NAVK v Minister for Immigration & Multicultural & Indigenous Affairs

GROUNDS BASED ON SECTION 438 9 The first two grounds impugned the Tribunal's decision concerning the exercise of the discretion conferred by s 438 of the Act. Alternative formulations were made of the first two grounds to the effect that the Tribunal failed to consider making the enquiries suggested in the Enquiry Request. Such a formulation does not appear to add anything to the formulation of those two grounds. That is to say, if there were jurisdictional error in failing to make the enquiries, it would not be necessary to consider whether failure to consider making enquiries was also jurisdictional error. On the other hand, if failing to make the enquiries were not jurisdictional error, there would be no point in determining whether the Tribunal failed to consider making such enquiries. 10 Under s 438(1)(b) of the Act, s 438 applies to a document or information if the document or the information was given to the Minister in confidence. Under s 438(2), if, in compliance with a requirement of or under the Act, the Secretary gives to the Tribunal a document or information to which s 438 applies, the Secretary must notify the Tribunal that the section applies and may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. 11 Section 418(1) provides that, if an application for review of a decision is made to the Tribunal, the Registrar of the Tribunal must give the Secretary notice of the making of the application. Section 418(2) then requires the Secretary to give to the Registrar a statement about the decision that sets out the findings of fact, refers to the evidence and gives the reasons for the decision. Section 418(3) also provides that the Secretary must give to the Registrar each other document that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision. 12 The documents in question were not given to the Tribunal pursuant to s 418 before the first decision of the Tribunal but they were given to the Tribunal before it made the second decision. Accordingly, s 438(2) was attracted in respect of them and, pursuant to s 438(2)(a), the Secretary notified the Tribunal that s 438 applies in relation to the documents in question. By letter of 19 November 2002 ('the Secretary's Advice'), the Secretary gave the Tribunal written advice pursuant to s 438(2)(b) of the Act about the significance of the documents in question and the information contained in them. The essence of the Secretary's Advice was that the documents 'should not be disclosed to the applicant or the applicant's legal representative'. 13 The Tribunal did not disclose the documents in question to the applicant or her legal advisers prior to making the second decision. The Tribunal adopted that course following receipt of the Secretary's Advice. However, the Tribunal did not inform the applicant or her legal advisers of the content of the Secretary's Advice. That was the ground upon which this Court granted relief on 16 May 2003 in respect of the second decision of the Tribunal. 14 After the applicant's solicitors were furnished with a copy of the Secretary's Advice, they wrote the Enquiry Request to the Tribunal on 29 July 2003, reiterating previous submissions that the applicant should be provided with the information given to the Department by the Chinese authorities, so that she may know the case that she has to meet. The Enquiry Request then went on to comment critically upon the Secretary's Advice. 15 The Secretary's Advice included the following assertions: 'In this case, permission was specifically obtained by [the Department] from the Public Security Ministry, to disclosure [sic] the documents to the [Tribunal]. However, please note that the PRC agency did not permit the disclosure of the documents or their contents to the applicant, the applicant's legal representative or any other entity. Nor is the Department's obligation of confidentiality towards the information otherwise affected by the permission given by the Public Security Ministry. The information provided by the Public Security Ministry is information that is likely to be used in any prosecution of the applicant by the PRC authorities. If disclosure were viewed adversely by the PRC authorities it may affect future cooperation.' 16 The Enquiry Request referred specifically to those assertions and said: 'We seriously doubt the accuracy of this statement, and suggest that the following questions be directed to [the Department], 1. Was the fact that the Tribunal has to [sic] right to act against [the Department] advice disclosed to the Chinese, and if so what was their reaction? 2. Are the Chinese authorities aware that the documents may have had to be given to a judge, and may be read by a judge? 3. Exactly what was communicated by the Chinese authorities to her section re the confidentiality of the documents? 4. Is [the Department] saying that no document from an overseas law enforcement agency can ever by [sic] given to an applicant in any circumstances?' 17 In substance, the applicant's contention in relation to the exercise of the discretion under s 438(3)(b) is that the Tribunal should have exercised the powers conferred by s 427 of the Act in order to obtain answers from the Secretary to those questions before deciding whether or not to disclose the documents in question. Section 427(1)(d) provides that the Tribunal may require the Secretary to arrange for the making of any investigation that the Tribunal thinks necessary and to give to the Tribunal a report of that investigation. Under s 427(3), the Tribunal may summon a person to give evidence or to produce documents. 18 The applicant contends that, in the circumstances of this case, it was said, there was a duty imposed on the Tribunal to enquire in order to afford procedural fairness to the applicant. Alternatively, she says that the failure to enquire in the circumstances of this case resulted in an exercise of discretionary power whether or not to disclose that was so unreasonable that no reasonable decision maker could have exercised it in the way in which the Tribunal exercised the power. 19 It is clear that, in the ordinary course, there is no duty on the Tribunal to exercise the power conferred by s 427: see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 277 at [24]-[26]. Nevertheless, failure by the Tribunal to make enquiries about the claims or the evidence of an applicant could in some circumstances be a breach of the rules of natural justice or render the decision unreasonable where, for example, there was information readily available to it that was centrally relevant to a decision affecting that applicant: see Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at 552[26]. 20 The applicant contends that the questions suggested by the Enquiry Request go directly to the issue of whether the documents in question were indeed confidential or were at least as confidential as the Secretary claimed. She contends that the answers to the questions would be relevant and significant to the decision to be made by the Tribunal as to whether the documents in question should be disclosed to the applicant. She says that, since the answers are unavailable to the applicant and can only reasonably be obtained from the Secretary by the exercise of the Tribunal's powers under s 427, procedural fairness demands that the Tribunal put the questions. For the Tribunal to fail to do so was said to deny the applicant an opportunity to deal with relevant and significant matters. 21 The Minister does not dispute that the Tribunal was obliged to afford the applicant procedural fairness in making its decision under s 438. The Minister says, however, that procedural fairness does not require a decision maker to adopt procedures suggested by a party simply because the party suggested them. Procedural fairness requires the adoption of a procedure that is objectively fair. Following the earlier proceeding in the Federal Court, the applicant was furnished with a copy of the Secretary's Advice and was given an opportunity to respond to the Secretary's Advice. The Enquiry Request was that response. The Minister says, in effect, that that accorded the applicant procedural fairness in relation to the exercise of the discretion under s 438(3). 22 A duty to enquire may arise in the rare case where information that is centrally relevant to a decision that may affect a person is readily available to the decision maker but is not available to the person affected. The questions set out in the Enquiry Request, on a fair reading, call for a response concerning matter within the knowledge of the Secretary. To that extent, the information necessary to respond was readily available to the Secretary and, therefore, could have been compelled by the exercise of the powers conferred on the Tribunal by s 427. However, it is by no means clear as to why the answers would be centrally relevant to the exercise of the discretion to disclose the documents in question. 23 The thrust of the applicant's contentions appears to be that, if the authorities in China had been told that the Tribunal had a discretion under s 438 to disclose the relevant documents to the applicant or that the documents may be furnished to and read by a judge, a different attitude may have been taken by the Chinese authorities to the giving of permission for access to be granted to the applicant and her legal advisers. 24 The Secretary's Advice says expressly that the obligation of confidentiality is not affected by the permission given by the Public Security Ministry. That is to say, the Secretary's Advice was that, whatever permission may have been given by the Chinese authorities, the Department regarded the obligation of confidentiality as preventing disclosure. The Tribunal had the benefit of the submissions made on behalf of the applicant in the Enquiry Request that the authorities in China may have taken a different attitude to disclosure if they had known of the possibility that the documents could be shown to a judge. The Tribunal took those submissions into account. 25 The attitude of the Chinese authorities was not central to the exercise of any discretion conferred on the Tribunal by s 438(3)(b). Section 438(2) confers a discretion on the Secretary to give the Tribunal advice. If it does, the Tribunal is required to have regard to it under s 438(3). The Tribunal is not bound by the advice. Further, it must be remembered that the exercise of discretion under s 438(3) is a mere incident of the primary function of the Tribunal, namely, to decide whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention. 26 Question 3 of the Enquiry Request seems to encompass the first two questions and the observations made above are equally applicable to that question. Question 4 seems to be an enquiry as to the attitude of the Department to an issue that did not arise before the Tribunal. The Secretary's Advice did not make any general statement about documents from overseas enforcement agencies. There is no reason why the Tribunal would need an answer to the question in order to exercise its discretion under s 438(3). 27 The failure to make the enquiries of the Secretary was not a denial of procedural fairness. Having given consideration to the Enquiry Request, there was nothing unreasonable on the part of the Tribunal in deciding not to accede to it.

FAILURE TO DISCLOSE THE DOCUMENTS 28 Each of the first two grounds turns on whether it can be said that the questions proposed by the applicant's solicitors were central to the decision that the Tribunal was called upon to make under s 438(3)(b). The third ground, in contrast, bypasses s 438 altogether. That is to say, the first two grounds assume that, but for the exercise of the discretion conferred bys 438(3)(b), the applicant would not be entitled to access to the documents in question. The third ground makes no such assumption. The applicant contends that, unless there is some provision of the Act that prohibits the Tribunal from providing the applicant with access to the documents in question, the principles of procedural fairness would require them to be made available to her. 29 The Minister does not dispute that, in the absence of any prohibition on disclosure and in the absence of confidentiality in relation to the documents in question, procedural fairness would require the applicant to be given access to them, since they are clearly of some significance to the question of whether or not the charges against the applicant in China are politically motivated. The Minister does not contend that there is no requirement for procedural fairness to be accorded to an applicant in making a decision under Pt 7. Specifically, the Minister does not contend that s 424A constitutes an exhaustive statement or code as to the circumstances in which procedural fairness, in the form of disclosing material to an applicant, is to be afforded. However, the content of procedural fairness that is to be afforded under Pt 7 is to be informed by the scheme of Pt 7 generally. 30 Section 424A(1) requires the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. However, under s 424A(3)(c), s 424A does not apply to information that is 'non-disclosable information'. '[N]on-disclosable information' is defined in s 5 as information or matter:

whose disclosure would, in the Minister's opinion, be contrary to the national interest for the reason specified;
whose disclosure would, in the Minister's opinion be contrary to the public interest for the reason specified;
whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence. 31 Thus, s 424A does not prohibit the giving of information. Rather, it imposes an obligation of disclosure, subject to the exception of s 424A(3). Further, s 438 contains no express prohibition, although it appears to assume that, but for the power to permit under s 438(3), access would be denied. The question is whether such a prohibition on access is to be implied from the terms of s 438. There would be little, if any, work for s 438 to do if there were no such prohibition. 32 The Minister does not contend that there is an express statutory prohibition on disclosure of the documents in question. However, the Minister contends that there is implicit, in the scheme of s 438 and the related provisions of Pt 7 of the Act, a prohibition on disclosure to an applicant of matter contained in a document or information unless there has been a decision under s 438(3)(b) to do so. 33 There is a parallel between the provisions of s 437 and s 438, on the one hand, and the definition of 'non-disclosable information' in s 5, on the other. The definition of 'non-disclosable information' is significant in relation to the express obligation imposed by s 424A on the Tribunal to give to an applicant particulars of information that the Tribunal considers would be the reason or a part of the reason for affirming a decision under review. Thus, s 424A(1) imposes an obligation on the Tribunal to give such information to an applicant, subject to the exception in s 424A(3)(c) in respect of 'non-disclosable information'. 34 Section 437 and s 438 constitute qualifications of the obligations imposed on the Secretary by s 418 to give documents to the Tribunal. Section 437 applies to a document or information if the Minister certifies that the disclosure of any matter contained in the document or the disclosure of the information would be contrary to the public interest for the reasons specified. Section 438 applies to a document or information if:
the Minister has certified that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest (other than for a reason referred to in s 437) that could form the basis for a claim that the matter contained in the document or the information should not be disclosed in a judicial proceeding; or · the document or the information was given to the Minister in confidence. 35 The Secretary is prohibited by s 437 from giving to the Tribunal a document or information to which that section applies. The Secretary is obliged by s 438 to notify the Tribunal if that section applies to any documents given to the Tribunal. In so far as the balance of s 438 confers a discretion to give advice about the significance of the document or information and then confers on the Tribunal a discretion, if it thinks fit, to disclose any matter contained in the document or the information to the applicant, there is clearly an assumption that, but for the exercise of the discretion, there would be no entitlement on the part of an applicant to disclosure of the matter in question. 36 That assumption is particularly obvious having regard to s 438(4). Section 438(4) imposes an obligation on the Tribunal, if it does disclose any matter to an applicant, to give a direction under s 440. Section 440(1) gives the Tribunal a discretion to give a written direction that evidence, information or contents of documents before the Tribunal should not be published or otherwise disclosed. Under s 440(3), it is an offence punishable by imprisonment for two years for a person to contravene such a direction given by the Tribunal. 37 Thus, it is patently clear that the Parliament, in enacting s 438, assumed that matter contained in a document or information to which s 438 applies would not be disclosed except upon the exercise of discretion by the Tribunal and then subject to a direction that it may not be published or otherwise disclosed. 38 Section 424A(3) excuses the Tribunal from giving to an applicant particulars of information that the Tribunal considers would be the reason or part of the reason for affirming a decision under review, where that information is, inter alia, information whose disclosure would found an action for breach of confidence. It would be curious if, notwithstanding that provision, the confidential information were otherwise required to be given to an applicant in order to afford procedural fairness to the applicant. 39 The implicit assumption to be found in s 438 is consistent with the scheme of s 424A that an applicant is not entitled to access to documents or information that consist of:
non-disclosable information;
a document or information that is the subject of a certificate under s 437; · a document or information to which s 438 applies, unless the Tribunal thinks it appropriate to disclose any matter contained in the document or the information but subject to giving a direction that the information and contents of the document not be published or otherwise disclosed. The scheme of the Act indicates that the procedural fairness that is to be afforded to an applicant does not extend to disclosure of any of the above material except in the circumstances contemplated by s 438(3)(b).

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Judgment (5 paragraphs)

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