Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs

16 Prior to the commencement of s 503D on 15 July 2003 a Full Court of this Court had held that neither the name of an agency which communicated information to an authorised migration officer nor the condition upon which that communication occurred was itself information which was protected from being divulged pursuant to s 503A of the Act (see NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401). 17 In the revised explanatory memorandum to which reference has been made the following appeared in relation to the insertion of the new s 503D:- "13. In broad terms, this amendment means that where confidential character-related information is provided by a gazetted agency to an authorised migration officer, the agency's details will also be protected from disclosure under sections 503A, 503B and 503C. 14. From the time that section 503A was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, it was intended that both the confidential information relevant to making character decisions and the source of this information would be protected. This was made clear by the explanatory memorandum to that Act. 15. However, in NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCAFC 64 (20 March 2002), the Federal Court held that the identity of a gazetted agency that provided information protected by section 503A, and any condition(s) on which the information was provided, were not themselves information that was protected under section 503A. This amendment is therefore necessary to ensure that the original policy intention, to protect such information under section 503A, is restored. 16. New subsection 503D(2) explains what a reference to 'agency's details' in new subsection 503D(1) includes. A reference to 'agency's details' is a reference to any information in relation to the gazetted agency. This includes the agency's name and the conditions on which the communication of information by the agency occurred. Other information could include, for example, the location of the gazetted agency or the address or phone number of the gazetted agency. 17. This broad, inclusive meaning of agency's details is necessary to ensure that proper protection is afforded to gazetted agencies who provide sensitive intelligence information. This will, in turn, ensure that such sources continue to provide valuable information to the Department."

18 It is clear that s 503A(2)(c) of the Act operates independently of the restraints imposed upon authorised migration officers under s 503A(1) and s 503A(2)(d) as amplified by s 503D. 19 For the proscription upon the imposition of a requirement to divulge or communicate such information to a court to be engaged, four objective facts must be established being the facts covered by the first four bullet points set out above. Furthermore, if the information has been divulged or communicated to another authorised migration officer or the Minister, then the two additional objective facts covered by the fifth and sixth bullet points set out above would also need to be established for the proscription to be engaged. 20 The Act does not purport to take away from the Court the right to determine whether or not the preconditions have been satisfied. The Solicitor-General appearing with Mr Kennett for the Minister does not now suggest otherwise. 21 However, the Act does significantly restrict the evidence available to the Court which may bear upon those issues. In this regard it is important to note the primacy of s 503A which is made clear by s 503A(6) of the Act. (See also s 503A(8)). When the new sections 503B, 503C and 503D were inserted into the Act in 2003 minor amendments were also made to s 503A(6) and (8). 22 Were a Notice to Produce directed to the Minister or a relevant authorised migration officer to be served upon her or him as the case may be requiring the production to the Court of documents which might happen to contain information to which s 503A(1)-(2) applies, evidence might be given that information (unspecified) contained in certain documents was communicated to an authorised migration officer, that it was communicated by a gazetted agency (unspecified), that such agency communicated that information on the condition that it be treated as confidential information and that the information was in the recipient's opinion relevant to the exercise of a power under one of ss 501, 501A, 501B or 501C. Evidence might also be given identifying all of the gazetted agencies specified in the Gazette. 23 Section 501 deals with the making of decisions on visa applications and the cancellation of visas by reference to the character test firstly, where the Minister deals with the matter through a delegate and secondly, where the Minister deals with the matter personally. Section 501A deals with similar issues by reference to whether or not a person passes the character test, as do s 501B and 501C. 24 Consistent with his or her obligations under s 503A(1) and/or s 503A(2)(d) of the Act a relevant authorised migration officer could decline to divulge or communicate the information to the Court for the purpose of the Court ruling on whether the four preconditions covered by the bullet points set out above have been satisfied. The fact that the legislature intended that there would be no such disclosure to the Court for the purpose of addressing whether the preconditions have been satisfied is exemplified by s 503B(6) of the Act which provides expressly for one unique circumstance in which disclosure of the information may be made to the Court for the purposes of enabling the Court to decide a specific issue arising under s 503B(1) of the Act. No comparable provision is to be found in s 503A. 25 In the context of these general observations I turn now to consider the admissibility of evidence relied upon by the Minister to establish the several matters covered by the above bullet points in relation to certain Notices to Produce served by the Applicants on the Minister and filed on 27 October 2005 in each matter. Each Notice to Produce is expressed in the following terms: "The Applicant requires you to produce at the hearing before Graham J on 30 November 2005 the following documents for the purpose of evidence: (1) All documents recording or referring to the information referred to in the letter dated 20 May 2005 from P. Needham to Kerry Murphy as information which is protected under s 503A(1) of the Migration Act 1958 (Cth) ('the Act') ('the claimed protected information'). (2) All documents recording or referring to the name of the agency claimed to have communicated the claimed protected information and to the conditions on which the claimed protected information was communicated. (3) All documents recording or referring to information to be taken into account in considering whether to refuse the Applicant's visa application under s 501(1) of the Act other than the claimed protected information."

26 At this stage I do not pause to consider the adequacy of the Notices to Produce which on their face may render them liable to be set aside or otherwise dealt with by an order of the Court excusing the Respondent from complying with them in accordance with Order 33 rule 12(1) of the Federal Court Rules. 27 By Notices of Motion filed 24 November 2005 the Minister has moved the Court for orders setting aside the Notices to Produce. By consent the parties have agreed that the Notices of Motion should be treated as applications under Order 33 rule 12(1) of the Rules for orders that neither the Minister nor Ms Needham be required to produce documents which are protected from disclosure under s 503A of the Act. 28 Upon the hearing of the Minister's Notices of Motion the Minister sought to read affidavits of Ms Needham in each matter which were affirmed on 24 November 2005. Objection was taken to paragraphs 5 - 11 inclusive of each affidavit. Objection was also taken to the last sentence of paragraph 12 but that sentence has not, in the light of the objection, been read by the Minister. The parts of the affidavits to which objection has not been taken provided as follows:- "1. I am a Senior case officer in the Brisbane Character Assessment Unit in the Department of Immigration and Multicultural and Indigenous Affairs ('the Department'). I have principal responsibility within the Department for the management of the character assessment of the applicant. In that capacity I have been responsible for assessing information received by the Department that is potentially relevant to a decision whether to refuse the Applicant a visa under s.501 of the Migration Act 1958 and corresponding with the applicant, through his authorised recipient Mr Kerry Murphy, in relation to the notice of intention to refuse the application. 2. I am therefore familiar with the contents of the files held by the Department which contain all relevant information relating to the exercise of the power to grant or refuse the applicant's application for permanent residence. 3. I refer to the Notice to Produce addressed to the Respondent and filed on 27 October 2005. 4. I was the author of the letter to Kerry Murphy referred to in paragraph (1) of the Notice to Produce. Annexed hereto and marked 'A' is a copy of that letter." [subject to the minor differences in the letters referred to in paragraphs 4 and 5 above, they were in the same terms] .. 12. I am aware that the relevant departmental files contain other documents, such as internal memoranda and e-mail messages, which repeat some or all of the claimed protected information or refer to that information having been obtained from the agencies. I apprehend that these documents are within the scope of paragraphs (1) and (2) of the Notice to Produce. … 13. For the purpose of preparing this Affidavit I have also considered whether there are documents on the departmental files that come within paragraph (3) of the Notice to Produce. I make the following observations: 13.1 Part of my responsibilities referred to above will be the preparation of a submission to the delegate of the Minister who will make a decision about the applicant under s.501(1), discussing the issues that require consideration and summarising the relevant material. However, I have not prepared that submission or discussed the case in detail with the delegate. In these circumstances it is not possible to say with any confidence that particular information is 'to be taken into account' in considering whether to refuse the applicant's application under s501(1). 13.2 When preparing and signing the letter which is at Annexure A, the only information which I envisaged drawing to the decision-maker's attention as supporting refusal of the visa sought by the applicant under s.501 was the claimed protected information. My subsequent inspections of the files have not led me to take a different view. 13.3 In these circumstances I do not believe that the Department holds any documents which come within paragraph (3) of the Notice to Produce at the present time."

29 Those parts of the Affidavits affirmed 24 November 2005 to which objection has been taken seek to establish the objective facts covered by the several bullet points referred to above thereby engaging the proscription for which s 503A(2)(c) provides. Mr Gageler SC who appears with Mr Poynder for the Eshchenkos submits that the relevant facts may not be established by "secondary" evidence in accordance with s 48(4) of the Evidence Act 1995 (Cth). 30 By s 51 of the Evidence Act the common law "best evidence" rule was abolished. It provided: "51 The principles and rules of the common law that relate to the means of proving the contents of documents are abolished."

31 Under the "best evidence" rule the opportunity for a witness to give evidence of the contents of a document was highly restricted. In Ritz Hotel Ltd v Charles of the Ritz Ltd (No 21) (1988) 14 NSWLR 128 at 131 McLelland J said:- "… it seems to me that it is permissible … to give evidence describing a document by some such general description as 'a budget', but … I would not consider it open to me to infer from the mere fact of that description that the document contained any particular contents and specifically that it complied with, for example, requirements which had been laid down earlier as to what budgets were to contain within this organisation. In other words, the evidence would not be available to support any inference as to the contents of the document except the bare fact that it was a budget …"

32 The new statutory regime contained in the Evidence Act relevantly provides:- "47(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence. … 48 … (4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: (a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or (b) adducing from a witness evidence of the contents of the document in question."

33 Needless to say, in the present circumstances the Minister does not wish to adduce evidence in respect of information communicated to an authorised migration officer by a gazetted agency under s 503A(1) of the Act by tendering documents which contain that information. Accordingly, the Minister seeks to give evidence from a person who has seen such documents indicating what they are, where they came from (expressed in general terms), the nature of the information contained in them and the notations which they bear suggesting that the information has been communicated on a confidential basis. 34 Mr Gageler submits that if the Minister wishes to establish the objective facts covered by the several bullet points for the purposes of her present Motions, she must tender the documents containing the information said to be protected. The Solicitor-General resists this and submits that it is open to the Minister to adduce evidence as to the contents of the documents in question because, he argues, the documents are "not available to the party" within the meaning of the Evidence Act. 35 Clause 5 of Part 2 of the Dictionary adopted in accordance with s 3 of the Evidence Act deals with the unavailability of documents. Relevantly, it provides:- "5. For the purposes of this Act, a document … is taken not to be available to a party if and only if: … (d) production of the document … during the course of the proceeding could render a person liable to conviction for an offence; …"

36 Mr Gageler drew the Court's attention to the judgment of Justices Lindgren, North and Mansfield in Wu v Minister for Immigration and Multicultural Affairs [2001] FCA 89 where the primary judge had allowed evidence similar to that proffered by Ms Needham to which objection has now been taken. Ground of appeal number 1 in that case was to the effect that the primary judge had erred in allowing into evidence the matter to which objection had been taken. 37 The Full Court said in paragraphs [10] - [11] of its reasons:- "10. Before His Honour, Ms Siegmund's affidavit, referred to in the first ground of appeal, was objected to in its entirety, and particular objections were taken to various parts of it. His Honour disallowed the objection to the whole and many of the particular objections. The purpose of the affidavit was to establish that the information contained in Attachments 1-9 was 'protected' under s 503A of the Act. In order to do so, the affidavit would have had to prove by testimony in admissible form: [the appropriate bullet point details] 11. We do not find it necessary to determine the first and second grounds of appeal. If it be assumed that the content of Ms Siegmund's affidavit and its annexures were wrongly admitted into evidence, the result would have been no different because …" (emphasis added) 38 In NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401 Spender, Gyles and Conti JJ made a similar observation concerning matters required to be established under s 503A(1) of the Act. That case concerned a freedom of information application. The Court said at p408 [26]:- "Whilst the operation of s 503A(1) has been the substantive point of the argument on appeal, the fundamental question for the AAT was whether each document containing the information sought was an exempt document within the meaning of s 38 of the FOI Act. In order to establish that proposition, it would be necessary for the respondent to prove in a proper fashion [the relevant bullet point details were then set out] …" (emphasis added)

39 The Minister submits that were Ms Needham to produce the documents containing the information to the Court she would be doing so in breach of her obligations under s 503A(2)(d) of the Act and prima facie this would constitute an offence under s 70 of the Crimes Act 1914 (Cth). Accordingly it is submitted that the documents in question were "not available to the Minister" thereby permitting evidence to be given of the contents of the documents in question. Even if production by Ms Needham of the documents in question may render her liable to conviction for an offence, it seems to me to provide no answer to the argument advanced by Mr Gageler. Firstly, for s 48(4) of the Evidence Act to be invoked the Court would have to find that the documents in question were not available to "the party", i.e. the Minister, rather than Ms Needham. If the Minister had the documents containing the information, she would not be under the same duty of non-disclosure as Ms Needham since the restraints imposed on authorised migration officers by s 503A(1) and (2) do not, quite understandably, apply to the Minister. Secondly, even if s 48(4) was invoked all that that subsection allows is for a witness to give evidence of the "contents of the document". Whilst a document providing a summary of the documents tendered in question could be tendered such a summary could, in my opinion, only be a summary of the contents not a summary of the nature of the information contained in the documents. 40 In my opinion Ms Needham can give evidence that information has been communicated to an authorised migration officer. She can also give evidence that such information was communicated by a gazetted agency, without the necessity of specifying the particular agency. However she cannot in the circumstances and without producing the documents said to contain the relevant information give evidence that the information was communicated on condition that it be treated as confidential, nor can she give evidence that the information was relevant to the exercise of a power under one of the sections mentioned. Whilst she may be able to express an opinion to the effect that the information was relevant to the exercise of a power under one of the sections mentioned, in accordance with s 79 of the Evidence Act, for her opinion to be admissible she would have to state the facts upon which her opinion was based, i.e. she would have to disclose the information contained within the documents. 41 The Solicitor-General further submitted that the Court should find an implied qualification of the rules of evidence which would allow proof of matters referable to information, of which evidence cannot be given by virtue of s 503A of the Act, otherwise than "in a proper fashion" or "by testimony in admissible form". 42 In this regard it is appropriate to note the following sections of the Evidence Act which provide:- "8(1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903. … 9(1) For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a Court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. …"

43 There is no rule of Court allowing me to dispense with the operation of the rules of evidence in respect of the matters which the Minister wishes to establish in this application. 44 Section 75 of the Evidence Act provides no assistance for the Minister in the present circumstances. 45 Given the terms of s 503B(6) of the Act it is quite clear that the legislature intended s 503A(1) and (2) of the Act to prevent the disclosure to the Court by authorised migration officers of information relevantly communicated to an authorised migration officer on the condition that it be treated as confidential information except in the limited circumstances for which s 503B(6) provides or in accordance with a declaration made by the Minister under s 503A(3) of the Act. 46 Notwithstanding this apparent legislative intention, I am of the opinion that for the matters covered by the several bullet points mentioned above to be established, it must be done in admissible form. There is nothing in the Act which would justify a conclusion that an implied qualification of the rules of evidence had been effected by the Act. 47 In my opinion paragraphs 5, 6 and 8 of the affidavits of Ms Needham should be allowed. I would reject paragraphs 7, 9, 10 and 11. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 6 December 2005 Counsel for the Applicant on the Motion: D M J Bennett QC, Solicitor-General for the Commonwealth of Australia, and G R Kennett

Solicitor for the Applicant on the Motion: Australian Government Solicitor

Counsel for the Respondent on the Motion: S J Gageler SC and N C Poynder

Solicitor for the Respondent on the Motion: Murray Craddock & Neumann

Date of Hearing: 30 November 2005

Date of Judgment: 6 December 2005