Shen v Minister For Home Affairs & Anor [2019] FCCA 538 (8 March 2019)

Last Updated: 8 March 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEN v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 538

Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Objection to production of documents called by subpoena on the ground of public interest immunity – whether there is a legitimate forensic purpose to the production of the documents – whether documents sought to be produced provided to the Department of Home Affairs on the basis of confidence – whether disclosure of documents would be a breach of that confidence and for that reason be against the public interest – whether the public interest in the administration of justice would be affected by the withholding of production of the documents – public interest immunity held in relation to some but not all of the documents.

Legislation: Migration Act 1958 (Cth), ss.100, 101, 104, 109(1), 359A, 375A.

Cases cited: AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58 Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 Cain v Glass (1985) 3 NSWLR 230 Commonwealth v Northern Land Council [1993] HCA 24 Gilson v Minister for Immigration & Multicultural Affairs [1997] FCA 642 NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 R v Mason [2000] SASC 161 R v Tastan (1994) 75 A Crim R SZTYV & Anor v Minister for Immigration & Anor [2018] FCCA 64 Wong v Sklavos [2014] FCAFC 120

Applicant:

BEILIN SHEN

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2209 of 2018

Judgment of:

Judge Manousaridis

Hearing date:

14 February 2019

Date of Last Submission:

14 February 2019

Delivered at:

Sydney

Delivered on:

8 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder

Solicitors for the Applicant:

Wb Legal

Counsel for the First Respondent:

Mr R Scheelings

Solicitors for the First Respondent:

Mills Oakley

ORDERS

(1) The first respondent’s objection on the ground of public interest immunity to the production of the documents comprising folios 8, 19, and 23-65 of Departmental file BCC2016/1968454 is upheld.
(2) The first respondent’s objection on the ground of public interest immunity to the production of the documents comprising folios 1-7, 9-18, 20-22, and 93-99 of Departmental file BCC2016/1968454 is dismissed.
(3) The first respondent have liberty to apply for an order to set aside the subpoena issued on 20 September 2018 to the extent the subpoena calls for the production of the documents referred to in order 2.
(4) The costs of the hearing of the objection to production are reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 2209 of 2018

BEILIN SHEN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In these reasons for judgment I consider whether, as claimed by the first respondent (Minister), public interest immunity applies to certain documents called by a subpoena for production issued on the application of the applicant.
2. The question arises in a proceeding for judicial review of a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the Minister to cancel under s.109(1) of the Migration Act 1958 (Cth) (Act) a Subclass 801 (Spouse) visa (801 Partner visa) that had been granted to the applicant.

Principles

3. The expression “public interest immunity” refers to a set of principles which, in the circumstances in which they apply, may lead a court to relieve a person from the obligation to produce a document or thing, or to answer a question, in circumstances where the person would otherwise be obliged to produce the document or thing, or to answer the question. Gibbs CJ in Alister v The Queen stated the relevant principles as follows:^[1]
   • . . . when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.
4. An important principle that should not be overlooked when considering claims for public interest immunity is that “the “(public interest immunity) balance should only take place upon the court deciding that the information is required by a party” to establish material facts alleged”.^[2] A party seeking the production of documents in answer to subpoena or notice to produce must first show there is a legitimate forensic purpose to requiring the production of the documents. Thus it has been said:^[3]

It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made.

5. The relationship that documents described in a subpoena for production must have to the issues in a proceeding was described by the Full Federal Court in Wong v Sklavos as follows:^[4]
   • The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.
6. There are well-established categories of case where harm to the public interest may readily be inferred if documents are required to be disclosed. Relevant to the application before me are cases where it is claimed the disclosure of documents would reveal the identity of an informant. The potential harm to the public interest in disclosing the identity of informants and, therefore, the justification for the availability of the immunity in this class of case, were identified by McHugh JA (as his Honour then was) in Cain v Glass (No 2):^[5]
   • The justification for the exalted position of the informer rule in the spectrum of public interest immunity is that, unless the anonymity of informers is protected ‘the flow of intelligence about planned crime or its perpetrators’ will stop: D v National Society for the Prevention of Cruelty to Children (at 232) per Lord Simon of Glaisdale. Although the need to protect the safety of informers may have played a part in creating the principle, the existence of a threat to the informer is not a condition precedent to its operation.
7. The public interest in maintaining the anonymity of informers was recently repeated by the High Court in AB (a pseudonym) v CD (a pseudonym):^[6]

Generally speaking, it is of the utmost importance that assurances of anonymity of the kind that were given to [the informer] are honoured. If they were not, informers could not be protected and persons would be unwilling to provide information to the police which may assist in the prosecution of offenders. That is why police informer anonymity is ordinarily protected by public interest immunity.

8. In R v Mason Bleby J (with whose reasons Doyle CJ and Mullighan J agreed) said that, given that the public interest against disclosure resides in the need to maintain anonymity, “there must be an element of confidentiality in the identity of the informer”, because it “is only the assurance of confidentiality of the identity of the informer that prevents the valuable sources of information from drying up”. ^[7] Bleby J further said:^[8]
   • The rationale for the immunity requires that there be protection of actual confidences, or of information given in confidence. That means, on a true analysis, that the immunity will only protect the identity of a person where the information is given upon condition that the confidence is honoured and that the person's identity will not be disclosed, or upon an assurance by the recipient that that will be the case. Anything less would seem not to be justified by the rationale for the immunity.
9. Lehane J considered this category of public interest immunity in the context of the administration of our migration laws in Gilson v Minister for Immigration & Multicultural Affairs.^[9] In that case the Immigration Review Tribunal had before it documents it did not disclose to the applicant containing allegations made against the applicant by an informant or informants and departmental documents regarding investigations of those allegations. His Honour found the documents were subject to public interest immunity:^[10]
   • 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 . . . ;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 . . . . 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 . . . or whether, on the other hand, a less constrained “balancing exercise” is called for . . . 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 . . . .
10. The most significant consideration when determining whether non-disclosure would adversely affect the administration of justice is the importance or potential importance of the document to the case of the party seeking disclosure of the document.
11. It is open to the court when considering claims for public interest immunity to read the documents over which the claim is made. As will appear later, I have taken advantage of this power and have read the documents over which the Minister claims public interest immunity.

Issues and approach

12. The issues that I must consider, therefore, are as follows:
    1. Has the applicant identified a legitimate forensic purpose for the production of the documents called for by the subpoena?
    2. Assuming (a) is answered in the affirmative, would the disclosure of all or some of the documents injure the public interest in maintaining the flow of information from informers?
    100. Assuming (b) is answered in the affirmative, would the administration of justice be frustrated or impaired if the documents are withheld?
    4. If (c) is answered in the affirmative, after balancing the competing public interests in maintaining confidentiality over the documents, and public interest in the due administration of justice, which of these public interests should prevail?
13. To be in a position to consider these questions, it will be necessary to set out the matters that are in issue in the proceeding; and to be in a position to do that, it will be necessary to set out the facts out of which the application for review came before the Tribunal, the course of the proceeding before the Tribunal, the Tribunal’s reasons for affirming the delegate’s decision, and the grounds on which the applicant relies for claiming the Tribunal made a jurisdictional error. It will then be necessary to identify the documents the Minister submits are subject to public interest immunity, and the grounds stated in the amended application to which the applicant claims the documents are relevant.

Background

14. On 10 August 2010 the applicant, a national of China, submitted to the Department of Immigration and Citizenship (Department) a form of application for the grant of a combined UK/BS subclass 820/821 partner visa (Application Form). The applicant provided a number of answers to questions contained in that form, including the name of the sponsor, and that the applicant and the sponsor were married. On 30 August 2010 the applicant was granted a class UK subclass 820 Partner (Temporary) visa (820 Partner visa).
15. On 28 May 2012 the Department provided to the applicant a request for further documents for the purpose of determining whether the applicant should be granted a 801 Partner visa. On 18 July 2012 the applicant provided evidence of co-habitation with the sponsor and other evidence relevant to the ongoing relationship between the applicant and the sponsor. That included two statutory declarations, one made by the applicant, and one by the sponsor. Each statutory declaration stated the applicant and the sponsor loved each other, and that their marriage “is absolutely genuine and continuing”. The applicant was granted the 801 Partner visa on 24 September 2012.
16. By notice dated 27 July 2017 (Notice) a delegate of the Minister informed the applicant the delegate considered there had been non-compliance with s.101 and s.104 of the Act. Section 101 requires a non-citizen to fill in or complete his or her application form for a visa in such a way that all questions on the form are answered, and no incorrect answers are given. Section 104 of the Act requires a person who has completed a form of application for a visa to inform an officer in writing of any changes in circumstances that render incorrect any answer given in an application form for a visa.
17. The Notice stated that, contrary to s.101(b) of the Act, on 12 July 2012 the applicant had provided to the Department two statutory declarations containing incorrect information, namely, that the applicant was still in a loving and genuine relationship with the sponsor; and that the answer was incorrect because the Department had become aware of a divorce order made by the Family Court on 5 May 2013 that the applicant’s marriage to her sponsor ended on 5 May 2013. The Notice stated that, because the only ground for divorce under the Family Law Act 1975 (Cth) is that the marriage has broken down irretrievably, and the Family Court must be satisfied parties to the marriage have been separated for at least twelve months and one day, the delegate was satisfied that the answer the applicant had given in the Application Form that she and the sponsor were in a loving and genuine relation was incorrect.
18. The Notice further stated that, contrary to s.104 of the Act, the applicant failed to inform the Department of a change in circumstances that had rendered incorrect an answer the applicant gave in the Application Form. The change in circumstances was the applicant and the sponsor had divorced, and this change in circumstances rendered incorrect the answer the applicant had given in the Application Form that the applicant and sponsor were married.
19. In a statutory declaration the applicant made and provided to the delegate in response to the Notice, the applicant stated she fully complied with s.100 and s.104 of the Act.^[11] The applicant claimed that she and the sponsor had been living together “up until end of February 2013 without separation on a permanent basis”; and it was not until the end of February 2013 that the sponsor suggested he and the applicant divorce. The applicant said “[a]fter a week’s consideration, I agreed”. The applicant also said that she obtained the application form for the divorce which stated that the separation date was 1 March 2011. The applicant said “[t]his was not correct”. The applicant said that “[a]s I have no knowledge of English, I could not read the form and don’t know any contents in the form”. The delegate did not accept the applicant’s claims, and, by notice dated 14 September 2017, the delegate cancelled the Partner visa.

Before the Tribunal

20. On 21 September 2017 the applicant applied to the Tribunal for review of the delegate’s decision. On or shortly after 13 October 2017 the Tribunal received a document titled “Certificate and Notification Regarding Disclosure of Certain Information to Administrative Appeals Tribunal Under s375A of the Migration Act 1958” (375A Certificate). Section 375A of the Act provides:
    • (1) This section applies to a document or information if the Minister:
      • (a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or 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 375(a) or (b)); and
      • (b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
    • (2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
      • (a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
      • (b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
21. The Certificate, which is dated 21 September 2017, and is signed by a delegate of the Minister, certifies as follows:
    • I certify that in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Administrative Appeals Tribunal of the information contained in folios 1-8, 11p-5, 93-99 of file number [insert file number], would be contrary to the public interest because:
      • (a) Folios 1-8: contain the Departmental Priority Caseload Assessment document, this contains sensitive internal Departmental data such as Movement Alert (MAL) records, screen shots of internal databases that are not authorised for public record, as well as information pertaining to third parties who are not directly involved in the cancellation record (ie. Ms SHEN’s former husband’s current partner). This information is to be protected under s375A.
      • (b) Folios 11-65 contain two separate allegations received by the Department by members of the Australian public, and contain detailed information that, if released would be a breach of the sources [sic] privacy, to which the Department owes a duty of care. It is also noted that the information contained within the allegations was not used in the issuing of the NOICC or in the decision record as the alleged information could not be proven. Due to the sensitivity of the information, however, and in the interests of protection the courses’ privacy, I request this documentation be protected from further disclosure under s375A.
      • (c) Folios 93-99 contain internal processing notes for a visa application that is still undergoing processing. The application is a sponsored partner visa application for [Mr W], whom Ms Beilin SHEN is currently sponsoring. These notes are not authorised for public disclosure and I have not been given permission from the Partner processing team to release this, therefore it is requested that his be protected from further disclosure under s375A. This information was accessed by myself to assist me in ascertaining the visa holder’s present circumstances.
    • As s 375A applies to the document(s)/information identified above, the AAT must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the AAT, pursuant to s375A(2)(b) of the Migration Act 1958.
22. By letter dated 7 December 2017 to the applicant (359A Letter),^[12] the Tribunal provided two sets of particulars of information the Tribunal stated would be, subject to the applicant’s comments or response, the reason or part of the reason for affirming the decision under review. The first class of particulars sets out information the applicant had provided to the Department, both in the Application Form and on 12 July 2012, and there being a divorce certificate showing that the applicant and sponsor divorced in 2013, and that, in an application form for that divorce they signed and filed with the Family Court of Australia, the applicant and the sponsor stated they separated on 1 March 2011, and that since the date of separation the applicant and the sponsor regarded their marriage as over. The Tribunal said this information was relevant because if the information in the divorce certificate is true, the applicant and her sponsor were no longer spouses since March 2011 before the applicant was granted a 801 Partner visa. The Tribunal further said the Tribunal might find that the applicant filled or completed the Application Form in a way that incorrect answers were given, and that the applicant’s separation from her husband constituted a change in circumstances so that an answer the applicant gave in the Application Form became incorrect.
23. The second set of particulars the Tribunal identified is an allegation the Department and the Tribunal received that the applicant is involved in visa fraud. The Tribunal stated the allegation suggests the applicant arranges Australian partners for those seeking to obtain Australian permanent residence; the applicant arranges partner visa applications and documents in support of such applications; and that the applicant charges high fees for the service. The Tribunal said that the allegation is quite detailed, and refers to the applicant’s full name, date of birth, “current and future address”, passport number, and mobile number, suggesting that the person who provided the information knows the applicant well. The Tribunal also stated that the allegation includes a number of what appear to be receipts issued by the applicant, some of which refer to “visa application fee”, and contracts that appear to have been signed by the applicant. The Tribunal said that this information is relevant because, if accepted, the Tribunal may find that the applicant is not a person of credibility, and that she engages in visa fraud and otherwise illegal conduct. The Tribunal might, therefore, conclude that the applicant’s own application for a partner visa “was fraudulently based and that you never had a genuine relationship with” the sponsor.
24. The applicant responded by providing a document headed “Witness Statement of Beilin Shen”,^[13] together with a number supporting documents. In relation to the particulars of information that suggested the applicant had separated from the sponsor in March 2011, the applicant claimed that that date was incorrectly recorded in the application form for divorce. The matters on which the applicant relied for that claim are set out in a letter dated 13 November 2017 from the applicant’s lawyers to a Ms L which makes the following allegations:^[14]
    1. At all material times from late February 2013 to late July 2017 Ms L acted on behalf of the applicant in relation to the “preparation and filing of a divorce application between” the applicant and the sponsor, and in relation to an application for a partner visa on behalf of the applicant’s current husband.
    2. Ms L was a registered migration agent, but she represented to the applicant that “the scope of” Ms L’s services “extended to the provision of legal services, namely, completing and filing divorce applications”. Ms L had never been admitted as a solicitor or legal practitioner.
    100. The services Ms L provided to the applicant in relation to the divorce application “were not in accordance with Mrs Shen’s instructions”. The applicant instructed Ms L that she and the sponsor were in a committed relationship until February 2013 when she and the sponsor quarrelled and agreed to separate. The applicant did not instruct Ms L that she and the sponsor had separated on 1 March 2011.
    4. Ms L completed the application for a divorce in the manner that she did because Ms L agreed with the applicant that Ms L would not be entitled to keep any of the service fee the applicant paid to Ms L unless the divorce application was successfully processed by the court.
    5. At no time before the application for divorce was filed did Ms L show the applicant any page of the application “aside the execution”. Nor did the applicant at any time “witness, read or understand the contents of the” application for the divorce.
    6. The applicant first became aware Ms L completed the application for divorce contrary to her instructions when the applicant received the Notice on 17 July 2017.
25. As to the allegation of visa fraud, the applicant, in her witness statement, noted that the 359A Letter “was accompanied by a Certificate under s375A of the Act”. The applicant said:
    • I deny any involvement in arranging Australian partners for those seeking to obtain Australian permanent residence, or that I arrange, or am involved in, Partner visa applications and documents in support of such applications.
    • I am of the belief that [Ms L], a registered migration agent whom I threatened to report to the Office of Migration Agents Registration Authority (OMARA) for her conduct in managing my Application for Divorce, and who has access to all my personal details, has prepared such document and has provided them to the Department on a date after I caused the letter referred to at paragraph 10(b) above to be sent to her.
    • I cannot speak, read or write English, nor do I know how to apply for a partner visa and documents in support of a partner visa.
26. The applicant attended a hearing before the Tribunal to give evidence and present arguments. The Tribunal informed the applicant that there was an allegation that she had been involved in visa fraud and getting paid for it. The applicant responded that she has never done such things, and that Ms L was retaliating against the applicant. The Tribunal member then appears to have shown the applicant a document and asked her questions. That is apparent from the following passage of the transcript of the hearing before the Tribunal:^[15]

SENIOR MEMBER: (Indistinct). That documentation, Ms Shen, can you tell me what that is?

INTERPRETER: I’m not sure.

SENIOR MEMBER: Well, it has your signature on it I believe. It has your personal details I believe, so why are you not sure what it is?

INTERPRETER: I’m not aware what it is.

SENIOR MEMBER: Can you tell me about that specific document is [sic], which I showed you, Ms Shen?

INTERPRETER: I have never seen this document before.

SENIOR MEMBER: All right, so why don’t you read it and tell me what you think it is. Ms Shen, go back to that document, please, and tell me what it is. Ms Shen, read it to yourself and tell me what you think it is.

INTERPRETER: I have never read this before.

SENIOR MEMBER: I’m asking you to read it now and tell me what you think this is.

INTERPRETER: I don’t know. I don’t know.

SENIOR MEMBER: Well, you can read Chinese presumably, can you read it and tell me what you this is?

INTERPRETER: It’s a deal.

SENIOR MEMBER: Yes, between whom and whom? Does it have your name on it?

INTERPRETER: Yes, there is my name.

SENIOR MEMBER: So (indistinct) the document?

INTERPRETER: But it’s not my signature.

SENIOR MEMBER: Really?

INTERPRETER: Yes.

SENIOR MEMBER: And is it your fingerprint? Ms Shen, if you want me to send this for verification, if you want me to make further inquiries I will, it sounds to me like this is your document and I’ve got more of these documents, which are your documents.

INTERPRETER: But it’s not mine.

Tribunal’s Reasons

27. The Tribunal found the applicant was not in a genuine spousal relationship with the sponsor, at least by the time she was granted the 801 Partner visa; and the Tribunal found that the answers the applicant gave in the Application Form where she claimed to have been in a committed relationship with the sponsor were incorrect.^[16] The Tribunal relied on a number of matters.
28. First, for a number of reasons, the Tribunal found unconvincing the applicant’s explanations surrounding the circumstances in which she signed the application form for a divorce.^[17]
    1. The Tribunal did not accept the applicant was entirely unaware of the content of the divorce application. The Tribunal referred to the applicant having lived in Australia for ten years, and that after she arrived in Australia the applicant worked for a company and later in sales. Even if the applicant was incapable of reading the form, the applicant had the opportunity and perhaps the obligation to ask Ms L to read the document to the applicant. And if the applicant believed that she signed a document without being aware of its contents, that would suggest the applicant was entirely indifferent about her obligations and duty to provide truthful information. That, in turn, would suggest the applicant is not a person of credibility.^[18]
    2. The Tribunal was “concerned about the timing of these events”. That is a reference to the applicant and the sponsor deciding their relationship had irretrievably broken down less than five months after the applicant was granted a 801 Partner visa, and “the couple arranged the entire divorce in less than two weeks”. The Tribunal found that “a much more likely explanation is that this relationship was never genuine, or was no longer a committed one by the time the applicant was granted the permanent visa, and the couple simply waited for a period of time after the grant of the visa to officiate the divorce”.^[19]
    100. The Tribunal found the applicant had been engaged in “extensive visa fraud”. The Tribunal relied on the allegation of fraud the Department had received, and in particular, the detailed information provided in support of those allegations “suggesting the writer knows the applicant well”. The Tribunal also relied on the applicant’s not providing the required number of documents containing her signature to permit the Department’s Document Examination Unit to examine the signature of documents that the allegation suggested were those made by the applicant.^[20]
29. Second, the Tribunal found “unconvincing” as evidence of the date of separation that the applicant has applied to this Court for a declaration that her separation with the sponsor occurred on 13 February 2013.^[21]
30. Third, there is little evidence that the sponsor is the father of the applicant’s child and, for that reason, the applicant’s having a child does not signify a genuine and committed relationship between the applicant and the sponsor before its breakdown.^[22]
31. Fourth, at the hearing before the Tribunal the applicant said she had evidence of an ongoing relationship with the sponsor, including a joint bank account and parents’ visits dating after September 2012. The Tribunal, however, found it “problematic” the applicant had not presented any evidence of the relationship between her and the sponsor before the hearing, but only did so after the hearing, and at the Tribunal’s request.

Judicial review proceeding

32. The applicant relies on the following grounds of application stated in the amended application filed on 12 December 2018:
    • 1. The second respondent failed to comply with its obligation under s 359A of the Act to give to the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.

Particulars
(a) The second respondent failed to provide the applicant with particulars of information set out in documents referred to in a certificate purportedly issued by the first respondent under s 375A of the Act on 13 October 2017 (the s 375A certificate), such documents being at folios 1-8, 11-65 and 93-99 of an unidentified file number.
(b) The second respondent erroneously relied on the s 375A certificate when deciding not to provide the particulars of information referred to above because the s 375A certificate was invalid since it failed to identify any file number to which the identified folios related.
2. The second respondent failed to carry out its task to review the first respondent’s decision under s 348 of the Act, by failing to take account of or make findings on a critical issue.
Particulars
(a) The second respondent, at [54], purported to take account of international family unity principles and the best interests of the child when decision whether to affirm the cancellation of the applicant’s visa.
(b) When considering the above matters, the second respondent failed to take account of, or make findings on, the relevance of the biological relationship between the applicant and her child.
The documents and their asserted relevance

33. The documents (Documents) the Minister claims are subject to public interest immunity are those that are identified in a notice of objection the Minister filed on 31 October 2018. The Minister filed the notice of objection in response to the subpoena for production issued on the application of the applicant which called for, among other things, a “copy of all documents held in relation to a decision to cancel a subclass 801 visa formerly held by the applicant, including all documents on” the file identified in the subpoena.
34. The notice of objection divides the Documents into four classes by reference to folio numbers. Three of the classes are documents that are covered by the 375A Certificate. The grounds stated in the notice of objection are as follows:
    • Folios 1-8, 9-10, 11-65, 93-99 in Department file . . . are subject to a claim of public interest immunity on the basis that the disclosure of the information would: disclose information provided by third parties to the Department that was provided on an expectation that the information would be kept confidential; and disclose the identity of a confidential document. Folios 1-8, 9-10, 11-65, 93-99 are also documents the subject of a non-disclosure certificate issued under s 375A of the Migration Act 1958 (Cth) by the Department dated 13 October2017.
35. The documents that comprise folios 11-65 are “Confidential Annexure A” to the affidavit of Mr Thomas, the Assistant Secretary, Border Intelligence Fusion Centre. The documents include a communication from a person who I infer is the informant (folios 64-65), documents bearing Chinese characters, receipts written in English, and bank statements (folios 28-63), an internal Departmental email (folio 27) attaching documents repeating the substance of allegations made by the informant (folios 19, 23-26), documents setting out the results of inquiries made of the Department’s systems (folios 18, 20, 21, 22), and pro forma documents which do not record anything (folios 11-17). The documents comprising folios 11-18 and 20-22 do not refer, or appear to relate, to the allegation of visa fraud, or to any documents relating to that allegation.
36. The balance of the Documents (folios 1-10 and 93-99) is contained in “Confidential Annexure SXHS-1” to the affidavit of Ms Jones, who is the Assistant Secretary, Character and Cancellation Branch in the Immigration Integrity and Community Protection Division within the Immigration and Citizenship Services Group of the Department. Folios 1-7 appear to be internal documents that were created in connection with the delegate’s decision to issue the Notice. The document that is folio 8 refers to allegations relating to visa fraud having been made to the Department, and identifies the informant. Folios 1-7 do not refer or relate to allegations of visa fraud. Nor do folios 9 and 10 or folios 93-99. Further, according to Ms Jones, only folios 1-8, and 93-99 are covered by the 375A Certificate, which means the 375A Certificate does not cover the documents comprised in folios 9-10.
37. Counsel for the applicant – who has not inspected the Documents - submits the Documents are or at least include the documents the Tribunal referred to in the passage from the transcript of the hearing I reproduced earlier in these reasons. That is, counsel submits the Documents include documents recording the allegations of visa fraud by the applicant, and documents of the sort the Tribunal put to the applicant containing what purported to be the applicant’s signature. Counsel for the applicant submits the Documents are relevant to the applicant’s case in two ways.
    1. First, the documents are relevant to paragraph (a) of the particulars to ground 1 of the amended application where it is claimed the Tribunal failed to give particulars to the applicant of the information contained in the documents on which it relied in finding that the applicant had engaged in visa fraud. Counsel submits that in order to make that case, the applicant needs access to all of the documents that were relevant to whether or not the applicant had engaged in visa fraud, and not only the documents the Tribunal showed to the applicant during the hearing.
    2. Second, the documents are relevant to paragraph (b) of the particulars to ground 1 of the amended application where it is claimed the 375A Certificate is invalid. Although counsel accepts that the documents are not relevant to determining whether the 375A Certificate is invalid, he submits the documents are relevant to assessing the materiality of the 375A Certificate’s being held to be invalid.
38. Counsel for the Minister did not submit the Documents, at least to the extent they are covered by the 375A Certificate, are not relevant. Counsel, however, submits that their relevance is of such a limited degree that their relevance ought not outweigh the public interest in ensuring the Documents retain their confidentiality.
39. Counsel for the applicant has assumed that the 375A Certificate covers all of the Documents, and that all of the Documents relate to the Tribunal’s findings that the applicant was engaged in visa fraud. In the light of my description of the Documents, however, these submissions are incorrect. The Documents consisting of folios 1-7, 9-18, 20-22, and 93-99 do not refer or relate to the allegation of visa fraud and, for that reason, cannot be relevant to ground 1 of the amended application for the reasons counsel for the applicant has submitted the Documents are relevant to that ground.

Injury to public interest if documents disclosed

40. The Minister relies on the affidavits of Mr Thomas (who addresses the documents comprised in folios 11-65) and Ms Jones (who addresses the documents comprised in folios 1-8, 9-10, and 93-99) for submitting that disclosure of the Documents would be contrary to the public interest.
41. Mr Thomas deposes that, based on his knowledge and experience in his role, the Department is often provided with information, such as letters or telephone calls, from third parties that is or may be relevant to a visa applicant’s eligibility to meet particular visa requirements for the grant of a visa, and that it is common for such third parties to withhold their identity or their contact details or to request that this type of information be concealed. Mr Thomas deposes that the Department relies on this sort of information when administering the Act. Mr Thomas also deposes that if the documents or the identity of the informant would be revealed, that would potentially compromise the safety and wellbeing of the informant, inhibit or diminish the ability of the Department to properly administer the Act, and perhaps expose the Department to an action for breach of confidence.
42. Ms Jones, in her affidavit, repeats in relation to folios 1-8, 9-10, and 93-99 the substance of what Mr Thomas has deposed in relation to folios 11-65. Ms Jones, however, refers to the Department’s using methods to investigate the possibility that visa applicants have provided the Department with fraudulent statements or documents, and that these methods include the use of the Department’s internal databases such as Movement Alert records, and cross-referencing an applicant’s details and claims against information collected from third parties that have been provided to the Department in confidence. Ms Jones deposes that if the documents comprised in 1-8, 9-10, and 93-99, they would have the consequences Mr Thomas deposes disclosure of the documents comprised in folios 11-65 would have. In addition, however, Ms Jones says that disclosure would:
    • make public internal investigatory and enforcement methods, databases and information (some of it provided on the basis of maintenance of confidentiality) currently only within the possession and knowledge of the Department, and which, if made public, would compromise the Department’s ability to investigate, process and enforce visa application cases, thereby hindering the administration of the Act.
43. Counsel for the applicant submits the affidavit on which the Minister relies does not establish that the allegations and documents on which the Tribunal relied for findings the applicant engaged in visa fraud were supplied to the Department on the basis that they remain confidential. That is a fair submission given counsel has not inspected the Documents. I have read the documents, however, and it is clear that the informant provided the information to the Department on condition that the information remains confidential (see folio 64). In those circumstances I am satisfied there would be a detriment to the public interest if documents revealing the identity of the informer and the information the informant provided were to be disclosed.
44. It is not the case, however, that the disclosure of all of the Documents will have this effect. As I have already noted, the Documents comprising folios 1-7, 9-18, 20-22, and 93-99 do not refer or relate to allegations made or documents provided for by the informer. For that reason, the disclosure of these documents would not be detrimental to the public interest for that reason.
45. Counsel for the Minister submitted that the disclosure of those of the Documents that do not refer or relate to the allegation of visa fraud (being the documents comprising folios 1-7, 9-18, 12-22, and 93-99) are subject to public interest immunity because, if they are disclosed, they will reveal internal investigatory and enforcement methods, databases and information currently only within the possession and knowledge of the Department, and which, if made public, would compromise the Department’s ability to investigate, process and enforce visa application cases, thereby hindering the administration of the Act.
46. I am not satisfied that the disclosure of the Documents comprising folios 1-7, 9-18, 20-22, and 93-99 would have this effect. That, however, does not mean there is a legitimate forensic purpose to their being produced. On their face, these documents do not appear to be relevant to the grounds raised in the amended application.

Injury to the administration of justice if documents not disclosed

47. Counsel for the applicant submits the public interest in the administration of justice will be impeded if the Documents are not disclosed because the Documents are relevant in the manner I have already set out counsel for the applicant submits the Documents are relevant. Counsel for the Minister, on the other hand, submits it is unnecessary for the applicant to have access to the documents to make good the matters stated in ground 1. Counsel for the Minister submits that whether or not the Tribunal gave adequate particulars of the information on which the ground alleges the Tribunal relied is a matter the applicant could establish without having access to the Documents. Counsel relies on my judgment in SZTYV & Anor v Minister for Immigration & Anor.^[23]
48. On first impression the submission that counsel for the applicant makes that the Documents are relevant to the matters claimed in paragraph (a) of the particulars to ground 1 is persuasive. Ground 1 claims the Tribunal failed to give particulars of information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; and paragraph (a) of the particulars to that ground identifies the information of which the applicant claims Tribunal failed to give particulars, that information being information contained in the documents covered by the 375A Certificate. On first reading, it appears almost self-evident that the applicant requires the production of the documents covered by the 375A Certificate, because it is only by the applicant’s having access to those documents that she would be able to establish whether the Tribunal gave particulars of the information contained in the documents. On closer analysis, however, things are different.
49. During the hearing I asked counsel for both parties whether paragraph (a) of the particulars to ground 1 can fairly be said not to particularise the information it is claimed the Tribunal considered would be the reasons or part of the reasons for affirming the decision to cancel the 801 Partner visa and, if so, whether that would be relevant to the determination of the Minister’s claim for public interest immunity. Counsel for the Minister submitted the information stated in ground 1 was unparticularised, but counsel did not wish to make anything of it. Counsel for the applicant, on the other hand, submitted the information paragraph (a) of the particulars to ground 1 alleges the Tribunal did not consider is particularised, and it is particularised by the claim that it is the information contained in the documents covered by the 375A Certificate.
50. In my opinion, ground 1 of the amended application does not identify the information contained in the documents covered by the 375A Certificate, particulars of which the applicant claims the Tribunal failed to provide to her, contrary to s.359A of the Act. The ground does no more than identify things which records information the applicant does not otherwise identify. The applicant’s purpose in seeking access to the documents covered by the 375A Certificate, therefore, cannot be said to be to obtain documents to prove the existence of information the applicant claims the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision to cancel the 801 Partner visa but in relation to which the Tribunal failed to comply with s.359A of the Act. In these circumstances, the administration of justice will not be frustrated or impaired if the documents covered by the 375A Certificates, at least to the extent they relate to the allegation of visa fraud, are withheld; and that is because the effect of withholding those documents would be no more than to deny the applicant access to documents the production of which the applicant seeks to support a case she has not particularised. That cannot be contrary to the public interest in the due administration of justice because a party is not permitted to compel the production of documents unless the applicant has stated some case or defence to which the documents may be relevant.
51. There is an additional matter to note. In the 359A Letter the Tribunal purported to give particulars of information relating to two items of information, one of which related to the visa fraud alleged against the applicant, which the Tribunal said would be the reason or part of the reason for affirming the delegate’s decision. The applicant does not, however, claim that the Tribunal’s purported provision of particulars of that information did not comply with s.359A of the Act. In those circumstances it is difficult to see what relevance the documents covered by the 375A Certificate could conceivably have. For this reason also, the interests of the administration of justice will not be frustrated or impaired if those documents, at least to the extent they relate to the allegation of visa fraud, are withheld.
52. I next turn to the relevance of the documents covered by the 375A Certificate to paragraph (b) of the particulars to ground 1. In my opinion, the production of the documents are not relevant to determining the question of materiality, should the applicant succeed in her claim that the 375A Certificate is invalid. The materiality of the invalidity of the 375A Certificate could only operate by reference the Tribunal’s reliance on the 375A Certificate; and given the 375A Certificate relates to the documents it covers, the materiality of the Tribunal’s reliance on the 375A Certificate could only operate by reference to the Tribunal relying on the documents the 375A Certificate covered in circumstances where it did not disclose or did not disclose to a greater degree than it did the contents of the documents that were covered by it. It is obvious from the 359A Letter and from the passage from the transcript of the hearing before the Tribunal that the Tribunal relied on at least some of the documents covered by the 375A Certificate. In those circumstances, there would be no need for the applicant to have access to the documents to establish that the Tribunal relied on at least some of the documents covered by the 375A Certificate.

Balancing of competing interests

53. In the light of my conclusion that the administration of justice will not be frustrated or impaired if the documents covered by the 375A Certificate are withheld, at least to the extent they relate to the allegation of visa fraud, it is not necessary to undertake any balancing exercise. If, however, contrary to my findings, the administration of justice will be impaired by the withholding of such documents, the public interest in withholding the documents outweighs the public interest in granting the applicant disclosure. One the one hand, disclosure of the documents will reveal the identity of the informer and the material the informer provided to the Department in circumstances of confidence. On the other hand, withholding the documents will deprive the applicant of what on the material before me may be characterised as no more than a speculative chance of identifying information which the Tribunal considered would be the reason or part of the reasons for affirming the delegate’s decision to cancel the 801 Partner visa, but in relation to which the Tribunal did not comply with s.359A of the Act. Further, withholding the documents will not raise any reasonable risk that, if the applicant establishes that the 375A Certificate is invalid, she would be unable to prove that the Tribunal relied on the invalid 375A Certificate, and that its reliance was material to its decision.
54. Given I am not satisfied that the disclosure of the documents covered by the 375A Certificate that do not relate to the allegation of visa fraud (being the documents comprising folios 1-7, 9-18, 20-22, and 93-99) will not adversely affect the public interest, there is no need to undertake any balancing exercise in relation to those documents. If, however, contrary to my conclusion, there would be a public detriment in disclosing the documents, the public interest in withholding the production of those documents would outweigh the public interest in the administration of justice because, at most, the effect of withholding the documents will be no more than to deny the applicant access to documents she seeks to support a case she has not particularised.

Conclusion and disposition

55. The Minister succeeds on his claim in relation to those of the Documents comprised in folios 8, 19, and 23-65 of the Documents are subject to public interest immunity. I propose to order, therefore, that the notice of objection is upheld to the extent the objection relates these documents.
56. Given I have found that documents comprising folios 1-7, 9-18, 20-22, and 93-99 are not relevant or apparently relevant, I will reserve to the Minister liberty to apply to set aside the subpoena to the extent it calls for the production of these documents. I will also reserve the question of the costs of the objection to production.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 8 March 2019

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^[1] [1984] HCA 85; (1984) 154 CLR 404, at page 412; [1984] HCA 85, [4]
^[2] Commonwealth v Northern Land Council [1993] HCA 24 [31]. The quote in the passage is from Ligertwood, Australian Evidence, (1988), page 224.
^[3] R v Tastan (1994) 75 A Crim R 498, page 504, quoted with approval by Brownie AJA in NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22] (Spigelman CJ and Ipp AJA agreeing).
^[4] [2014] FCAFC 120, [12] (authorities omitted)
^[5] (1985) 3 NSWLR 230, page 247
^[6] [2018] HCA 58, [12]
^[7] R v Mason [2000] SASC 161, [26]
^[8] R v Mason [2000] SASC 161, [27]
^[9] [1997] FCA 642
^[10] Cases omitted
^[11] CB90-91
^[12] CB133
^[13] CB157
^[14] CB162
^[15] T12 – The transcript is annexed to the affidavit of S. Hu.
^[16] CB263, [32]
^[17] CB258, [12]
^[18] CB258-259, [13]
^[19] CB260, [19]
^[20] CB260, [20], [21]
^[21] CB260-261, [22]
^[22] CB261, [24]
^[23] [2018] FCCA 64