Minister for Immigration and Citizenship v Maman

Date of hearing: 4 November 2011

Division: GENERAL DIVISION

Counsel for the Appellant: Mr G R Kennett SC and Ms L Clegg

Solicitor for the Appellant: DLA Piper Australia

Solicitor for the First Respondent: Elliot Lawyers

Solicitor for the Second Respondent: The Second Respondent submitted, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1051 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGES: FLICK, FOSTER AND KATZMANN JJ DATE OF ORDER: 28 February 2012 WHERE MADE: SYDNEY

1. The parties are to file, on or before 6 March 2012, any submission as to the appropriateness of the proposed orders set out in paragraph [69], any such submission is to be of no more than two pages in length. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1051 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGES: FLICK, FOSTER AND KATZMANN JJ DATE: 28 FEbruary 2012 PLACE: SYDNEY

FLICK AND FOSTER JJ 1 The First Respondent, Mr Jimmy Maman, was born in Morocco in 1963. 2 In December 2003 he arrived in Australia on a tourist visa. He then met and later married in May 2005 an Australian citizen, Ms Ruth Seagull. He applied for a visa sponsored by his wife. The relationship did not proceed smoothly and by December 2005 Mr Maman was no longer living with his wife. 3 In March 2006 Ms Seagull wrote to the Department advising it of the termination of the relationship. Mr Maman was advised by the Department that his application for a visa would be considered under reg. 1.23(1B)(b) of the Migration Regulations 1994 (Cth). That provision addressed "domestic violence". 4 Following a report prepared by an independent expert concluding that Mr Maman had not suffered "domestic violence", the Department advised Mr Maman on 25 November 2009 that his application for Partner (Residence) subclass 801 visa had been refused. He sought review by the Migration Review Tribunal. The Tribunal requested a further report from an independent expert. A report was prepared which referred to Ms Seagull's letter to the Department. Again the conclusion was that Mr Maman had not been a victim of "domestic violence". Mr Maman's advisors sought a further independent expert's report. They complained that Ms Seagull's letter had been provided to the independent expert but had not been disclosed to Mr Maman or put to him for his comment. The request for a further independent expert's opinion was declined and the Tribunal affirmed the delegate's decision. 5 Review of the Tribunal's decision was sought and on 8 June 2011 a Federal Magistrate directed the Tribunal to "reconsider and determine the matter according to law": Maman v Minister for Immigration and Citizenship [2011] FMCA 426. In summary form, the Federal Magistrate concluded that the independent expert was obliged to provide Mr Maman with procedural fairness and failed to do so. The failure on the part of the Tribunal, it was further concluded, "to take into consideration the failure of the independent expert to provide procedural fairness meant that its finding that the report was 'properly made' was wrong in law": [2011] FMCA 426 at [3]. The decision of the Tribunal was quashed. 6 The Minister now appeals to this Court. The appeal is to be dismissed.

The Grounds of Appeal 7 The issues to be resolved on appeal are within a narrow compass. 8 The Grounds of Appeal as set forth in the Notice of Appeal as filed on 29 June 2011 were as follows: 1. The Court below erred in finding that the contents of Ms Seagull's letter contained new information that was credible, relevant and significant to the independent expert's opinion, and that its essential constituents were required to be put to [Mr Maman] for comment. PARTICULARS In arriving at the conclusion that the information in Ms Seagull's letter was credible, relevant and significant and was required to be put to [Mr Maman]: a) the Court did not consider or take into account the narrow nature of the independent expert's inquiry; b) the Court did not consider or take into account the particular circumstances of the case, including but not limited to the case advanced by [Mr Maman]; and c) the Court did not consider or take into account that the content of the obligation to afford procedural fairness may be reduced to nothing in circumstances where the impugned information has been given to the repository of power in confidence, or where the repository of power would breach privacy obligations. 2. The Court below erred in holding that the Tribunal was under a duty to consider whether the independent expert had afforded procedural fairness to [Mr Maman], such that a failure to consider that matter went to the jurisdiction of the Tribunal. 9 Central to the resolution of both of the Grounds of Appeal is the question as to whether Ms Seagull's letter should have been disclosed to the First Respondent during the course of the second independent expert preparing her report. Although attention was mainly focussed upon the second opinion which had been obtained, there is little reason to conclude that any different considerations apply to the first of the two opinions.

The Migration act and Regulations - The Independent Expert 10 The starting point for any consideration of a decision to grant or refuse a visa is to be found in the discretion conferred upon the Minister to do so if he is "satisfied" that "criteria … prescribed by this Act or the regulations have been satisfied": Migration Act 1958 (Cth) s 65(1)(a)(ii). 11 The decision-making process in the present proceeding involved the delegate's consideration of the request under cl. 801.221 of Schedule 2 to the Migration Regulations. 12 Clause 801.221 sets forth the "criteria to be satisfied at time of decision". Relevantly cl. 801.221(6)(c) provided at the relevant time as follows: An applicant meets the requirements of this subclause if: … (c) either or both of the following circumstances applies: (i) either or both of the following : (A) the applicant; (B) … has suffered domestic violence committed by the sponsoring spouse;… The Migration Regulations, it should be noted, have also been amended from time to time. The form of reg. 1.23 of the Migration Regulations as it applied to Mr Maman's application relevantly referred to "domestic violence". Pursuant to amendments effected by the Migration Amendment Regulations 2007 (No 13), the phrase is now "family violence". The Federal Magistrate, it should further be noted, erroneously referred to the regulations as amended. But nothing turns on that. The principles to be applied remain common to both. The regulations address a variety of different circumstances - including circumstances where an injunction has been granted under the Family Law Act 1975 (Cth); where a court has made an order under a law of a State or Territory for the protection of the alleged victim from violence or where there has been a conviction for violence. The regulations prior to their amendment addressed in reg. 1.23(1A) what it then described as a "non-judicially determined claim of domestic violence". 13 Prior to the 2007 amendments, reg. 1.23 addressed those circumstances in which a person contends that he has been the "victim" of "domestic violence" as follows: (1) For the purposes of these regulations: (a) a person (the alleged victim) is taken to have suffered domestic violence; and (b) another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim; if (c) on the application of the alleged victim, the court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or (d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or (e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim, or (f) the Minister is satisfied, for paragraph (1B)(a), that the alleged victim has suffered relevant domestic violence; or (g) the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence. (1A) For these regulations, an application for a visa is taken to include a non-judicially determined claim of domestic violence if: (a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered domestic violence; and (b) either of the following circumstances exists: (i) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; (ii) for an alleged victim who is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that: (A) the alleged victim has suffered relevant domestic violence; and (B) the alleged perpetrator has committed that relevant domestic violence. (1B) If an application for a visa includes a non-judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and: (a) if satisfied that the alleged victim has suffered relevant domestic violence - consider the application on that basis; or (b) if not satisfied that the alleged victim has suffered relevant domestic violence - seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence. (1C) The Minister must take an independent expert's opinion on the matter mentioned in paragraph (1B)(b) to be correct for the purposes of deciding whether the alleged victim satisfied a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered domestic violence. 14 Regulation 1.23(1B)(b) imposed the obligation upon the Minister - or his delegate - to "seek the opinion of an independent expert" and reg. 1.23(1C) provided that the Minister "must take an independent expert's opinion on the matter … to be correct". 15 In the event that an independent expert concluded that a visa applicant "suffered relevant domestic violence", the visa would most probably be granted and there the decision-making process would end. In the event that the independent expert concluded that a visa applicant had not "suffered relevant domestic violence" and the delegate refused the visa, that adverse decision could then be reviewed by the Migration Review Tribunal. The "conduct of review" before that Tribunal is governed by Part 5 Division 5 of the Migration Act, including s 357A which provides that that Division "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule". 16 The role played by an independent expert's opinion obtained by a delegate in any review process subsequently undertaken by the Tribunal is regrettably unclear. 17 The Tribunal, when undertaking its review function, has those "powers and discretions" identified by s 349(1), namely "all the powers and discretions that are conferred by this Act on the person who made the decision". It may also obtain additional information: s 359. That section provides, in part, as follows: (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information. … There is no express power conferred upon the Tribunal to obtain an independent expert's opinion. 18 Notwithstanding the absence of such an express power, it was the submission of the Minister that the Tribunal had power to itself obtain an independent expert's opinion and - indeed - was bound to do so. Just as the Minister or his delegate must "seek the opinion of an independent expert" by reason of reg. 1.23(1B)(b), so too, it was contended, must the Tribunal. So much, it was said, followed from the observations of Gummow, Hayne, Heydon, Crennan and Kiefel JJ in Sie Sok v Minister for Immigration and Citizenship [2008] HCA 50, 238 CLR 251. A question there arose as to whether a claim to satisfy the domestic violence qualification could be first made in the Tribunal. In addressing that question, their Honours observed: [28] … Neither the provisions of Div 1.5 generally, nor the frequent references made in the Division to the Minister, confine the criteria for the grant of the visa prescribed by cl 100.221 to those cases in which the visa applicant has made a claim of domestic violence before the initial consideration of the visa application. Rather, in reviewing the refusal to grant the permanent visa, the Tribunal is to determine whether the criterion for the grant of that visa (that the appellant "has suffered domestic violence committed by the sponsoring spouse") is met. And that criterion is met only if the appellant is to be taken, under reg 1.23, to have suffered domestic violence. In deciding that question, the Tribunal may exercise all of the powers and discretions conferred by that Division of the Regulations on the Minister. [29] Hence, the first question identified at the outset of these reasons - can the domestic violence qualification to the relevant visa requirements be engaged if the claim is first made in the Tribunal - is to be resolved in the appellant's favour. Their Honours went on to observe: [31] When the Tribunal comes to exercise the powers and discretions given to the Minister under reg 1.23, and in particular when the Tribunal is considering an application for a visa that includes a non-judicially determined claim of domestic violence, the consideration which the Tribunal must give to the claim is regulated by those provisions of the Act which prescribe the Tribunal's procedures. Of critical importance to the present matter is the obligation imposed on the Tribunal by s 360(1) to invite the applicant for review to appear before the Tribunal to give evidence and present arguments relating to "the issues arising in relation to the decision under review". [32] In many, perhaps most, cases, "the issues arising in relation to the decision under review" that are referred to in s 360(1) will most easily be identified by considering the reasons for decision given by the primary decision-maker (the Minister or the Minister's delegate). In the present case, however, the appellant raised a new issue in relation to the decision under review when he made his claim to have suffered domestic violence. Once the appellant made the claim that he had suffered relevant domestic violence, the Tribunal was bound by s 360 to invite him to appear before it to give evidence and present arguments relating to that issue, and any other issue that could be described as "arising in relation to the decision under review". [33] As the Minister rightly submitted, s 359 of the Act permits the Tribunal, in conducting its review, to "get any information that it considers relevant". … Such general observations as were made by their Honours as to the Tribunal having "all of the powers and discretions conferred … on the Minister", it is respectfully considered, provides scant support for the submission of the Appellant Minister. It is not considered that their Honours were there directing any attention at all to the question whether the Tribunal when conducting its review need obtain an independent expert's opinion. 19 The direction in reg. 1.23(1B)(b) that the Minister must "seek the opinion of an independent expert" cannot easily be characterised as a "power" and even less easily characterised as a "discretion" for the purposes of s 349(1) of the Migration Act. The conferral upon the Tribunal of a discretion to "exercise all the powers and discretions that are conferred … on the person who made the decision", accordingly, may not address any requirement imposed upon the Tribunal by reg. 1.23(1B)(b) to seek the opinion of an independent expert. Indeed, that phrase seems to deny the ability of the Tribunal to obtain any further opinion. Regulation 1.23(1C) constrained the Minister such that the Minister "must take an independent expert's opinion … to be correct". The Minister had no "power" or "discretion" to treat the opinion in any other manner. Section 349(1) confers no greater "power" or "discretion" upon the Tribunal than that conferred upon the Minister. 20 Any requirement imposed upon the Tribunal to itself obtain an independent expert's opinion, or any power to obtain such an opinion, may have to be found - if at all - elsewhere. 21 The task reposed in the Tribunal is that imposed by s 348(1), namely it "must review the decision". When discharging that task, it "may …exercise all the powers and discretions" that were conferred upon the Minister (s 349(1)) and in doing so it (for example) "may get any information that it considers relevant" (s 359(1)). And in conducting the review, the Tribunal may also consider any such further information that a visa applicant may seek to adduce. But it may well be doubted that the Tribunal is itself required to obtain any further independent expert's opinion. No section expressly requires it to do so and the process of conducting a "review" of the delegate's decision may well confine the Tribunal to a "review" constrained by the independent expert's opinion obtained by the delegate. 22 The potential utility of any "review" does not assist in resolving the question whether the Tribunal can or should itself get a further opinion. The utility in a visa applicant seeking "review" in circumstances where the Minister has obtained an adverse opinion may be limited. The Minister and the Tribunal are equally bound to treat the opinion as "correct". Senior Counsel for the Minister could not assist in identifying what could usefully be said by such a visa applicant to persuade the Tribunal to set aside the delegate's decision. Even if the Tribunal were required to obtain a further opinion, any further opinion would also have to be taken to be "correct". The prospect of two conflicting opinions could not be discounted. A legislative regime may seem open to question if it merely encouraged unsuccessful applicants to seek review on the chance that a subsequent opinion may be more favourable. 23 The power of the Tribunal to itself obtain a further report, however, was not fully argued. No more than tentative observations should thus be made. On the case for the Appellant Minister, it mattered not whether the Tribunal had the power or lacked any such power. Both parties proceeded upon the basis that no error was exposed by the Tribunal obtaining for itself a further independent expert's opinion. What divided the parties was not the absence of any power of the Tribunal to obtain a further independent expert's opinion but rather the content of any obligation owed by the expert to afford procedural fairness or natural justice.

The Independent Expert Must Proceed Fairly 24 The task being performed by the independent expert, it must be recognised, arises at the outset of the decision-making process. The provision of an "opinion" by an independent expert is but one of the means whereby the Minister (or his delegate) is to make a decision as to "whether the alleged victim has suffered relevant domestic violence". It is a task which thus precedes all of the subsequent means whereby the Minister's decision may be subject to review on the merits by the Migration Review Tribunal and whereby the Tribunal's decision may (in turn) be subject to judicial review by the Federal Magistrates Court. 25 Section 357A(1) in Part 5 Division 5 of the Migration Act provides that that Division "is taken to be an exhaustive statement of the requirements of … natural justice" in respect to the Migration Review Tribunal and thereby curtails what may be more extensive procedural rights conferred by the common law. But there is no such attempt to constrain the manner in which the independent expert performs his task. 26 It is presumably for this reason that the Appellant Minister accepts that an independent expert engaged under reg. 1.23(1B)(b) is under a duty to provide procedural fairness to the person who claims to be a victim of domestic violence. The Appellant Minister also accepts that an opinion expressed by an independent expert would not be effective to bind the Tribunal where there has been a denial of procedural fairness in forming the opinion. No submission was advanced on behalf of the Appellant Minister that the statutory scheme gave rise to either an implicit exclusion of the rules of procedural fairness (Commissioner of Police v Tanos (1958) 98 CLR 383 at 396 per Dixon CJ and Webb J; Kioa v West (1985) 159 CLR 550 at 584 per Mason J; Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ; Re Minister for Immigration and Multicultural Affairs, Ex parte Miah [2001] HCA 22 at [126], 206 CLR 57 at 93 per McHugh J) or an implicit constraint upon the content of those rules. 27 The obligation owed by the independent expert to proceed in a procedurally fair manner was accepted to be entirely derived from the common law. 28 But the Minister does contend that the "real issue" before the Federal Magistrate "was whether the former wife's letter contained new information which was credible, relevant and significant to the Independent Expert's opinion and which was therefore required to be disclosed". The written Outline of Submissions provided on behalf of the Minister relevantly contends as follows: When the content of the letter from the former wife is scrutinised carefully, in the context of the extremely narrow question the Independent Expert was required to determine, it can be seen that the information in it had little, if any, relevance. Certainly it contained no new information of any significance. The Minister's oral submissions maintained that the letter was neither "relevant" nor "significant". 29 That contention is rejected.

Procedural Fairness - General Principles 30 The appeal does not involve any novel question of law. But a number of general principles should be expressly recognised. It is the application of these principles that leads to the Minister's appeal being dismissed. 31 First, there are no universal rules as to the content of the rules of natural justice applicable to all factual or statutory situations: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504. Kitto J, after having referred to the "particular statutory framework" there proceeded to observe: ... By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin ([1963] 2 WLR 935 at 947. As Tucker L.J. said in Russell v. Duke of Norfolk ([1949] 1 All ER 109), in a passage approved by the Privy Council in University of Ceylon v. Fernando ([1960] 1 All ER 631 at 637), there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" ([1949] 1 All ER at 118). What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. His Honour continued: And it is not a one-sided business. What is a fair opportunity to allow the taxpayer in a given case is a question which by its very nature forbids an answer in disregard of the interests of other people. This is particularly true where, as here, the statute giving rise to the duty of decision expressly recognizes and aims to protect the interests of others which may come into competition with those of the taxpayer. For this reason the proposition cannot be maintained that even assuming that the Board is legally bound to determine the reference in a case under s. 136 in accordance with the substantial requirements of justice it must disclose all that it has learned about the affairs of other companies. How much it should disclose is a question which this Court ought not to attempt to answer in the abstract. On the opposite hypothesis, that the Board is not bound legally to act in a quasi-judicial manner, all questions as to disclosing information to the taxpayer are questions of pure discretion; but the Board's sense of fairness and responsibility will no doubt make the decision as to how the discretion should be exercised practically indistinguishable from that which it would have to make if faced with a legal necessity to conform to natural justice. See also: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ; R v Mackellar; Ex parte Ratu (1977) 137 CLR 461 at 476 per Mason J. 32 Second, a further general principle is that procedural fairness generally requires the disclosure of relevant adverse information that is "credible, relevant and significant": Kioa v West (1985) 159 CLR 550 at 615. Brennan J there expressed the principle as follows: A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: … The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary ([1981] AC at 97): To "over-judicialise" the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair. Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account: [(1985) 159 CLR at 628-629.] See also: Executive Director of the Office of Liquor and Gaming Regulation v Cayneston Pty Ltd [2011] QCA 193 at [52] per McMurdo P (Fraser and White JJA agreeing). 33 Third, there are limitations upon the duty to disclose information which is "credible, relevant and significant". One obvious limitation arises where the interface between questions of national security collide with general principles of procedural fairness: cf. Bush, C, "National Security and Natural Justice" (2008) 57 AIAL Forum 78. Indeed, it was in such a context that Madgwick J in Leghaei v Director General of Security [2005] FCA 1576 concluded that there was a duty to accord procedural fairness to the subject of an intended adverse security assessment but that "the content of procedural fairness is reduced, in practical terms, to nothingness": at [88]. An appeal was dismissed: Leghaei v Director General of Security [2007] FCAFC 37, 97 ALD 516. As recognised by Brennan J in Kioa v West, one further - and perhaps less dramatic - limitation is where the information otherwise required to be disclosed is confidential. Similarly, Kitto J in Mobil Oil recognised that natural justice is not a "one-sided business" and that "the interests of other people" need also be taken into account. In Johns v Australian Securities Commission (1993) 178 CLR 408 at 472, McHugh J recognised that the "need to preserve the confidentiality of the ASC's investigation does not exclude procedural fairness, but reduces its content … perhaps in some circumstances to nothing". 34 But the mere fact that a document may contain confidential information does not dictate that it not be disclosed, either in whole or in part. And the opposition of an opposing party to the disclosure of personal but confidential information does not of itself operate so as to preclude disclosure (cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [22], 225 CLR 88 at 98 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) and cannot of itself strip the opposing party of his common law entitlement to be heard. 35 Even where there may be substantial reasons in favour of preserving the confidentiality of information, the rules of procedural fairness may require disclosure of adverse information. By way of example, in Canterbury Building Society Ltd v Baker [1979] 2 NSWLR 265 an inquiry was being conducted into the affairs of the plaintiff building society. An inspector, Mr Lusted, had been appointed under the Co-Operation Act 1923 (NSW) to examine into and report upon the affairs of the society. Sheppard J, when sitting in the then Administrative Law Division of the Supreme Court, concluded that Mr Lusted's report should be disclosed. In doing so, His Honour reasoned as follows: But there is one matter which is in the realm of particulars in respect of which I do think the rules of natural justice are not being observed. Mr. Lusted has, as I have mentioned, reported upon the affairs of the society, pursuant to s. 118 (9) of the Act. The delegate has his report, and proposes to use it to assist him in examining the witnesses to be called. He has refused to make the report available to the society or its counsel. It seems to me, from what he has said generally in the transcript, which I have read, that he intends to make use of it and to weigh up what Mr. Lusted has said against what witnesses may say. If the inquiry proceeds in that way, the society will be denied access, not only to information, but also to findings which may adversely affect it in the minds of the delegate and the registrar. Yet it will have no opportunity, really, of correcting what is contained in the report. Counsel for the defendants impressed upon me the need for the preservation of the confidentiality of such a report, and referred to the fact that such a report might be made into the affairs of a building society far larger than the plaintiff here. The making available of that report might lead to its being "leaked" (to use a current expression) to the press or to members of the public. It might be misinterpreted, or its effect may be misunderstood, with the result that the funds, and thus the liquidity of the society, might be placed in jeopardy to the detriment of members and creditors. Counsel referred to the fact that inspectors' reports under the Companies Act might be kept confidential, even though an inspector were to express one of the opinions referred to in s. 222 (1) (g) of the Companies Act (N.S.W.), thus providing a ground upon which the company might be wound up. But the publication of reports made pursuant to Pt. VIA (Special Investigations) of the Companies Act is a matter specifically dealt with in s. 178 (2), (3) and (4). There are no comparable provisions of the Act in question here. Nevertheless, I appreciate the force of the considerations which have been put, and the anxiety of a registrar and a Minister, with the public interest in mind, to keep information of this kind confidential. But it is my conclusion that the rules of natural justice do apply to the proceedings, and I do not see how effect can be given to them, if material is going to be adverted to by the person conducting the inquiry, of which the person who may be affected by the outcome of it is kept ignorant. Problems of confidentiality of documents arise from time to time in court. Sometimes arrangements are made whereby documents are produced only to counsel, or to counsel and solicitors. On other occasions, documents may be produced to parties in return for an undertaking to the court that their contents will not be divulged. The registrar and his delegate are not in the same position as a court to obtain undertakings of this kind, and I am afraid the report must be made available without restriction. But, if the report is adverse to the society, one would not think that officers of the society would want it disclosed any more than would the registrar or the Minister. That, of itself, ought to be a sufficient sanction, once the report is disclosed, to ensure that the terms of it are not widely published. Reference was made to the law of defamation. I can have no concern in relation to that matter. Sometimes the legislature provides that reports of the kind in question here are to be the subject of absolute privilege; sometimes they are left to be governed by the general provisions of the law dealing with the circumstances in which a claim for qualified privilege may be made. My conclusion is that, the rules of natural justice applying to the proceedings, a copy of the inspector's report ought to be made available to the plaintiff. That should be done before the inquiry proceeds further. 36 There remain, however, no universal rules as to whether the confidential information itself need be disclosed in its entirety or whether some lesser disclosure may suffice: Ansell v Wells (1982) 63 FLR 127. In the context of considering the manner in which a Promotions Appeals Committee was to proceed, Davies J observed: … ordinarily, a contender for a position will not have a fair opportunity to put a case unless he or she is given due notice of the adverse factors which will be considered against him or her. Such notice should be given in time sufficient to enable the party properly to prepare his or her case. That is not to say that rules as to confidentiality should not apply. Referees may prefer that their opinions be confidential. Other persons in the department who have honestly given an opinion as to competence may prefer that the opinion not be disclosed, for disclosure may disrupt the continuing harmony of the department. Questions of confidentiality must, however, be dealt with in the circumstances of the particular case. The rules of natural justice do not lay down precise criteria. They simply provide that the administrator must act fairly in the particular circumstances of the case. While the parties should know the course which the committee adopts and the material which it takes into account, the committee, as an administrative body, has a discretion as to what it does and what it does not disclose to them: [(1982) 63 FLR at 140-141.] 37 Fourth, an adequate "opportunity" to be heard may be satisfied in some cases if the gist of any adverse information is disclosed without the entire text or document in which that information is contained necessarily also being disclosed. Thus, in Plaintiff M61/2010E v Commonwealth [2010] HCA 41, 272 ALR 14 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, albeit in the context of considering s 424A of the Migration Act and decisions of the Refugee Review Tribunal, observed: [91] … [P]rocedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides that the Tribunal must give an applicant "clear 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". But that obligation is subject to qualifications. … More broadly expressed, procedural fairness may not require a decision-maker to disclose "the precise details of all matters upon which he intends to rely": McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600 per Toohey, Wilcox and Spender JJ. "It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its 'essential features'": Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 at [70], 103 FCR 539 at 557 per Merkel J. 38 Procedural fairness is thus not denied in a dumping inquiry arising under the Customs Act 1901 (Cth) where the "gist" of commercially confidential information has been disclosed "sufficient to enable any person wishing to make a submission … to do so": Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 at 574 per Lockhart J. Nor is procedural fairness denied where a visa applicant has been put on notice that the Minister "was giving consideration to the question whether he should form a belief as to the character of the applicant, by virtue of the information received by the respondent, to the effect that the applicant was involved in criminal activity and associated with organised crime": Chu v Minister for Immigration, Local Government, and Ethnic Affairs (1993) 45 FCR 540 at 546 per Beaumont J. 39 The fact that the information in question may contain personal - and in some cases intensely personal - information is but part of the circumstances to be taken into account. 40 Even though as a general proposition information which may otherwise be required to be disclosed may be withheld by reason of the characterisation of that information as confidential, further questions may necessarily arise by reason of the identity of the person to whom the "confidentiality" is owed. Where the "confidentiality" arises by reason of a personal relationship between two persons - and where no question of any "confidentiality" to any third party arises - the very fact of the relationship may dictate the disclosure of information which is otherwise properly characterised as truly "personal" or "confidential". The need to preserve the "anonymity" (for example) of a third party such as a referee may in some circumstances confine the degree of disclosure otherwise warranted: e.g., Hamblin v Duffy (No 2) (1981) 55 FLR 228 at 240 per Lockhart J. Absent the need to protect the interests of third parties, however, the more intensely personal a relationship is, the more necessary it may be to disclose to the other party to that relationship the entirety of the information in question if that party is to be treated in a procedurally fair manner. The source of any obligation to protect "confidentiality" may well thus dictate the necessity to disclose either the entirety of that information - or at least the substance of that information in some degree of detail - to the other. The protection of the mere private interest of one party to such a relationship, in the absence of any greater public interest, may have to yield if the other party is be afforded an effective opportunity to address the allegations being made. And the more personal the information that is communicated to a decision-maker by one party - as opposed to information which may be loosely characterised as personal but commercial information - the more necessary it may be to disclose the entirety of the communication. Stripped of the context or the manner or the terms in which purely personal information is communicated, an opposing party may be denied a proper opportunity to respond. Personal information communicated in the form of a letter to a decision-maker may well take its colour from the terms in which the author of the letter communicates the information; the surrounding context of the letter itself; and the circumstances in which the letter was written. Absent the agreement of one party to a decision-making process to consider information "the contents of which were unknown to him" (e.g., R v Teachers Tribunal; Ex parte Colvin [1974] VR 905 at 909-910 per Lush J), procedural fairness may dictate the need for confidential information provided by an opposing party to a personal relationship to be disclosed. 41 The disclosure of information which is confidential, but more commercial in nature than personal, may in some circumstances be more easily accommodated by the demands of procedural fairness. The preservation of "confidentiality" and an adequate opportunity to be heard may be secured by the provision of such confidential information to an independent expert and by the imposition of so-called "Chinese walls". But information which is intensely "personal" may have to be disclosed to the persons concerned if one party is to be able to properly and adequately respond to the complaints or allegations of another. 42 Subject to any statutory modification of the common law rules of procedural fairness, either the entirety or the substance of such personal information may have to be disclosed if procedural fairness is to be afforded. 43 Fifth, if information is "credible, relevant and significant", it may not be a sufficient compliance with the requirement of procedural fairness for a decision-maker to assert that he has placed such information to one side or given it no weight: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72, 225 CLR 88. After referring to the decision of Brennan J in Kioa v West, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ went on to observe: [17] It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached. [18] It follows that the Tribunal's statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness. 44 Finally, a breach of the requirements of procedural fairness may deny effectiveness to a step in a decision-making process (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597) and provide the basis for a submission that the first decision of the Tribunal was affected by jurisdictional error. The diversion of the views expressed in Bhardwaj was the subject of later analysis by Gray and Downes JJ in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, 145 FCR 1. For present purposes it is sufficient to note that Bhardwaj does not stand for the proposition that jurisdictional error on the part of an administrative decision-maker always means that the decision is no decision at all or a decision without legal consequences: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27]; SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167 at [26], 180 FCR 438 at 445. The consequences of a decision affected by error, including jurisdictional error, are determined primarily by consideration of the statute pursuant to which a decision is made. See also: Jackson v Purton [2011] TASSC 28 at [49] to [87] per Wood J.

The Non-Disclosure of the 3 March 2006 Letter 45 Ms Seagull's letter dated 3 March 2006, it should be noted, was a letter of some detail and length. It occupied some 3½ typed pages. It contained her account of the relationship with Mr Maman. The letter set forth instances and examples of factual situations that had occasioned disharmony. 46 In the context of the present appeal it is concluded that: the letter dated 3 March 2006 was not information which could properly be characterised as either irrelevant or insignificant; any requirement of procedural fairness owed by an independent expert would most probably not have been satisfied by the mere disclosure of the "key points" of that letter as set forth in the second expert's opinion; any requirement of procedural fairness owed by the Tribunal was not satisfied by the disclosure of those "key points"; any obligation that may have existed to keep the contents of Ms Seagull's letter confidential in 2006 did not persist such that it most probably should have been disclosed to Mr Maman when being interviewed by the experts in September 2008 and July 2010; procedural fairness most probably required disclosure of the entirety of that letter to Mr Maman prior to an "opinion" being formed by either of the independent experts or (at the very least) the second independent expert; the failure to disclose the 3 March 2006 letter or at least the gist of that letter has the consequence that no "opinion" has ever been obtained - either from the first or the second independent expert - such that there has never been an "opinion" which is to be taken to have been "correct" by either the delegate or the Tribunal; the absence of such an "opinion" deprived both the delegate and the Tribunal of jurisdiction to make any decision in accordance with law. Each of these conclusions should be briefly addressed. 47 The Minister's submission that the 3 March 2006 letter was neither "relevant" nor "significant" was perhaps surprising. 48 The letter was an account by Ms Seagull of the circumstances which led, in her view, to why "my relationship with my husband Jimmy Maman broke down". Although there may well be a legitimate basis for speculation as to whether Ms Seagull wrote the letter to "dob in" Mr Maman, that matters not. Whatever may have been the reason behind the letter being written, it was a letter considered by the Department at a much later point in time to be relevant to the opinion to be formed by each independent expert. Presumably that is why the letter was forwarded by the Department to each of the experts. An account provided at the time of the breakdown in the relationship, and the reasons then advanced by Ms Seagull, may well be considered to be information which could throw light upon the relationship and the tensions within that relationship. Such matters were presumably of relevance to any opinion as to whether the situation between the parties amounted to "domestic violence". 49 At the heart of the Minister's submission as to the letter being neither relevant nor significant to the opinion reached by each of the independent experts - and, in particular, the second independent expert's opinion - was a careful reading of what the expert had actually concluded. The second independent expert's opinion (in particular), it was said, was but a rejection of the claims made by the husband. Even on Mr Maman's account, it was submitted, the expert was not satisfied that there had been "domestic violence". It was thus unnecessary for the expert to take into account Ms Seagull's account, and hence unnecessary for that account to be disclosed if the expert was to afford procedural fairness to Mr Maman. The opinion of the first independent expert was less analysed. 50 But the submission is, with respect, without merit. The obligation to disclose potentially adverse information imposed by the rules of procedural fairness is not discharged by determining that which may ultimately prove to be relevant or significant to the final opinion reached. Although some information may be capable of being put to one side at the outset of a decision-making process, other information may be more immediately central to the ultimate conclusions to be reached. Yet other information may be less centrally important but nevertheless not capable of being summarily cast aside. Some information which may not initially appear to be of central importance may, if disclosed, occasion further factual input and may ultimately assume greater importance to the ultimate conclusion. 51 It would be disingenuous to suggest that Ms Seagull's account could be summarily cast aside at the outset as having no potential relevance to either independent expert's final opinion. It was not understood that Senior Counsel for the Minister adopted any such extreme position. The letter thus stated (by way of example) that: In November 2005 our relationship was completely ruined and we were fighting constantly… … he started to threaten me. His threatening started to increase and my fear from him grew… Jimmy kept threaten me and scaring me with violent threats. Things were getting out of control … Once it is accepted that Ms Seagull's letter may assume importance and is a matter that may be taken into account, procedural fairness dictated that either the letter or (at least) the gist of the letter be disclosed. 52 And, in the present proceeding, even the "gist" of Ms Seagull's account was not disclosed. Given the intensely personal issues addressed in that letter, it is perhaps not surprising that the summary of "key points" that was belatedly provided to the First Respondent did not adequately set forth the "gist" of what Ms Seagull had written. Senior Counsel on behalf of the Minister did not contend otherwise. But what was disclosed - as opposed to what was not disclosed - illustrates to some extent the denial of procedural fairness experienced by Mr Maman. 53 The disclosure of the "key points" emerged when the Tribunal was seeking to discharge the obligations imposed upon it by s 359A of the Migration Act. On 19 October 2010, the Tribunal wrote to Mr Maman inviting him "to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review". "[P]articulars" of the information of concern to the Tribunal were identified. In providing those "particulars", the Tribunal enclosed a copy of the report of what was referred to as "the independent assessor", a report also dated 19 October 2010. In relation to Ms Seagull's letter, that copy of the report contained the following: Key points of the letter: • In June 2005 she had to go to Israel and a few weeks after her return the relationship had deteriorated rapidly. She explained that they were under a lot of financial pressure as they were living on her income even after Jimmy gained a working permit. • She advised that Jimmy was bitter about being unemployed and became more and more dependant on her for financial support. They would be arguing every day about income and expenses and it became impossible to connect with him and the arguments became uglier and uglier. • She advised that in November 2005 the relationship was ruined and when she raised the possibility of breaking up Jimmy agreed but on condition that his visa would not be cancelled. • She alleged that Mr Maman scared her with violent threats and her fear of him grew. • She alleged that he threatened her in regard to continuing her sponsorship of him. • She alleged that she had to move out of her home as Mr Maman refused to move. The letter from the Tribunal enclosed an edited copy of the "opinion". The "opinion" in its entirety was not then disclosed. 54 The Tribunal's letter dated 19 October 2010 met with a not unexpected response. The solicitors then retained by Mr Maman referred (inter alia) to the "key points" and stated that Ms Seagull's letter "contains clearly prejudicial comments". The solicitors' letter went on to state that "[o]ur client has not had the opportunity of seeing this letter and therefore was not in a position to make comments to the Independent Expert based on that letter". It was then said that the "Independent Expert's opinion has been tainted by this process". 55 There was, however, disclosure to the First Respondent of at least the "key points" before the Tribunal made its decision. But the disclosure of these "key points" fell well short of compliance with the rules of procedural fairness. Indeed, the disclosure of these "key points" may well have been misleading by reason of the remaining content of Ms Seagull's letter which was not disclosed. 56 "Points" which were made in the letter but not disclosed to Mr Maman for comment included the following: the repeated suggestion made by Ms Seagull to Mr Maman "to find a job, even a temporary position so we could support ourselves" and his refusal; the information communicated to Ms Seagull when she met Mr Maman's family in Israel that he "had major difficulties with his relationship with his siblings and that he did not get along with them"; the complaint made by Ms Seagull that she would "work all day and … still was responsible for the house work and the cooking etc" and Mr Maman's failure to help out; the deterioration in the relationship between Mr Maman and Ms Seagull's son with Ms Seagull noting attempts by her son to try "to make … conversation, but Jimmy was not nice to him"; the decision to "go to [counselling]" but the complaint that "it did not solve the problem as Jimmy was not [open] minded about the [counsellor's] suggestions"; and the requests made by Ms Seagull for Mr Maman to "get out of the house". Some of these further "points" may not have been as immediately relevant to a determination of "domestic violence" as others. In the absence of a clear reason to do so, however, no clinical distinctions should be drawn between factual assertions which are centrally relevant to a determination of "domestic violence" as opposed to those which are less centrally relevant. But in what may well be imagined as a fairly highly charged emotional environment where complaints of domestic violence are being made, it is difficult - if not impossible - for complaints in any case to be answered if as much detail as possible is not disclosed. That did not occur in the present case. 57 Again, Senior Counsel for the Minister properly accepted that such disclosure as there was of "key points" did not satisfy the requirements of procedural fairness. Any necessity to decide whether, in the present proceeding, the entire letter or a more appropriately drafted identification of the "key points" contained within that letter, is removed by reason of the fact that the entire letter has now in fact been made available to Mr Maman. 58 Disclosure by the Tribunal of either the 3 March 2006 letter in its entirety, or even the "gist" of that letter, would not in any event have been of any assistance to Mr Maman. By the time the "opinion" had been formed, the damage as far as he was concerned had been done; the Tribunal was, on the Minister's approach, given no room to conclude other than that the "opinion" of the expert was "correct". 59 The principal harbour in which the Appellant Minister sought to take refuge was the "confidentiality" attaching to Ms Seagull's letter. But that harbour provided no greater refuge than the harbour of Montevideo provided refuge for the Admiral Graf Spee; initial safety yielded to failure. The Minister also maintained his argument that, notwithstanding that he conceded that the rules of procedural fairness applied to the independent experts' process, nothing had to be done in the present case because the letter was not credible, relevant and significant. 60 It may be assumed that Ms Seagull's letter when written on 3 March 2006 may well have then attracted an obligation to keep it confidential. The purpose for which the letter was originally provided to the Department, and whether it was in truth a "dob in" letter may have reinforced an initial obligation of confidentiality. So, too, may the terms of that letter. The final paragraph thus read (without alteration): I reported the break up of our relationship to Centre link in January 2006. I am reporting this to you only now as it took a few weeks to get the courage to do so. I am hopping that this letter will not risk in any way the safety of me or my son as I am fearful from Jimmy and his future action in regard to this matter. But time passed between March 2006, September 2008, and July 2010, when the first and second expert interviewed Mr Maman. 61 Whatever confidentiality initially attached to the letter may well have long gone by the time of the involvement of those independent experts. Certainly any attempt to keep the letter confidential was abandoned when it was in fact provided to Mr Maman, although the date of that disclosure remains unknown. It was certainly after 27 October 2010 and probably after 22 November 2010. No attempt was made to strengthen any claim for confidentiality that the letter may initially have had by reference to any later fact. It is not necessary, however, to determine the point in time when the letter could have been disclosed to Mr Maman in its entirety without any continuing concern as to a legitimate claim for confidentiality. Even such a claim when first made may not have prevailed over the necessity for it to be disclosed to Mr Maman if he was to be afforded procedural fairness. Regardless of the point in time when any initial claim for confidentiality may have been lost, the common law rules of procedural fairness required at least that the "gist" of the letter be disclosed to Mr Maman before either independent expert formed an opinion. 62 By the time of the consideration of Ms Seagull's letter by each independent expert, or at the very least by the time of the second independent expert's consideration, there was no reason why the entirety of that letter should not have been disclosed. 63 The conclusion that each independent expert denied the First Respondent procedural fairness when preparing its "opinion", it is further concluded, has the consequence that there is no "opinion" for the purposes of reg. 1.23(1B)(b). 64 The requirements of reg. 1.23(1B)(b) were not satisfied by the mere provision of a document or report titled "opinion". The Minister did not contend otherwise. To satisfy the requirements of that provision, an "opinion" must have been one that was formed in accordance with law, including the common law requirement to comply with the rules of procedural fairness. It is only such an "opinion" which could be clothed with the conclusiveness of reg. 1.23(1C), namely an "opinion" which the Minister must take as "correct". 65 The conclusion that there is no "opinion" which satisfied the requirements of reg. 1.23(1B)(b) or (1C), it is further concluded, also has the consequence that the decision of the Tribunal itself is vitiated by jurisdictional error. This conclusion as to the procedurally flawed nature of the "opinion" given by each independent expert, has the consequence that it vitiates all that follows thereafter. This conclusion, it is respectfully considered, follows from: the conclusiveness ascribed by reg. 1.23(1C) to the "independent expert's opinion"; the limited opportunity given to a party to a domestic relationship to contribute to or participate in the formation of an "opinion" which so immediately affects that party's interests; and the absence of any attempt on the part of the Legislature to exclude or limit the application or content of the common law rules as to procedural fairness.

The Notice of Contention 66 It is unnecessary to consider whether leave would have been given to Mr Maman to file a Notice of Contention which was one day outside the time limit imposed by r 36.24 of the Federal Court Rules 2011. That rule provides that any notice of contention "must" be filed "within 21 days after the notice of appeal is served" and be "in accordance with Form 124". Rule 36.24 had as its counterpart Order 52 r 22(3) of the now repealed Federal Court Rules. Given the dismissal of the Minister's appeal, it is unnecessary to consider whether there were any other grounds upon which the decision of the Federal Magistrate could have been upheld. It is also unnecessary to consider whether the Notice of Contention as sought to be filed complies with Form 124. That Form provides that a party is to "specify briefly but specifically the grounds relied on to support the judgment of the court". The Notice of Contention as sought to be filed attempted to comply with this part of Form 124 by stating: The court below erred in finding that the decision of the independent expert: 1. was not manifestly unreasonable in all the circumstances. 2. did not take into account irrelevant considerations; 3. did give the applicant's case proper consideration; 4. did take into account relevant evidence of the applicant; 5. did provide adequate reasons. 6. did not contain errors of law and as a result was not properly made, and the second respondent by adopting the report was occasioned by jurisdictional error. Brevity may have been achieved; but such a statement of the grounds would almost certainly not have contained sufficient specification of the "grounds relied on". Only some of these purported "grounds" were, in any event, ultimately sought to be relied upon. 67 The argument, however, sought to be advanced by way of the Notice of Contention was apparently a contention that the independent expert formed an erroneous view as to what constitutes "domestic violence". Given the facts set forth by the independent experts, it was understood that Mr Maman wished to contend that such facts did not amount to "domestic violence". The merit of any such argument is unnecessary to resolve.

Conclusions 68 It follows that the appeal must be dismissed. 69 A question necessarily arises, however, as to the form of orders to be made. Given the conclusions reached in respect of the denial of procedural fairness and the uncertainty that arises as to the power of the Tribunal to itself obtain its own independent "opinion", it is tentatively considered that - in addition to dismissing the appeal - the decision of the delegate which was affirmed by the Tribunal should also be set aside and the matter be remitted to the Appellant to be determined according to law. For these reasons, subject to hearing further from the parties, the following orders would be the appropriate orders for the Court to make in the present case, namely orders that: 1. The appeal is dismissed. 2. Order 2 made by Federal Magistrate Raphael on 8 June 2011 is set aside. 3. The decision of the delegate as notified on 25 November 2009 is set aside. 4. The First Respondent's application as made on 15 May 2005 is remitted to the Appellant for determination in accordance with law. 5. The Appellant is to pay the costs of the first respondent. 70 Neither party suggested that the decision of the delegate should be set aside nor did the Court raise that possibility at the hearing of the appeal. It is considered that the parties should be given an opportunity to address that question, should any of them be of a mind to do so, before final orders are made. For this reason, the only order proposed at present is an order directing any party who wishes to make a submission as to the appropriateness of the proposed orders set out in [69] above file and serve by 6 March 2012 a written submission of no more than two (2) pages in length directed to the form of orders proposed. The Court will thereafter determine the form of the final orders on the papers. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick and Foster.

Associate: Dated: 28 February 2012 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1051 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGES: FLICK, FOSTER & KATZMANN JJ DATE: 28 FEBRUARY 2012 PLACE: SYDNEY

KATZMANN J 71 Jimmy Maman is an Israeli citizen, born in Morocco. He arrived in Australia on a tourist visa in December 2003. He later met Ruth Seagull, an Australian citizen born in Israel, whom he married on 15 May 2005. The same day, sponsored by Ms Seagull, he applied for a Partner (Temporary) (Class UK) Subclass 820 (Spouse) visa and a Partner (Residence) (Class BS) Subclass 801 (Spouse) visa. He was granted a temporary visa but the marriage broke down before his application for a residence visa was determined. Without his knowledge, on 3 March 2006 Ms Seagull wrote to the Department of Immigration, Multicultural and Indigenous Affairs (later renamed Immigration and Citizenship), notifying it that the relationship was over. In the letter Ms Seagull cast doubts on the genuineness of the relationship and reported that her husband had made violent threats against her. She concluded the letter with the statement: I am hoping [scil.] that this letter will not risk in any way the safety of me or my son as I am fearful from Jimmy and his future action in regard to this matter. 72 Without disclosing either the fact or the contents of the letter, the Department wrote to Mr Maman's migration agent on 6 June 2006, advising that it had received information that the relationship was no longer continuing but that Mr Maman might still be eligible for a grant of permanent residence in two circumstances. Relevantly, those circumstances included a situation in which the applicant had suffered domestic violence committed by the sponsor. On 16 April 2007 Mr Maman's migration agent informed the Department that Mr Maman was the victim of domestic violence committed by his wife. The Minister for Immigration and Citizenship was not satisfied this was so and therefore referred the question to an independent expert under the Migration Regulations 1994 (Cth) ("the Regulations") which state that the expert's opinion is binding on the Minister. On 26 September 2008 the expert reported that Mr Maman was not the victim of domestic violence committed by his wife ("relevant domestic violence"). On 16 October 2008 Mr Maman was given an opportunity to respond to the opinion of the independent expert and on 6 July 2009 the Department received a report from a consultant psychologist. Some months later, a delegate of the Minister refused the application for a residence visa. 73 Mr Maman applied to the Migration Review Tribunal for review of the delegate's decision. The tribunal referred the question of domestic violence to a second independent expert, who also concluded that Mr Maman had not suffered relevant domestic violence. In October 2010 the tribunal sent the second independent expert's report to Mr Maman for comment. The report referred to the "key points" of Ms Seagull's letter in a passage marked "confidential". It was in this way that Mr Maman first learned that his ex-wife had written to the Department. Mr Maman complained about the process and, in particular, the failure to afford him the opportunity of seeing the letter and responding to its contents. He later provided a statutory declaration commenting on the matters raised in the report. The tribunal affirmed the delegate's decision, considering itself bound by the opinion of the second independent expert, holding (despite Mr Maman's complaints) that it was authorised by the Regulations and must therefore be taken to be correct. It refused Mr Maman's request to disregard the second opinion and for the matter to be referred to a third independent expert. The tribunal's reasons are best encapsulated in a passage at [31] of its decision record: The Tribunal is mindful of the fact that the delegate had previously referred the applicant's claim to an independent expert who also formed the opinion that the applicant was not a victim of domestic violence. The second independent expert formed the same view following the referral by the Tribunal. The applicant's aim appears to be that further opinions should be sought until such time as a favourable opinion is obtained. 74 Mr Maman then applied to the Federal Magistrates Court for constitutional writs to quash the tribunal's decision, to direct it to redetermine his application and to restrain the Minister from acting on or giving effect to the decision. He submitted that, for various reasons, the tribunal's decision was made without jurisdiction and/or contained errors of law or was not authorised by law. In particular, he alleged (in effect) that the failure to disclose Ms Seagull's letter or, at least, its contents was a denial of procedural fairness that vitiated both the independent expert's opinion and the tribunal's decision. The federal magistrate upheld the latter claim (though rejecting Mr Maman's other arguments), ordering that writs of certiorari and mandamus issue to quash the Minister's decision and direct the tribunal to reconsider and determine the matter according to law. 75 The Minister now appeals from the federal magistrate's judgment and asks that those orders be set aside. The grounds of appeal are set out in full in the reasons of Flick and Foster JJ. 76 Although the question was disputed in the Court below, the Minister now accepts that an independent expert is obliged to afford a visa applicant procedural fairness. He also accepts that an opinion expressed by the independent expert formed in its absence would not bind the tribunal and, as the tribunal considered itself bound by it, the tribunal's decision would be vitiated if the failure to inform Mr Maman of the substance of the letter amounts to a denial of procedural fairness. The appeal is concerned, therefore, with the content of the duty in the particular circumstances of this case. 77 The central question is whether the independent expert was required to divulge the letter or at least the substance of it. 78 To answer this question it is first necessary to understand the legislative scheme. 79 Section 29 of the Migration Act 1958 (Cth) ("the Act") gives the Minister power (subject to the Act) to grant non-citizens visas to travel to and enter Australia and/or to remain here. Permanent visas are visas entitling a non-citizen to remain here indefinitely (s 30). There are prescribed classes of visas (s 31(1)). A visa is of a particular class if the Act or the regulations so specify (s 31(5)). Section 31(3) provides that the regulations may prescribe criteria for visas of a specified class. The criteria for Subclass 801 visas are contained in Schedule 2 of the Regulations. Sch 2 cl 801.22 sets out certain criteria that must be satisfied at the time of decision. They include that the applicant meets the requirements of subcl 801.221(6). Subcl (6) relevantly provides that an applicant meets the requirements of the subclause if the applicant: (a) is the holder of a Subclass 820 visa; and (b) would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and (c) has suffered domestic violence committed by the sponsoring spouse. 80 I note parenthetically that the expression "family violence" was substituted for "domestic violence" throughout the Regulations in amendments introduced by the Migration Amendment Regulations 2007 (No. 13) (Cth), but those amendments only apply in relation to applications for visas made on or after 15 October 2007 (see reg 3(2)). Similarly, "partner" has replaced "spouse" in amendments introduced by Migration Amendment Regulations 2009 (No. 7) (Cth), but those amendments only apply in relation to an application for a visa made on or after 1 July 2009 (see reg 3(2)). 81 Mr Maman met the requirements in paragraphs (a) and (b). The issue before the delegate and the tribunal was whether he met the requirement in (c). 82 Regulation 1.23 provides for the circumstances in which a person is taken to have suffered or committed domestic violence. Although this clause was amended in November 2009, the amendments do not apply if, as here, the applicant claimed to the Department before 9 November 2009 that "family violence" (as defined in the Regulation) had been committed (see Migration Amendment Regulations 2009 (No. 12) (Cth) reg 6(2)(a)(iii)(A)). I note that the federal magistrate referred to regulation 1.23 as amended. But I agree with Flick and Foster JJ that nothing turns on this. The differences are not of substance. 83 Regulation 1.23 as it applies to Mr Maman is extracted in full in the judgment of Flick and Foster JJ. Relevantly, if an application for a visa includes a non-judicially determined claim of domestic violence the Minister is required to consider whether the alleged victim has suffered "relevant domestic violence". If satisfied, the Minister must consider the application on that basis. If not so satisfied, the Minister must seek the opinion of an "independent expert" on the question. In that event, the Minister must take the independent expert's opinion to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the visa applicant to have suffered domestic violence. 84 "Relevant domestic violence" was relevantly defined in reg 1.23(2)(b) to mean "conduct, whether actual or threatened, towards the alleged victim … that causes the alleged victim … to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety". 85 An "independent expert" was defined in reg 1.21(1) as a person who is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence. There is no issue in this case that the two people retained for the purpose (both Centrelink social workers) were suitably qualified. 86 Here, the Minister was not satisfied that Mr Maman had suffered "relevant domestic violence". Therefore, he was required by subreg 1.23(1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence. 87 By s 349(1) of the Act, the tribunal could exercise all the powers and discretions conferred by the Act on the Minister. It follows from the reasoning in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 ("VEAL") at [9] concerning the effect of s 414(1) (which is the equivalent provision affecting the Refugee Review Tribunal) that the tribunal was bound, too, by the terms of subregs 1.23(1B) and (1C). It also follows from the reasoning in VEAL that the duty of the tribunal to review the decision of the Minister to refuse an applicant a Subclass 801 visa is to be read as conditional upon the tribunal (and in this case the independent expert) according him procedural fairness. 88 As I observed at the outset, it is now not disputed that an independent expert engaged under reg 1.23 is under a duty to provide procedural fairness to a visa applicant who claims to be a victim of domestic violence. That is not because the independent expert was making a decision under the Act, as the federal magistrate reasoned. It is because of the nature of the functions the expert performs and the effect of the expert's decision on the interests of the visa applicant. See for example Kioa v West (1985) 159 CLR 550 at 619 per Brennan J. Nor is it disputed that an opinion expressed by an independent expert formed without affording the visa applicant procedural fairness would not be effective to bind the tribunal under reg 1.23(1C). And it is common ground that the effect of the regulatory scheme is that the Minister (and it must follow also the tribunal) could not decide that relevant domestic violence did not take place unless provided with a validly-formed opinion from an independent expert to that effect. 89 The Minister submits, however, that in the particular circumstances of the present case procedural fairness did not require that the letter or its contents be brought to Mr Maman's attention. 90 In the ordinary case, where no problem of confidentiality arises, as Brennan J said in Kioa v West at 629: an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. 91 In VEAL the High Court applied Kioa v West to a case in which the Department had received an unsolicited letter about an applicant for a protection visa. The letter made allegations which, if true, undermined the applicant's claim to fear persecution in his country of citizenship. The tribunal referred to the letter in its reasons but noted that the information was provided in confidence, that it was unable to test the claims made in it and therefore gave it no weight. It also directed that the content of the letter not be published or disclosed pursuant to s 440(1) of the Act, as disclosure was not in the public interest. The High Court unanimously held that the substance, though not the letter itself nor the author's identity, should have been disclosed to the applicant before the tribunal made its decision and its failure to do so amounted to a denial of procedural fairness at common law. It explained (at [17]) that a decision about whether information is "credible, relevant and significant" must be determined by a decision-maker before the final decision is reached and that determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. "Credible, relevant and significant", it went on, must be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. Information cannot be so dismissed unless the information is "evidently not credible, not relevant, or of little or no significance to the decision that is to be made". The Court said (at [24]) that the content of the rules of procedural fairness may be informed by considerations of public interest immunity and (at [29]) that in that case, the public interest in ensuring that there is no impediment to the giving of information to authorities about visa claims could be accommodated with the requirements of procedural fairness. The proper accommodation was to inform the visa applicant of the substance of the allegations in the letter and invite his response. 92 Here, the Minister submits that the information need not have been disclosed as it had little, if any relevance, and contained no new information of any significance. I acknowledge that the principles of procedural fairness are flexible in that they must always be moulded to the particular circumstances of the case: VEAL at [25]. But, like Flick and Foster JJ, I reject the submission. 93 It is true, as the Minister submitted, that the letter said nothing about whether Mr Maman had suffered the violence he claimed. It dealt with the circumstances in which the relationship broke down. Yet, the circumstances in which the relationship broke down could rationally affect the assessment of the probability of three factual assertions Mr Maman had made: that domestic violence had taken place, that Ms Seagull had committed it, and that he was the victim of it. These were the three facts critical to the opinion the independent expert had been asked to provide. The letter intimated that there was violence in the relationship but that Mr Maman was the aggressor and she the victim. The circumstances attending the breakdown of the relationship were therefore relevant to the independent expert's inquiry. And the letter was plainly prejudicial. It was capable of influencing, and, no doubt, calculated to influence, the mind of the decision-maker. At the very least it could have affected the expert's views about the reliability of Mr Maman's version of events. 94 Moreover, a reading of both expert opinions strongly points to the conclusion that each of them took the contents of Ms Seagull's letter into account. The first expert said his opinion was formed "after careful consideration of all the information provided" and concluded that Mr Maman was "a part of an extremely traumatic and volatile relationship rather than a victim of domestic violence". The second expert said that she had relied on all the information referred from the tribunal to Centrelink, which included the letter and the first expert's report. She also mentioned the existence of a volatile relationship. There is a real prospect that both opinions were influenced by the information conveyed by Ms Seagull's letter. As the letter was adverse to his interests, Mr Maman had a right to be heard on it before the independent expert provided his or her opinion. The failure to give him that opportunity means that the opinion was not an opinion within the meaning of subreg 1.23(1C) and the tribunal therefore wrongly concluded that it was required to take it to be correct for the purpose of deciding whether Mr Maman had suffered domestic violence. In the result, its decision was made in excess of jurisdiction. I respectfully adopt the conclusions Flick and Foster JJ express at [46]. 95 It follows that I agree with Flick and Foster JJ that Mr Maman was denied procedural fairness and that the tribunal decision must be set aside for that reason. I therefore agree with Flick and Foster JJ that the appeal must be dismissed. I am content with the proposed orders, although, as I have indicated, I take the view that the tribunal has the power in the circumstances of this case to seek the opinion of another independent expert. 96 In general terms I also agree with their Honours' reasons, but with two qualifications. 97 First, I would not be quite as emphatic about the duty to disclose "purely personal" information. I would wish to leave open the question whether the duty arises where disclosure would pose an imminent threat to the safety of the source. That issue, however, does not arise in this case. 98 Secondly, on the question of whether the tribunal, if not itself satisfied that an alleged victim has suffered relevant domestic violence, is required or empowered to obtain another independent expert's opinion, I share their Honours' qualms about the Minister's submission - but with one proviso. If the first opinion is reached in denial of procedural fairness or, for some other reason does not meet the statutory description, then the tribunal, standing in the shoes of the Minister, would be bound by the direction in subreg 1.23(1B)(b) to seek the opinion of another independent expert. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.