had he taken that submission into account, or that any substantial injustice would be suffered by the applicant supposing that the primary judge’s decision was wrong.

90    The applicant’s contention under ground 2 does not advance his case. No error has been shown in the primary judge’s application of the test for the privilege. In circumstances where the primary judge’s holding that the Project Chameleon Report was protected by the public interest immunity was not challenged, there is no room to argue that it should be produced to the Court or the applicant.

91    The applicant pointed to two cases in which he said the courts have tailored relief so as to protect the public interest by limiting production of the documents to lawyers only: Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90 (Kanthal) (per Wilcox J) and SZUJT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 612 (SZUJT) at [15]-[20] (per Perry J).

92    In Kanthal, the respondent objected to the inspection of certain documents on the grounds that the public interest required adherence to his undertaking that the documents should be treated as confidential. The circumstances leading to the privilege were quite different. The effect of this decision was simply that, in certain circumstances, it was possible to protect the interest intended to be safeguarded by the confidentiality undertaking whilst allowing the applicant an opportunity to properly present its case in reliance on the documents.

93    The second case, SZUJT, is of limited assistance in circumstances where the relevant orders for production were made by consent.

94    These cases do not further the applicant’s case. This was not a case where limited disclosure was appropriate. Once a claim of public interest immunity is accepted at common law, the documentation the subject of the claim cannot be used in evidence or otherwise used in the proceedings, so that production to the applicant’s representatives would be futile. In that regard I agree with the following passage in Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 (Gypsy Jokers) at [24] (per Gummow, Hayne, Heydon and Kiefel J (as her Honour then was) JJ):

For the purpose of ruling on such a claim the Supreme Court might inspect for itself, and without disclosure to the applicant, the materials in question. A successful claim to such immunity (preferably by decision of a judicial officer other than the trial judge) would have the consequence that the material was not admitted into evidence and would be denied both to the Court and the applicant …

(footnotes omitted)

95    The applicant contended that the commentary in Gypsy Jokers to the effect that documents the subject of an immunity claim cannot be adduced as evidence was obiter dicta as that issue was not before the High Court in that case, and any tension in the authorities on that issue should favour the grant of leave for those issues to be resolved.

96    This must be rejected. The determination of a claim of public interest immunity is always a question of weighing the competing interests in the particular circumstances of the case. The reasons of the primary judge reveal that the primary judge did just that, and it must be borne in mind that the primary judge inspected the document.

97    The applicant has failed to demonstrate that the primary judge’s decision was attended by sufficient doubt in terms of proposed ground 2 of the draft notice of appeal, or that substantial injustice would be suffered supposing the decision to be incorrect.

DISPOSITION

98    For the above reasons, the applicant has failed to establish that the primary judgment was attended by sufficient doubt to warrant its reconsideration by an appellate court.

99    In those circumstances, it is unnecessary to consider in full what effect a refusal of leave would have on the applicant supposing that the primary judge’s decision was incorrect. It is similarly unnecessary to consider the Minister’s proposed cross-appeal.

100    Leave to appeal must therefore be refused, with costs to follow the event.

Associate:    

Dated:    15 December 2023