Burton v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against a decision of Lloyd-Jones FM in respect of an application to review a decision of the Migration Review Tribunal ('the Tribunal'). The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), to cancel a Partner (Migrant) (Class BC) visa held by the appellant, Warijachi Devi Burton. 2 Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the appeal be heard and determined by a single judge. The visa cancellation decision 3 The appellant is a national of Fiji. She has three sons, all of whom are now adults. On 7 January 2000, the appellant was granted a Class 100 (Spouse) visa on the basis of a claimed spousal relationship with Stephen Burton, an Australian citizen. Pursuant to that visa, the appellant entered Australia on 6 February 2000. She was accompanied by two of her sons. The third son joined his mother and brothers shortly afterwards. 4 On 27 April 2001, the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') received an allegation that the marriage between the appellant and Mr Burton was contrived. The Department undertook an investigation. On 14 January 2003, a Departmental officer, Sharon Kennedy, notified the appellant, pursuant to s 107 of the Migration Act 1958 (Cth) ('the Act'), that it considered she may have not have complied with ss 101, 102, 104 and 105 of the Act. 5 In her letter of 14 January 2003, Ms Kennedy set out the terms of those sections. They read as follows: '101. A non-citizen must fill in his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given. 102. A non-citizen must fill in his or her passenger card in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given. 104. (1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them. (2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances before the visa is granted. (3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared. (4) Subsection (1) applies despite the grant of any visa. 105. (1) If a non-citizen becomes aware that: (a) an answer given in his or her application form; or (b) an answer given in his or her passenger card; or (c) information given by him or her under Section 104 about the form or card; or (d) a response given by him or her under Section 107; was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. (2) Subsection (1) applies despite the grant of any visa.' 6 Ms Kennedy noted that, in the appellant's initial visa application, she declared the information supplied on the application form to be 'complete, true and up-to-date in every detail', that she 'did not marry … to become eligible for migration to Australia' and that she was aware she must inform the Australian mission in Fiji of any change in relevant circumstances. 7 Ms Kennedy stated that the appellant had been asked to provide evidence that her 'relationship with Stephen Burton was genuine and continuing' and that the visa had been issued on the basis of the evidence provided. She said: 'Information held by the Department also indicates that you were not in a genuine and continuing marital relationship with Stephen Burton when you were granted the sub-class 100 visa.' 8 Ms Kennedy also noted that the appellant had departed and arrived back in Australia several times since her initial entry and that, on an Incoming Passenger Card dated 11 September 2002, she had given a negative answer to the question: 'Do you have any criminal convictions?'. Ms Kennedy said the Department had information that the appellant had been convicted in Australia of shoplifting. Ms Kennedy went on: 'Based on the information before me, I am of the opinion that you may have provided incorrect information on your application and other documents provided as part of your application, lodged with the Department on 7 July 1997. In particular, you may have failed to provide information to the Department about the true nature of your relationship with Stephen Burton. Hence this leads me to believe that you may not have complied with Sections 101, 104 and 105 of the Migration Act. I am also of the opinion that you may have provided incorrect information on your Incoming Passenger Card on 11 September 2002. Hence this leads me to believe that you may not have complied with Section 102 of the Migration Act. If you did not comply with Sections 101, 102, 104 and 105, your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply.' 9 Section 107 of the Act requires that, if the Minister considers that a visa holder who has been immigration cleared did not comply with (inter alia) s 101, s 102, s 104 or s 105 of the Act, the Minister may give a notice containing certain specified material. The specified material includes 'particulars of the possible non-compliance': see s 107(1)(a). One of the issues raised by the appellant is whether the notice given by Ms Kennedy satisfied this requirement in relation to the appellant's relationship with Mr Burton, although not in relation to the Incoming Passenger Card. 10 The appellant responded to Ms Kennedy's letter by supplying a submission and a number of statutory declarations. On 30 June 2003, after interviews with several people, including the appellant, the delegate cancelled the appellant's then current visa. The delegate made this decision on the basis that the appellant 'provided incorrect information with her Application and failed to advise the Department of the incorrect information'. The delegate said, in relation to the appellant's non-compliance with s 102: 'I acknowledge that she would still have been entitled to be immigration cleared'. The Tribunal's decision 11 The appellant sought review of the delegate's decision to cancel her visa. On 3 March 2004, after an oral hearing, the Tribunal affirmed the delegate's decision on the basis that the appellant had breached s 101 of the Act. The Tribunal was not satisfied that the appellant had breached s 102 of the Act in relation to her Incoming Passenger Card. In his reasons for decision, the Tribunal member summarised his conclusions in this way: 'The Tribunal concludes as follows: • The Tribunal is satisfied to a high degree that the review applicant and the nominator were never in a genuine spousal relationship; • The visa application completed by the review applicant and lodged on 7 July 1997 was untruthful insofar as it was stated the review applicant was in a spousal relationship with the nominator, and the review applicant was aware she was not in such a relationship with him; • Section 101 of the Act was breached by the review applicant; • There was power to cancel the review applicant's subclass 100 visa under section 109 of the Act; • Following consideration of the material contained in the abovementioned files and of the evidence given at the hearing, as well as having regard to prescribed circumstances in Regulation 2.41, the Tribunal is satisfied, to a high degree, that the reasons for not cancelling do not outweigh the reasons for cancelling the visa; and • The delegate's cancellation decision ought to be affirmed.' 12 As a result of its decision in respect of the appellant, the Tribunal also cancelled the visas held by her three sons. The magistrate's decision 13 The appellant commenced a proceeding in the Federal Magistrates Court of Australia, under s 39B of the Judiciary Act 1903 (Cth), seeking prerogative and injunctive relief in relation to the Tribunal's decision. 14 The filed application set out numerous grounds, not all of which were pressed at the hearing of the matter. Shortly prior to that hearing, the appellant served on the respondent Minister a Notice to Produce the following documents: 'All records, including but not limited to statements, or notes of interview or diary entries of all allegations alleged to be confidential but limited only to those, if made by any of the three Burtons including the following: (a) The initial allegation on 27 April 2001; (b) The interview with Lionel Burton and Saraswati Burton on 6 May 2003; (c) The statutory declaration allegedly completed by Lionel Burton; (d) The applicants seek production of these documents only if made by any of the Burtons and say that in such circumstances the information could not be withheld as confidential; (e) The Department's telephone call received from the applicant's husband in which he allegedly stated that he was withdrawing support for the application; (f) The letter received by the Department on 14 May 2004 in which it is alleged that he withdraws his support; and (g) The notes of various addresses at which it is alleged Mr Burton is to have been living and the periods during which it is alleged he had been living at these addresses.' 15 In response to this notice, the respondent filed an affidavit of Andrew John Crockett, a solicitor, annexing certain documents. They included a copy of a document signed by Ankica Ruscic, as a delegate of the Minister, dated 14 July 2003. This document purported to be a certificate under s 375A of the Act. That section reads as follows: '(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.' 16 Ms Ruscic's certificate read as follows: 'CERTIFICATE REGARDING THE MIGRATION REVIEW TRIBUNAL'S DISCRETION IN RELATION TO DISCLOSURE OF CERTAIN INFORMATION UNDER SECTION 375A OF THE ACT In accordance with S375A of the Migration Act 1958, I certify that the disclosure, otherwise than to the Migration Review Tribunal, of any matter of information contained in folio 35 of Departmental file CLF2003/35811 and folios 3, 16 to 17, 30 to 41, 65 to 86, 95, 127 to 131, 133 to 136, 146, 151 and 158 of the Departmental file CLF2001/30025, would be contrary to the public interest because: • Documents or information provided by State government agency; or • Documents or information provided by other Commonwealth agencies, in respect of which that agency contends that its disclosure to the applicant would be contrary to the public interest; or • Documents affecting personal privacy The documents or information referred to in the paragraph above must only be disclosed to the Migration Review Tribunal.' 17 Mr Crockett's affidavit also annexed a copy of a letter, of the same day, from Ms Kennedy to the Deputy Registrar of the Tribunal forwarding a copy of Ms Ruscic's document. In her letter, Ms Kennedy referred to this document as a certificate under s 375A of the Act and said: 'Accordingly, you are required to do all things necessary to ensure that the relevant information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the particular review.' 18 When the matter came before Lloyd-Jones FM for hearing, Ms A Cotter-Moroz, counsel for the appellant, raised an issue as to the respondent's failure to comply with the Notice to Produce. She argued the document signed by Ms Ruscic did not satisfy the requirements of s 375A of the Act; consequently, this document did not excuse the respondent's failure to comply with the notice. Mr R Beech-Jones, counsel for the Minister, argued the certificate was valid. After some discussion, Lloyd-Jones FM decided to deal with this issue in conjunction with the other issues intended to be raised by the appellant. After argument about those issues, Lloyd-Jones FM reserved his decision. 19 On 9 June 2005, Lloyd-Jones FM handed down a written judgment in which he dismissed the proceeding with costs: see Burton v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 104. In that judgment, the learned magistrate discussed the eight grounds of review that had been argued before him. I will refer to his Honour's reasoning in relation to the grounds that were pressed before me when discussing those grounds. I will discuss the grounds in a different order to that adopted in the application or notice of appeal. The validity of Ms Kennedy's notice 20 Ms Cotter-Moroz argued before Lloyd-Jones FM that the s 107 notice issued by Ms Kennedy was defective because it failed to provide adequate particulars of the alleged possible non-compliance with ss 101, 102, 104 and 105 of the Act in respect of the appellant's relationship with Mr Burton. The magistrate accepted that the notice failed to provide the necessary particulars but held this omission was excused by 'the confidential nature of the information before the Tribunal'. He said at [103]-[104]: 'The absence of any particularisation was completely necessary in the circumstances in order to maintain the confidentiality of the information supplied to the delegate under the confidentiality regime. This agenda was not stated in the s.107 Notice but was confirmed by the s.375A certificate. Any particulars provided in the s.107 Notice would have undoubtedly disclosed information that was confidential in nature and later the subject of the s.375A certificate. Had there been no s.375A certificate, the s.107 Notice would have needed further particularisation. However, it is my opinion that the s.107 Notice, as it stands cannot be any more specific than it currently is without breaching the confidentiality regime of the department. Like grounds 1, 2, and 5, this ground hinges on the s.375A certificate and in light of my findings on the question of its validity and effectiveness as set out above, this ground must fail.' 21 In argument before me, Ms Cotter-Moroz criticised this reasoning. She pointed out that Ms Kennedy's letter was written seven months before Ms Ruscic's certificate was issued; consequently, the certificate could not excuse non-compliance with s 107. 22 Mr S Lloyd, who appeared for the respondent before me, accepted that Lloyd-Jones FM erred 'in considering that the later issuance of a s 375A certificate has any consequences for compliance with s 107'. However, in reliance upon a Notice of Contention filed by his client, he argued the particulars of non-compliance were adequate. He noted that s 107 does not require particulars of the information relied upon by the delegate, unlike other cancellation provisions such as s 119(1) of the Act, but only of the possible non-compliance. 23 I agree with Mr Lloyd on this issue. 24 The subsequent issue of a s 375A certificate could not affect the obligation of the Minister's delegate to comply with s 107(1)(a). Nor, with respect to the learned magistrate, is there any justification for importing into the obligation imposed by that paragraph a non-statutory exception in relation to information of a 'confidential nature'; whatever those words mean in this context. The statutory requirement is clear. Particulars of the possible breach must be supplied. 25 I agree with the view expressed by Allsop J, in Saleem v Migration Review Tribunal [2004] FCA 234 at [43], that it is not enough for the giver of a s 107 notice to identify the sections of the Act thought to have been contravened. As his Honour said: 'Particulars of non-compliance with ss 101, 102, 103, 104, 105 or 107(2) are what is called for. One does not give particulars of non-compliance with s 101 by saying … that s 101 has not been complied with. It is the specifics (the particulars) of that non-compliance that are required to be given.' 26 However, in the present case, particulars of the possible contravention were supplied. The appellant was told there was a doubt as to whether she provided incorrect information on her application and other documents provided as part of her application; and, in particular, as to whether she failed to provide information to the Department about the true nature of her relationship with Mr Burton. This statement adequately particularised the possible non-compliance. It did not identify the material that had caused Ms Kennedy to entertain the doubts she expressed. However, as Mr Lloyd submitted, that was not required. The relationship between ss 359A and 375A of the Act 27 Section 359A of the Act concerns the Tribunal's obligation to provide information to an applicant for review. It reads: '(1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except when paragraph (b) applies - by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' There is no subs (3). 28 It will be noted that one of the exceptions to the obligation imposed on the Tribunal by subs (1) is in respect of 'non-disclosable information': see s 359A(4)(c). This term is defined, by s 5 of the Act, as follows: 'non-disclosable information means information or matter: (a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would: (i) prejudice the security, defence or international relations of Australia; or (ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or (b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or (c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence; and includes any document containing, or any record of, such information or matter.' 29 In Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 ('Davis'), Dowsett J held that a valid s 375A certificate overrides the obligation to provide particulars imposed by s 359A(1) of the Act. That was not because such particulars were 'non-disclosable information' within the meaning of s 359A(4)(c). His Honour noted that the definition of this term covered information protected from disclosure under ss 375 and 376 of the Act, but it did not cover information protected under s 375A. However, he held that circumstance was not determinative of the question. At [21], he said: 'It is curious that material which is the subject of a certificate under s 375A is not expressly excluded from the operation of s 359A. Nonetheless, the obligation to maintain secrecy imposed upon the Tribunal by s 375A is so specific that the obligation imposed by s 359A must give way to it. This would, in my opinion, be so, even in the absence of s 357A. However that section puts the matter beyond doubt. The obligation conferred upon the Tribunal by s 362A must similarly yield to that imposed by s 375A.' 30 Section 362A relevantly provides: '(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review. (2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information. …' Subsection (3) is not material to this case. 31 Ms Cotter-Moroz submitted to Lloyd-Jones FM that Dowsett J's analysis was flawed in relation to s 359A and that he should not follow Davis. 32 Lloyd-Jones FM responded to this submission by saying he did 'not hesitate in finding that Dowsett J's reasoning, being the reasoning of a superior Court, should be applied to the circumstances of the present case'. That was undoubtedly his proper course of action. However, Ms Cotter-Moroz renewed before me her attack on Davis. I am free to differ with the view expressed by Dowsett J, but I should not do so unless I am persuaded his Honour was clearly wrong. 33 In her argument before me, Ms Cotter-Moroz noted that s 362A(1) was expressly made subject to s 375A. Accordingly, she conceded that a valid s 375A certificate overrides the obligation expressed in that subsection. However, she said: 'It is respectfully submitted that the reasoning of Dowsett J in relation to the effect of a s 375A certificate upon the obligation of the Tribunal to give particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review pursuant to s 359A is erroneous because subsection (4) of 359A which specifically exempts certain information does not refer to section 375A. This is in stark contrast to section 362A.' 34 Ms Cotter-Moroz argued that s 375A has the effect of curtailing the rights of an affected party; consequently, clear words are required. She cited the statement of Gleeson CJ in Plaintiff S157/2000 v Commonwealth (2003) 211 CLR 476 at 492 ('Plaintiff S157/2000'): 'Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost but in the absence of express language or necessary implication, even the most general words are taken to be "subject to the basic rights of the individual.' 35 Ms Cotter-Moroz went on: 'Section 359A requires particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review to be provided. It is submitted that, when considered in the context of Division 5 of Part 5 in which section 359A is to be found, there is no ambiguity in the exemptions to particulars which must be provided pursuant to s 359A(4). The context of the legislative scheme in which section 359A is found, does not demonstrate a clear legislative intent to exclude the obligation to accord procedural fairness altogether in respect of such information or matter contained in a document the subject of s 375A. If there is any ambiguity in the omission of section 375A in s 359A, it should be resolved against the Tribunal since subs(4) operates to relieve the Tribunal from affirmative obligations imposed by section 359A(1) for the benefit of the appellant. Consistently with established principles, as referred to above, a construction should be adopted with [sic] preserves, rather than diminishes, that benefit. Further it is submitted that it is consistent with the purpose of section 359A, in providing procedural fairness, to take a narrow view of the exemptions in section 359A(4). In my submission it does not necessarily follow that simply because a section 375A certificate is issued, that the Tribunal is thereby relieved of its obligation to accord procedural fairness in respect of providing particulars of that information or matter in a document the subject of the certificate. In that regard, in the usual course the Tribunal will be able to ensure that an applicant is afforded an opportunity of responding to the gravamen of the allegations made without frustrating any legislative purpose in providing the information or matter in the document, disclosure of which the certificate protects.' 36 In the course of oral argument, I asked Ms Cotter-Moroz to identify the particulars which were not provided. She replied: 'We certainly weren't told about various addresses at which it is alleged that the nominator was staying separately from us. We certainly weren't given information about what transpired at an interview. About allegations made we certainly weren't given information. There was supposed to have been money that the appellant - there was an allegation that my client had paid some money across to the nominator and was going to pay a further sum to have him attend the interview. We weren't given any particulars about that, your Honour. This all came up during the course of the hearing and in relation to that, your Honour, it's my contention that they were all matters that were the reason or part of the reason for the Tribunal reaching the decision that it did and in accordance with the authority - the majority of the High Court authority in SAAP which applies to section 424A which is the analogous section in the Refugee Review Tribunal to this one we should have been given written particulars of all of that information.' 37 Shortly after this exchange, Mr Lloyd intervened to make two concessions: first, if the s 375A certificate was invalid, the Tribunal did not comply with s 359A of the Act; second, if the decision in Davis was wrong in respect of the relationship between s 375A and s 359A, the respondent did not contend the Tribunal had complied with s 359A. 38 As mentioned, Ms Cotter-Moroz accepted that s 362A(1) of the Act took away the right of a former visa holder to have access to material covered by a valid s 375A certificate. However, she said, there is a difference between being given particulars of information (as required by s 359A(1)) and being supplied with the information itself; the difference is similar to that between particulars of a civil claim and the evidence that supports the claim. Ms Cotter-Moroz commented: 'When viewed that way there is no inconsistency between 359A and what it requires and the fact that a valid 375A certificate has been issued'. The discussion went on: 'MRS COTTER-MOROZ: It is my submission that they can co-exist so the Tribunal can and should be able to discharge its obligation to give particulars of information without in fact disclosing any matter in a document or information the subject of the certificate. Can I just make further point on that before I leave. For example, it may be that a document contains three matters which specifically ought be protected but that does not necessarily mean that under section 359A particulars of other information or other matters in that document were they to form a reason couldn't be given to the applicant. HIS HONOUR: If there were three matters referred to in a document but only one of them could be a reason then you would be obliged, on your argument under 359A, to give particulars of that matter and you could be silent about the other two? MRS COTTER-MOROZ: Yes. HIS HONOUR: It is also perhaps a question of the degree of particularity too. You might say, it's alleged that you paid $5000 to the nominator to induce him to marry you but without providing the detail of his statement in which he sets that out.' 39 Mr Lloyd's written outline of submissions merely adopts the reasoning of Lloyd-Jones FM on this point. However, in oral argument, Mr Lloyd actively supported Davis. I asked him whether it is a possible answer to Dowsett J's view that there is a difference between evidence and particulars. Mr Lloyd responded: 'Well, I accept that there is a difference between evidence and particulars. But the duty in 375A on the Tribunal is a fairly stringent one: The Tribunal must do all things necessary to ensure that the document or information in context - that means the information on the documents or perhaps conceivably information not on documents - is not disclosed to any person other than a Member of the Tribunal. Now, in my submission, providing particulars of that information would disclose some of the protected information. So there is a conflict between the sections. That doesn't necessarily say that his Honour is right, but his Honour is right in at least coming to the conclusion, contrary to my friend's submission, that there is a conflict between them and then it becomes a question of statutory construction. My friend relies upon the fact that 362A says that it is subject to 375A and that 359A doesn't say that. Well, that is true, but, conversely, 375A doesn't say that it is subject to 359A. So the Court is faced with, in my submission, a context where there are two provisions which can impose when they are both activated apparently contradictory duties. In my submission the way the Court would do that in the normal way where - even bearing in mind that the Acts have been amended and 359A came in later than 375A - it is still a context where in the normal course the Court is required to consider the Act as a sort of sensible whole and so the position is much the same as if they were in just the same Act and enacted at the same time. In my submission the authorities indicate that the question then of possible implied repeal arises which raises for the Court the same question in substance as if there are just two competing, or apparently competing provisions in an Act and at the same time, in both instances, the Court should try and read them together and avoid conflict. In my submission, that isn't possible in this case because - well in my submission the duty to not disclose information on protected material is inconsistent with the duty under 359A. At least it can be if the information is not non-disclosable information, as is conceded to be the case in the present circumstances. HIS HONOUR: Well, what is the explanation of the reference to 375A not finding its way into subsection (4) of 359A? Just an oversight by the drafter, was it? MR LLOYD: Well, I suppose so, your Honour. I accept that it would have been better if it were there, however, the position remains that there is potential and this case throws up the potential, at least if the certificate is valid. 40 At para 29 above, I set out the whole of Dowsett J's reasoning, in Davis, on this point. His Honour did not advert to the distinction, drawn by Ms Cotter-Moroz before me, between the provision of 'particulars of any information' that the Tribunal considers would be a reason, or part of a reason, for affirming a delegate's decision (covered by s 359A(1)) and access to the written material itself (covered by s 362A(1)). There is a real distinction. I think it is analogous to the distinction, familiar to all litigators, between particulars of a claim and the evidence that supports the claim. The command of s 375A(2)(b) is that the Tribunal 'do all things necessary to ensure that the document or informationis not disclosed' otherwise than to the relevant Tribunal member. Provision of particulars about information need not reveal the information itself, and certainly need not involve access to any particular document. Take the example mentioned in argument. Suppose the Department has received a letter from a person who deposes to having seen a visa holder pay $5,000 to the relevant nominator on their wedding day. A valid s 375A certificate would prevent the Tribunal allowing the visa holder to have access to that letter, or providing detailed information about it, as would otherwise be the former visa holder's right under s 362A. However, it seems to me s 375A would not prevent the Tribunal informing the former visa holder, by way of particulars of the information that could constitute a reason, that it was alleged that he or she had paid $5,000 to the nominator on that day. Such particulars would not reveal either the source or the detail of the information conveyed to the Department; they would allow the former visa holder to understand the nature of the case he or she needed to meet. 41 If it had been intended to make the obligation contained in s 359A(1) subject to s 375A, one would have expected Parliament to say so. Parliament could readily have done this, either by inserting a reference to s 375A in the opening words of s 359A(1) or by adding an additional paragraph to s 359A(4). Neither of these things was done, despite the fact that s 375A was already in the Act when s 359A was enacted. 42 The principle discussed by Gleeson CJ in Plaintiff S 157 is long established and of great importance. The principle is that courts will import into statutes unexpressed provisions restrictive of individual rights and liberties only where it is impossible otherwise to give effect to a clearly-expressed policy of the Parliament. In the present case, it is possible simultaneously to give effect to the command, and the policy behind, s 375A and the policy and purpose of s 359A. I have hesitated in reaching a view different to that of Dowsett J, but I have concluded his Honour was clearly wrong in this aspect of Davis. Accordingly, I hold that, even if the s 375A certificate was valid, the appellant was nonetheless entitled to particulars under s 359A(1). The Tribunal fell into jurisdictional error in failing to provide those particulars. The validity of the purported s 375A certificate 43 The conclusion just expressed is sufficient to determine the fate of the appeal. It is not necessary, for that purpose, for me to deal with two other issues raised by Ms Cotter-Moroz in argument before me. However, as those points may arise before the Tribunal on the necessary rehearing, it is desirable for me to say something about them. 44 The first of the two issues is whether the certificate given by Ms Ruscic was a valid exercise of the power given to the Minister by s 375A of the Act. Ms Cotter-Moroz put two submissions in relation to this issue. First, she pointed out that s 375A applies both to 'a document' and to 'information'. The certificate must refer to the disclosure, otherwise than to the Tribunal, of 'matter contained in the document' or of 'information'. She noted that Ms Ruscic's certificate referred to 'any matter of information' contained in particular folios of the Department's file. Ms Cotter-Moroz argued this description confused the concepts of document and information. It did not amount to a certificate about the documents themselves, but only about the information they contained. And, she said, the certificate was not a valid exercise of the power to certify in relation to 'information' because, in the context of reference to both 'a document' and 'information', the Legislature must be taken to have been referring to non-written information. 45 I cannot accept Ms Cotter-Moroz's argument on this point. I see no reason to read down the meaning of the word 'information'. Even information that is conveyed orally to the Department is likely to be recorded in writing. 46 Ms Cotter-Moroz's second submission is more persuasive. She argued the certificate given by Ms Ruscic failed to comply with s 375A(1) of the Act because it failed to give any reason why disclosure would be contrary to the public interest. 47 Section 375A applies to a document or information that certifies that the disclosure (otherwise than to the Tribunal) of any matter contained in the document, or any information, 'would be contrary to the public interest for any reason specified in the certificate'. For the certificate to satisfy s 375A(1), the public interest reason must be specified in the certificate itself. 48 The certificate signed by Ms Ruscic (see para 16 above) did not specify the reason why disclosure of the information contained in certain folios of the Department's file would be contrary to the public interest. Ms Ruscic started encouragingly. After stating that disclosure would be contrary to the public interest, she used the word 'because'. That suggested she was about to set out a reason or reasons. However, the word 'because' was followed only by descriptions of three types of documents or information. The first two descriptions related to the provenance of documents or information; the third referred to documents 'affecting personal privacy'. Ms Ruscic did not state that any of the excluded documents fell into any of these three categories. Nor did she explain why it would be contrary to the public interest to exclude disclosure of all documents that fell within any of those three categories. Any such general proposition would be untenable. Take an example in relation to the first category. If a State government agency had provided information about somebody's title to real estate, which was a matter of public record, could it possibly be said it would be contrary to the public interest to disclose that information to the relevant visa holder? In relation to the second category of documents, the adoption of a general rule that it is contrary to the public interest to disclose particular information whenever the supplying Commonwealth agency so contends would be to subject the exercise of the s 375A power to the dictation of someone else. In relation to the third category, what is meant in this context by 'personal privacy'? Why would the protection of somebody's personal privacy necessarily mean there was a public interest in overriding the entitlement of the former visa-holder to access the information that might be used by the Tribunal against him or her in relation to a matter as significant as cancellation of a visa? 49 Mr Lloyd experienced difficulty in dealing with this aspect of the case. He suggested Ms Ruscic's certificate should be interpreted as saying that the protected documents fell into one or more of the identified three categories and as indicating a view, for example, that disclosure 'would be contrary to the public interest because, in effect, disclosure of such documents would, in effect, adversely affect personal privacy'. 50 Two comments are appropriate. First, if that is what the delegate thought, it would have been easy enough to say so. Second, that line of interpretation can hardly apply to the first and second categories identified by the delegate. 51 In reality, Ms Ruscic's certificate gave no reason at all. Accordingly, it did not constitute a valid exercise of the power conferred on the Minister by s 375A of the Act. 52 The terms of the certificate issued by Ms Ruscic suggest to me that Ms Ruscic followed a standard form of certificate routinely adopted by Ministerial delegates. If this suggestion is correct, it is a matter of concern. The statutory provisions in relation to the provision of information to persons whose visas have been cancelled supplant the procedural fairness rights those persons would have at common law: see s 357A of the Act. A decision to cancel a visa will ordinarily be of great importance to the affected person. Fairness requires that, to the maximum extent possible, having regard to what are truly matters of public interest, the former visa holder be given information about, and access to, the material that led to the cancellation decision and which may be taken into account on any review of that decision. A Ministerial delegate, who is considering the issue of a s 375A certificate, ought to bear these matters in mind and give anxious consideration to the question whether, in the particular case, there are really public interest reasons for refusing information and access. It was plainly the intention of Parliament that s 375A certificates not be issued as a matter of course or routine, but only where a delegate, having considered the circumstances of the particular case, could identify compelling public interest reasons for non-disclosure. The appellant's contribution to the community 53 Regulation 2.41 of the Migration Regulations 1994 (Cth) prescribes the matters that a decision-maker is to take into account in making a decision about cancellation of a visa on the ground of incorrect information. The prescribed matters include '(k) any contribution made by the holder to the community'. 54 On 10 June 2003, the appellant's migration agent wrote a letter to Ms Kennedy in which he stated that the appellant and her family members 'are all contributing to the Australian economy and to the community'. The agent did not specifically mention a work reference, dated 15 January 2003, which was apparently included amongst the file material sent by the Department to the Tribunal. This reference can only be described as 'glowing'. It indicated the appellant had quickly progressed from a menial to a supervisory position with oversight of ten other employees. The reference suggested the appellant had made a major contribution to the operation of that employer's business. 55 In his reasons for decision, the Tribunal member summarised the position in respect of each of the paragraphs in reg 2.41. When he reached para (k), concerning any contribution made by the appellant to the community, the Tribunal member wrote: 'There is no information before the Tribunal in this regard.' 56 Before Lloyd-Jones FM, Ms Cotter-Moroz argued the Tribunal had fallen into jurisdictional error by failing to take into account a relevant consideration. Mr Beech-Jones accepted that the work reference had been before the Tribunal but he referred to a comment of Gummow J, in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479, about the court not studying 'administrative decisions too finely or precisely' or regarding them 'over zealously in pursuit of error'. 57 Lloyd-Jones FM accepted that submission. At [73] he said: 'I accepted the respondent's submissions that the Tribunal's finding that "[t]here is no information before the Tribunal in this regard" was a finding that there was no information or evidence of sufficient probative value. In accordance with the authority in Broussard, the Tribunal was entitled to make such a finding in view of the scant information before it in support of the applicant's contribution to the Australian economy and community.' 58 At the hearing of the appeal, Mr Lloyd supported this reasoning. 59 There is no doubt about the principle enunciated by Gummow J in Broussard. The principle was well-established at that time and was subsequently endorsed by the High Court of Australia, in Minister for Immigration and Ethnic Affairs v Wu Shiang Liang (1996) 185 CLR 259. However, the principle does not operate to render non-reviewable a decision that completely overlooks material that the decision-maker is required by law to take into account. It was incorrect for the Tribunal member to say there was no information before the Tribunal in relation to the appellant's contribution to the community. There was the work reference. With every wish to avoid a nitpicking approach, I cannot share the magistrate's view that the Tribunal's statement, of there being 'no evidence' about contribution, was intended to mean there was evidence but it was of insufficient probative value. If that had been the Tribunal member's view, I would have expected him to say so and briefly to explain why the work reference lacked probative value. 60 The magistrate thought the reference contained only 'scant information'. I do not share that view, but it does not matter what weight either the magistrate or I would be minded to give to the reference. Weight was a matter for the Tribunal to determine. It would not have been a jurisdictional error for the Tribunal to conclude that the contribution disclosed by the reference was insufficient to swing the decision in her favour. But it was a jurisdictional error to fail to give it consideration at all. Disposition 61 In my opinion, Lloyd-Jones FM erred in holding that the Tribunal did not commit reviewable error in relation to its decision. Accordingly, his Honour's decision should be set aside and, in lieu thereof, it should be ordered that writs of certiorari and prohibition be issued and a writ of mandamus be issued requiring the Tribunal to hear and determine the appellant's application for review according to law. The respondent should pay the appellant's costs in this Court and in the Federal Magistrates Court. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.