Minister for Immigration and Citizenship v Kumar

High Court of Australia|2009-03-11|Before: Besanko JJ, French CJ, Bell JJ

For the reasons which follow the appeal by the Minister should succeed, the substantive orders of the Full Court should be set aside and the appeal to that Court should be dismissed. However, the orders of this Court respecting non‑publication made 30 September and 12 December 2008 will remain in force in accordance with their terms until further order of this Court.
The term "non‑disclosable information" appears not only in s 359A. It appears also in s 57 (exclusion from "relevant information" to be given to non‑citizen visa applicants); s 66 (exclusion from written reasons for visa refusals); ss 119, 120 and 129 (exclusion from relevant information to be given by the Minister in visa cancellation procedure); s 424A (to which reference has been made); and ss 501C, 501G and 500(6F) (respectively refusals and cancellations of visas by the Minister, and review thereof).
In its present form, par (c) of the definition of "non‑disclosable information" was introduced by the Migration Legislation Amendment Act 1994 (Cth)[5]. Previously, the paragraph had read, "information or matter that was given to the Minister or an officer in confidence". The change was designed to avoid the literal interpretation of the earlier provision as encompassing "information which was not inherently confidential and information provided by other Commonwealth Departments"[6].
Several points should be observed concerning the construction of the definition of "non‑disclosable information" in its application to s 359A. First, the phrase in pars (a), (b) and (c), "whose disclosure", must be read with the substantive provision made by s 359A. This suggests the answer to the question "disclosure by whom?". An answer must be "disclosure by the Tribunal". The upshot is that the obligation imposed upon the Tribunal by s 359A(1) to give certain information to the applicant does not arise if disclosure by the Tribunal would found an action by the informant or another person (not being the Commonwealth) for breach of confidence.

"The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles."

Where a statutory regime such as the migration legislation is involved the consideration stressed by Mason J becomes, if anything, plainer. If the terms of a statute take as a criterion for its operation a particular doctrine of the general law the resulting compound may have elements of indeterminacy. One reason for this may be found in the statement by Francis Bennion[9] that a statute "takes on a life of its own". The particular doctrine of the general law, in this case that respecting the protection of confidential information, may have been framed by judicial decisions addressed to ends which do not precisely correspond to those of the statute in question. The translation from private to public law must accommodate the scope and purpose of the public law regime. So it is in the present case.
What was said in the judgment of the Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[10] is significant for the issues on the present appeal. Their Honours stressed both the requirement of the Act that those entitled to a particular visa be granted it and that those not entitled be refused, and the corollary that information supplied by an informer be not denied to the executive branch in its administration of the legislation.
Section 359A is designed to accommodate those concerns. It affords to visa applicants a measure of procedural fairness and protection to informants, lest, without that protection, information be withheld and the Tribunal be denied material which assists the performance of its functions.
The obligation imposed upon the Tribunal by s 359A did not apply to information or matter whose disclosure by the Tribunal would have founded an action by the informant for breach of confidence. This follows from the opening words of s 359A(4), "This section does not apply ...". The leading judgment in the Full Court was delivered by Besanko J. His Honour accepted that "the information in this case is capable of precise identification" and that "it was imparted in circumstances importing an obligation of confidence". Nevertheless, Besanko J went on to decide that:

"the information, including the identity of the informant, was not non‑disclosable information. The Tribunal failed to comply with s 359A in that it did not disclose to [Mr Kumar] the identity of the informant and the full nature of the information."

The consideration which impressed the Full Court was that the general law does not protect confidences about such matters as the commission of crimes and frauds. In A v Hayden[11], when giving their reasons for answering the questions in the case stated and questions reserved by Dawson J to the Full Court, Mason, Wilson, Deane and Dawson JJ concluded that a court will not lend its aid to the enforcement of a contractual obligation of confidentiality undertaken by the Commonwealth, the effect of which would be to obstruct the administration of the criminal law. That situation may be contrasted with that on the present appeal. The preservation of the confidence of the informant's disclosures respecting the position of Mr Kumar tends to advance not obstruct the operation of the spousal visa provisions of the Act.
It may be accepted that similar considerations to those which underpinned the result in A v Hayden apply also in the general law regarding non‑contractual and purely equitable obligations of confidence. It has been said both in the courts of Australia and the United Kingdom that the disclosure of an "iniquity" will not be restrained as the subject matter of an obligation of confidence[12].
This is not the occasion to consider further any uncertainties which attend the equitable doctrine of confidence as it operates outside the provisions of legislative measures such as s 359A. It is sufficient to indicate two points. The first was made by Gibbs CJ in A v Hayden[13]. His Honour referred to the refusal of relief by a court of equity "to enforce an obligation of confidentiality when the consequence would be to prevent the disclosure of criminality which in all the circumstances it would be in the public interest to reveal". To similar effect is the passage in a leading United Kingdom text[14]:

"Something may present a serious risk to the medical health of the public, national security, the administration of justice or a matter of comparable public importance such that it may fairly be regarded as necessary in the public interest that a person possessing such information should be free to disclose it to an appropriate third party, whether or not the matter involves individual wrongdoing (by the claimant or anyone else). As in the case of 'iniquity', so also in the case of such information, it may be said that no court would imply a contractual obligation prohibiting such disclosure, or enforce an express contractual prohibition, and that such information would be regarded both at common law and in equity as lacking the necessary attribute of confidence to prevent such disclosure. ... It would be wholly unsatisfactory if, for example, a hospital doctor were prevented by his contract of employment from notifying the Department of Health of an imminent risk to public health detected by him in the course of his hospital duties, whether misconduct was involved or not."

However, the second point is that these remarks are not directed to the situation in which the Tribunal is placed. These remarks are directed to the situation where, for example, X wishes to make disclosures to the migration authorities concerning the true position of Y under the legislation, but X may be constrained from making the disclosure because the information was acquired by X under a cloak of confidence. The observations of Gibbs CJ and of Lord Justice Toulson and Mr Phipps in their work are directed to an answer by X at the suit of Y.
The Tribunal is in a different position. The Tribunal has acquired information adverse to the interests of Mr Kumar and acquired it by confidential disclosure from an informant. The issue concerns the existence and extent of any obligation imposed upon the Tribunal by s 359A to break that confidence of the informant.
Let it be assumed, without further entering upon the question, that the precisely identified information supplied to the migration authorities by the informant indicated that Mr Kumar or another person or persons may have committed offences against the laws of the Commonwealth. The question then is whether on its proper construction s 359A obliges the Tribunal, in affording procedural fairness to Mr Kumar, to break the confidence of the informant by revealing that information and the identity of the informant.
Mr Kumar submits that knowledge of the identity of the informant and the content of the information assists in understanding and thus in testing the cogency of the case against him and better discharges the obligation of procedural fairness of which s 359A is relevantly the "exhaustive statement" spoken of in s 357A.
However, although spoken in the application of general law principles of procedural fairness rather than in the application of s 359A, the following passage from VEAL[15] points to the answer in this appeal:

"To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations."

Upon the proper construction of the Act, the circumstance that the information supplied in confidence to the Tribunal may have disclosed or related to the commission of offences by Mr Kumar or others did not deny to the information and the identity of the informer the character of non‑disclosable information within the meaning of s 359A(4).
The Tribunal was obliged by s 359A(1) to give "particulars of any information that the Tribunal considers would be ... part of the reason, for affirming the decision" of the delegate. The "information" there spoken of did not include the non‑disclosable information (s 359A(4)). The Tribunal complied with s 359A(1) by notifying Mr Kumar that it had received information, in confidence, which stated that his marriage was contrived for the sole purpose of his migration to Australia, and inviting his response.
The Tribunal found that there was insufficient evidence upon which it could satisfy itself that, at the time of the decision under review, Mr Kumar and his wife held themselves out to the world as being in a genuine spousal relationship. If that conclusion were, as it was expressed to be, independent of the non‑disclosable information relied upon by the Tribunal then even in the absence of that information Mr Kumar could not have succeeded. However, the proposition that this conclusion stood independent of the non‑disclosable information, was not advanced on the appeal.
The appeal should be allowed. The Minister undertook on the grant of special leave to pay the costs of Mr Kumar in any event. Orders 1 and 2 of the orders of the Full Court entered 23 May 2008 should be set aside and the appeal to that Court should be dismissed.

The appropriate reprint of the Regulations is Reprint 4, dated 1 March 2004. ↑

The appropriate reprint of the Act is Reprint 10, dated 1 July 2006. ↑

Australia, House of Representatives, Migration Legislation Amendment Bill 1994, Explanatory Memorandum at 5. ↑

See Bennion on Statutory Interpretation, 5th ed (2008) at 1459‑1460. ↑

(2005) 225 CLR 88 at 98 [23]-[24], 100 [29]; [2005] HCA 72. ↑

(1984) 156 CLR 532 at 556 per Mason J, 571‑574 per Wilson and Dawson JJ, 595‑596 per Deane J; [1984] HCA 67. ↑

See A v Hayden (1984) 156 CLR 532 at 544‑547; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 454‑456; Attorney‑General v Observer Ltd [1990] 1 AC 109 at 282‑283. ↑

Toulson and Phipps, Confidentiality, 2nd ed (2006), s6‑022. ↑

Migration Legislation Amendment Act 1994(Cth)

Migration Act 1958(Cth)ss 5, 357A, 359A

Minister for Immigration and Citizenship v Kumar [2009] HCA 10

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