Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

B THE DECISION BELOW 4 Mr Nusipepa advanced three arguments in support of his application for judicial review below, namely: (1) the delegate provided to the Tribunal notifications that s 376 of the Act applied to documents or information, which were invalid and material (First Contention); (2) the Tribunal failed to "invite" Mr Nusipepa under s 360 of the Act to give evidence and present arguments relating to the issues arising in relation to the decision under review (Second Contention); and (3) the Tribunal constructively failed to exercise its jurisdiction by failing to identify the risk Mr Nusipepa's presence in Australia posed to his wife and children (Third Contention). 5 It is useful to outline the primary judge's reasoning in rejecting the First Contention and the Second Contention, as Mr Nusipepa submits that these arguments are revived in the grounds identified in the proposed amended notice of appeal. Mr Nusipepa does not seek to argue that the primary judge erred in failing to accept the argument advanced by the Third Contention. It is unnecessary to address it further.

B.1 First Contention 6 Section 376 of the Act provides as follows: 376 Tribunal's discretion in relation to disclosure of certain information etc. (1) This section applies to a document or information if: (a) the Minister: (i) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and (ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information. (2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal. 7 The primary judge was satisfied that both the first s 376 certificate (which was revoked) and the second s 376 certificate were validly issued over the information and material in the emails sent to the Minister by Mr Nusipepa's wife: PJ [120]. The emails alleged that Mr Nusipepa had physically and emotionally abused his wife and children. Mr Nusipepa deemed some of these emails to be supportive of him, and others to be adverse. The primary judge held that both certificates specified a reason for issue, as required by s 376(1)(a)(i) of the Act, namely that the material the subject of the certificates was capable of grounding a claim of public interest immunity from disclosure under s 130 of the Evidence Act 1995 (Cth): PJ [115]-[116]. The primary judge also found that the information was "given" in confidence as required by s 376(1)(b), because Mr Nusipepa's wife made clear that she was a confidential source of the information she provided to the Minister in her emails: PJ [117]-[118]. 8 For the avoidance of doubt, the primary judge proceeded to conclude that in any event, if the certificates were invalidly issued over any of the emails, this was not material and any error did not constitute jurisdictional error: PJ [121]-[132]. Two factors underpinned this decision. First, the initial certificate was of no practical effect once revoked: PJ [122]. Secondly, with respect to both certificates, there was no particular information of which Mr Nusipepa ought to have known, but did not know, that could have prejudiced him in the conduct of the review: PJ [124]. Indeed, as the primary judge found, the information was later put to the Tribunal by Mr Nusipepa's wife, in her capacity as Mr Nusipepa's authorised recipient and representative: PJ [123], [127].

B.2 Second Contention 9 Mr Nusipepa asserted that the Tribunal failed to exercise its jurisdiction under s 360 of the Act. Section 360 provides as follows: 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 10 The primary judge rejected this argument, finding that the Tribunal had alerted Mr Nusipepa to the fact that if he was found guilty of an offence with which he was charged it was likely to find his presence in Australia is, or may be, a risk to others, and invited him to comment on this: PJ [151]. On the evidence before the primary judge, her Honour concluded that the Tribunal had at its disposal a New South Wales Police Facts Sheet pertaining to Mr Nusipepa (Facts Sheet) and, following his conviction of one offence, a record of his conviction: PJ [150]. The primary judge was also satisfied that the Tribunal gave Mr Nusipepa the opportunity to comment on these concerns: PJ [151]. On this basis, the primary judge held that it was open to the Tribunal to find that, pursuant to s 116 of the Act, Mr Nusipepa may be a risk to the health or safety of a segment of the community or to an individual: PJ [153]-[154].

C APPLICATION FOR LEAVE TO RELY ON AMENDED NOTICE OF APPEAL

C.1 Proposed Grounds of Appeal 11 The notice of appeal originally filed set out one ground of appeal in the following terms: The appellant was not satisfactorily represented during the proceedings, and therefore [the primary judge] was never presented with sufficient evidence to rule successfully in the appellants [sic] favour. The appellant is asking the court to allow for special circumstances to allow new evidence be provided to the court which is available but was not submitted in the original appeal heard by [the primary judge]. It was not known to the appellant how poor his defence was until upon reading the judgement [sic] handed down by [the primary judge] on May 8th 2020, where the legal representative Richard Chia put across 3 points to argue which had no weight or evidence supplied. The appellant does have evidence to submit to the court that there was [sic] a number of errors made during the handing down of the decision by the AAT when they upheld his case. 12 As noted above, Mr Nusipepa now seeks to rely on an amended notice of appeal identifying the following four grounds (Proposed Grounds), none of which were advanced in the court below: (1) the primary judge erred in not finding that the certificate issued by the Minister's delegate on 5 October 2018 purportedly under s 376 of the Act (second certificate) was invalid (Proposed Ground One); (2) the primary judge erred in finding that even if some of the information or documents covered by the second certificate were not properly certified this did not give rise to jurisdictional error as the error was not material (Proposed Ground Two); (3) the primary judge erred in not finding that the Tribunal failed to comply with s 360 of the Act (Proposed Ground Three); and (4) the primary judge should have found that there was an apprehension of bias affecting the decision of the Tribunal (Proposed Ground Four). 13 It should be noted that there were in fact two foreshadowed amendments to the notice of appeal: a first, which included Proposed Grounds One to Three, and a second, which included Proposed Ground Four. Importantly, the amended notice of appeal including Proposed Ground Four was only provided to the Court at the commencement of the hearing and to counsel for the Minister slightly earlier. This meant that only the first three Proposed Grounds were addressed by the parties in written submissions.

C.2 Legal Framework 14 The principles concerning the grant of leave to raise a ground for the first time on appeal are trite. As a "general rule a party is bound by the conduct of his case": Park v Brothers [2005] HCA 73; (2005) 222 ALR 421 (at 430 [34] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). This stems not only from the law's objective of achieving finality, but also from the legitimate interest in public law matters being resolved in a timely and efficient manner: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 (at 247 [89] per Flick and Rangiah JJ); Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 64 ALD 9 (at 24 [62] per Gyles J); SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (at [30] per Lander J). 15 There are nevertheless circumstances in which an appellate court may, guided by the interests of justice, permit a party to raise a point that was not taken below: Park v Brothers (at 430 [34] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in detail in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (at 598-599 [46]-[48] per Kiefel, Weinberg and Stone JJ). The Full Court drew attention to matters such as that presently before the Court, remarking (at 598-599 [48]): The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 16 For the reasons that follow, after hearing full argument from the parties, we have concluded that the four grounds of appeal proposed by Mr Nusipepa are of no merit. Consequently, leave to rely on the amended notice of appeal should be refused.

The appellant's contentions 17 Counsel for Mr Nusipepa submits that the First Contention below was expressed in such general terms that it accommodated Proposed Ground One and Proposed Ground Two of the amended notice of appeal; that is, the First Contention "generally" challenged the validity of the s 376 certificates: see T8.13-5; T8.28-33. 18 Mr Nusipepa submits that the primary judge erred in not finding that the second certificate was invalid for two reasons. 19 First, it is said that the material the subject of the second certificate did not have the quality of confidence required by s 376 due to an "iniquity" arising from emails sent by Mr Nusipepa's wife to the Minister. Mr Nusipepa relies on the rule that there is no confidence as to the disclosure of an iniquity as originally formulated by Wood V-C in his seminal ex tempore judgment in Gartside v Outram (1856) 26 LJ Ch 113 (at 114): The true doctrine is, that there is no confidence as to the disclosure of an iniquity. You cannot make me the confidant of a crime or fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part … 20 In Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1; (2020) 276 FCR 477, Allsop CJ and Lee J (with both of whom White J substantially agreed) separately surveyed the development of Wood V-C's aphorism in law and in equity. In particular, Mr Nusipepa relies on the following passage of the reasoning of Lee J (at 504 [104]): … there may be a balancing exercise, depending upon the nature of the confidential information, the public interest allegedly affected and any other public interest consideration. Hence the "balancing" is directed to the issue as to whether, having regard to public interest considerations, including competing considerations (such as the desirability of holding people to their bargains, which would be furthered by enforcing the contract), the obligation interferes adversely with the administration of justice. This is to be contrasted with some form of freestanding discretionary judgment (informed by all the circumstances of the case) as to whether the obligation ought to be overridden to achieve an end perceived as being desirable. 21 Mr Nusipepa did not define the so-called iniquity in written or oral submissions. In written submissions, however, Mr Nusipepa emphasises his wife's email to the Minister on 13 September 2018, in which she is recorded writing: "I done [sic] everything I could to get him kicked out of the country"; "I am so ashamed to admit I was 100% manipulating the system to receive this exact outcome"; and "I convincingly manipulated the system to send him away." 22 Mr Nusipepa submits that because of this "admission" of deliberate misrepresentation, any confidentiality attached to the material would yield to the public interest in the "balancing" exercise to be conducted by the Court. 23 Secondly, and in the alternative, it is said that Mr Nusipepa's wife waived the confidentiality of the material the subject of the second certificate by forwarding the Minister's emails to the television programme 60 Minutes, and posting on the social media platform Facebook. 24 Finally, of note is that in oral submissions, counsel for Mr Nusipepa submitted that Proposed Ground One was restricted to the "supportive" material contained in the emails the subject of the second certificate: T30.16-24.

Consideration 25 The arguments for invalidity under Proposed Ground One are of a different character from any argument advanced below: see PJ [67]-[73]. Mr Nusipepa alleged no iniquity before the primary judge, nor did he make any argument as to waiver. Mr Nusipepa therefore requires leave to advance Proposed Ground One. 26 Proposed Ground One is of no merit and leave to rely on it should be refused. Six reasons inform this conclusion. 27 First, Mr Nusipepa's reliance on concepts, which originate from a consideration as to whether equity will lend its aid to the protection of confidential information, is misconceived. It is perhaps unsurprising that Mr Nusipepa has not specified the nature of the alleged iniquity. Even if Mr Nusipepa had identified the iniquity with specificity, as pointed out by the Full Court at the hearing, the concept of an iniquity has a very particular application, and its relevance is not immediately obvious in this case. Indeed, the cases relied on by Mr Nusipepa, such as Gartside v Outram, Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, Richards v Kadian [2005] NSWCA 328; (2005) 64 NSWLR 204 and Crown Resorts v Zantran, concern equity's auxiliary jurisdiction. As Bell, Gageler and Keane JJ observed in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (at 438 [18]-[20]), confidence for the purposes of s 438 of the Act (an analogue of s 376) is not to be analogised with an equitable duty of confidence. 28 Secondly, and connected to the first point, Mr Nusipepa's reliance on the balancing exercise is also inapposite; he is not challenging the dissemination of the impugned information but whether the information is in fact confidential. In any event, Mr Nusipepa is unable to identify any damage to the public interest as a result of the second certificate. No "balancing" exercise could therefore be conducted by this Court even if such an exercise was necessary, which it is not. 29 Thirdly, even if it was apposite, Proposed Ground One asks this Court to make factual determinations, and so is predicated upon a misconception as to the Court's appellate jurisdiction. The jurisdiction of this Court is restricted to ascertaining the existence of jurisdictional error in the reasons of the primary judge: s 24(1)(d) Federal Court of Australia Act 1976 (Cth). While this exercise often involves close scrutiny of the Tribunal's reasons and consideration as to whether a primary judge has correctly or incorrectly identified any such error, it does not involve reconsidering the evidence to remake findings of fact. 30 Fourthly, Mr Nusipepa's alternative argument that his wife waived the confidentiality of the emails the subject of the second certificate should also be rejected. It is evident upon a plain reading of s 376(1)(b) of the Act, and in the reasoning of the primary judge (at PJ [118]), that the relevant quality of confidence attaches to the information at the point the information is given. 31 Fifthly, even if a waiver argument was open under s 376, it is unsupported by the evidence before this Court. The only evidence of Mr Nusipepa's wife's contact with the television programme 60 Minutes is a single email forwarding an email communication sent by Mr Nusipepa's wife to the Minister. Similarly, the email upon which Mr Nusipepa relies does not detail precisely what was put on Facebook by Mr Nusipepa's wife. 32 Sixthly, for the reasons given by the primary judge, summarised at [8] above and addressed further below, such errors as were alleged were not in any event material. 33 Leave to rely on Proposed Ground One should be refused.

C.4 Proposed Ground Two 34 Proposed Ground Two is that the primary judge erred in finding that even if some of the information or documents covered by the certificate were not properly certified this did not give rise to jurisdictional error as the error was not material. 35 Mr Nusipepa contends that the primary judge should not have considered the events following the issue of the second certificate in her Honour's assessment of materiality. Namely, it is said that the primary judge should not have concluded that any error arising from the issue of the second certificate was vitiated by the fact that Mr Nusipepa had actual or constructive knowledge of the information through his wife, even though his wife was appointed as his authorised representative. Mr Nusipepa submits that because the second certificate was issued in October 2018, and his wife did not become his authorised representative until November 2018, the error had a material impact upon the way in which the Tribunal dealt with his application in the intervening period. In Mr Nusipepa's submission, an error cannot be "revived" because a future event diminishes the consequence of that error. 36 As with Proposed Ground One, counsel for Mr Nusipepa submitted at the hearing that Proposed Ground Two is restricted to the "supportive" material contained in the emails the subject of the certificate: T30.16-24. 37 Leave to rely on Proposed Ground Two should also be refused. It is predicated upon the success of Proposed Ground One and for that reason alone must fail. Further, there is no indication that the failure to provide Mr Nusipepa with the emails the subject of the second certificate prior to his wife's appointment as his authorised representative had any bearing upon the Tribunal's ultimate decision. In any event, by restricting Proposed Ground Two to the "supportive" email material (see T30.16-24), Mr Nusipepa seeks to pick and choose which information was affected by the alleged error. This is unsatisfactory.

C.5 Proposed Ground Three 38 Proposed Ground Three turns on whether the Tribunal discharged the jurisdiction entrusted to it under s 360 of the Act.

The appellant's contentions 39 Mr Nusipepa submits that the Tribunal failed to exercise its jurisdiction under s 360 of the Act by failing to invite him to give oral evidence and present arguments relating to the outcome of criminal proceedings brought against him, which occurred after the Tribunal hearing. The proceedings concerned the seven charges laid against Mr Nusipepa in March 2018, of which Mr Nusipepa was convicted of one offence of common assault perpetrated against his wife in December 2014. As stated above, upon Mr Nusipepa's conviction, a final apprehended violence order was made for a period of six months in favour of his wife and children and he was placed on a conditional release order for a period of six months. The Facts Sheet described the charge as involving an intoxicated Mr Nusipepa grabbing, dragging and punching his wife, before stomping on her stomach, causing her to fear for her unborn baby. 40 Mr Nusipepa submits that a second hearing was required given he did not know of the outcome of his charges when he appeared before the Tribunal and the outcome of the criminal proceedings was the decisive issue upon which his application for review turned. Indeed, it is said that he was deprived of an opportunity to make submissions as to the significance of his conviction and the apprehended violence order. In particular, Mr Nusipepa sought to emphasise that the conviction related to an event in 2014, and that he had been acquitted of all other counts. 41 Mr Nusipepa concedes in his written submissions that while the Second Contention below concerned s 360 of the Act, Proposed Ground Three alleges an entirely different breach of s 360. In oral submissions, however, counsel for Mr Nusipepa contended that he does not require the leave of this Court to pursue Proposed Ground Three because it does not differ in substance from the s 360 argument advanced below: T24.29-34.

Consideration 42 Whether Proposed Ground Three bears a resemblance to the Second Contention is of no moment. Mr Nusipepa's submissions identify no appellable error in the primary judge's reasoning. 43 First, there was no need for the Tribunal to hold a further hearing once Mr Nusipepa had been convicted because it had already emphasised that the outcome of the criminal proceedings was relevant to its decision: PJ [147]-[155]. The flaw in Mr Nusipepa's argument is that he provided the Tribunal with information about the charges and, at that time, had an opportunity to address the significance of the possible outcomes of the criminal proceedings. The weight that the Tribunal attached to the charges ultimately upheld was a matter for it. 44 Secondly, even if confirmation of Mr Nusipepa's conviction did constitute new material, the revelation of new evidence about an extant issue does not amount to raising a new or additional issue, and so does not trigger an obligation on the part of the Tribunal to give an applicant another hearing: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489 (at 505 [51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ). 45 Leave to rely on Proposed Ground Three of the amended notice of appeal should be refused.

C.6 Proposed Ground Four 46 Proposed Ground Four can be dealt with briefly. Without explanation, it was raised for the first time on the day of hearing. It bears no resemblance to any of the arguments advanced before the primary judge. 47 Notably, counsel for Mr Nusipepa narrowed the scope of this Proposed Ground in oral submissions, contending that Proposed Ground Four relates only to information contained in his wife's emails concerning Mr Nusipepa's alleged conviction and concealment of a crime in Tonga: T30.28-36. Mr Nusipepa contends that the information concerning his criminal history in Tonga was so highly prejudicial to him that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the conduct of the review. 48 This "new" ground of appeal proposes to paint both the First Contention and Proposed Ground One with a different brush. It exemplifies the broader trend against particularisation in Mr Nusipepa's submissions, and Mr Nusipepa's failure to make out his arguments in their "narrower legal sense … or even in any broader non-technical or colloquial sense": CYA18 v Minister for Home Affairs [2019] FCA 1616 (at [9] per Lee J). 49 Nevertheless, it is well established that an allegation of bias must be firmly and distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (at 531 [69] per Gleeson CJ and Gummow J). No such particularisation was forthcoming. In any event, the fact that the Tribunal received documents adverse to Mr Nusipepa is no reason to discern bias - it is simply part of its statutory function. Indeed, in the end, Mr Nusipepa voluntarily provided the Tribunal with the information. 50 Proposed Ground Four is without merit and leave to rely on it should be refused.

D CONCLUSION AND ORDERS 51 Having denied leave to rely on the amended notice of appeal, the Court should only entertain the sole ground outlined in the original notice of appeal (reproduced at [10]). Mr Nusipepa made no submissions in support of this ground. The appeal is demonstrably devoid of merit and must be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Farrell, Burley and Lee.