Vella v Minister for Immigration and Border Protection

Relevant provisions 9 Subsections 501C(1) - (3) of the Act provide as follows: (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10)) ¡V invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. 10 The essence of Mr Vella¡¦s application is that the Minister did not comply with s 501C(3) because he did not provide Mr Vella with all ¡srelevant information¡¨ as defined in s 501C(2). That is because the Minister did not provide Mr Vella with information that the Minister considered to be protected under s 503A of the Act. There is no dispute that the Minister did not provide that protected information to Mr Vella. 11 Subsections 503A(1) - (3) provide as follows: (1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C: (a) the officer must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and (b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B, or 501C. (2) If: (a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B, or 501C; or (b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b); then: (c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and (d) if the information was communicated to an authorised migration officer ¡V the officer must not give the information in evidence before a court, a tribunal a parliament or parliamentary committee or any other body or person. (3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.

Evidence 12 The Minister relied on two affidavits sworn or affirmed by two senior officers of the Department of Immigration and Border Protection (Department). There was no objection to either affidavit or the annexures thereto. 13 Mr Martin Bowles is the secretary of the Department. He states that the documentation that was before the Minister in relation to the decision to cancel Mr Vella¡¦s visa comprised a Ministerial briefing submission, an issues paper attached to the submission and six attachments to the issues paper labelled A to F. 14 Mr Bowles annexes to his affidavit a declaration made by the Minister under s 503A(3) of the Act concerning the disclosure of certain information. The declaration is in the following terms: I, SCOTT MORRISON, Minister for Immigration and Border Protection, acting under subsection 503A(3) of the Migration Act 1958 hereby DECLARE that: Subsections 503A(1) and 503A(2) of the Act do not prevent the disclosure of: "P the information contained in the letters from a gazetted agency to an authorised migration officer dated 31 May 2013, 25 September 2013, 6 November 2013, 5 March 2014 and 12 June 2014 except for any attachments to those letters and redacted information being the names of agency officers , the names of documents referred to in those letters, (whether as attachments or otherwise) and references to criminal intelligence holdings and/or assessments ; "P the information contained in submission SM2014/01658 Consideration of cancellation of visa under subsection 501(3)(b) and the accompanying Issues Paper, except for redacted information being the names of officers, agencies consulted, Attachments A,B,C,D and E to the Issues Paper (marked s503A Protected Information ¡V NOT FOR RELEASE) and descriptions of , and references to criminal intelligence holdings and/or assessments related to , those Attachments ; to the Federal Court and to the Commonwealth officers specified in the attached Schedule; in the following circumstances, namely, in connection with and for the purposes of the Federal Court Proceedings known as Vella v Minister for Immigration and Border Protection (FC: NSD834/2014). 15 The officers named in the schedule are the Minister¡¦s legal advisers. 16 Mr Bowles states that the letters referred to in the first dot point in the declaration, together with the attachments to those letters, are attachments A to E to the issues paper. He says that each of these letters was either addressed to himself or another senior officer of the Department and that each of the documents was described in the issues paper as containing ¡ss 503A Protected Information¡¨. Mr Bowles¡¦ affidavit annexes attachment F to the issues paper. Attachment F is a document headed ¡sRelevant (Disclosable) Information¡¨. It contains information relating to Mr Vella, the Rebels MC and ¡soutlaw motorcycle gangs¡¨ generally. The heading of this document would suggest that the information contained in it is not considered to be protected from disclosure by s 503A of the Act. 17 Mr Bowles¡¦ affidavit annexes a copy of the Minister¡¦s statement of reasons in relation to the cancellation of Mr Vella¡¦s visa. Two passages from the reasons are relevant to the present controversy. Those passages (paragraphs 4 and 6 of the reasons) relate to the basis of the Minister¡¦s findings in relation to the character test and the national interest. 4. Based on the information in respect of Mr VELLA, provided by a gazetted agency as defined by section 503A(9), which is s 503A protected information, I reasonably suspect that Mr VELLA does not pass the character test by virtue of subsection 501(6)(b). … 6. I was satisfied that it is in the national interest that the visa held by Mr VELLA be cancelled under subsection 501(3)(b). In determining this I gave consideration to all of the information before me, in particular the information protected from disclosure under section 503A and the information attached to these reasons. 18 The important point which flows from these passages is that the Minister¡¦s decision was based on information that the Minister asserts is protected from disclosure by s 503A of the Act. This is relevant to one of the submissions advanced by the Minister in these proceedings concerning the forensic purpose of the subpoena. That issue is addressed later in these reasons. 19 Finally, the affidavit annexes a copy of a gazettal notice under s 503A of the Act. This notice establishes that the agency relevant to this matter is a ¡sgazetted agency¡¨ for the purposes of s 503A: see the definition of ¡sgazetted agency¡¨ in s 503A(9) of the Act. 20 Hawari Badri is an Assistant Secretary of a branch of the Department. Ms Badri¡¦s affidavit annexes the documents that have thus far been produced to the Court pursuant to Mr Vella¡¦s subpoena. It is readily apparent that these documents are redacted copies of the documents that were relevantly before the Minister in respect of the cancellation decision: the Ministerial submission, the issues paper and attachments A to E. The parts of the documents that have not been redacted are those parts that are within the terms of the Minister¡¦s s 503A(3) declaration. The information in these parts of the documents is therefore not prevented from disclosure by s 503A(1) and (2) of the Act. 21 The annexed documents are said by Ms Badri to be confidential annexures. That is because she says that she is prevented by s 503A(2)(d) of the Act from disclosing these documents to anyone other than the Court or the officers named in the Minister¡¦s declaration. That would appear to be correct. Having produced the documents to the Court, however, the Minister does not seek any order restricting access to these documents. Nor does he seek any non-disclosure orders. 22 Relevant to the current issue, the redacted copy of the Ministerial submission contains statements to the effect that attachments A to E of the issues paper contain ¡sintelligence information¡¨ furnished to the Department from a named agency which is a gazetted agency for the purposes of s 503A. It is asserted in the Ministerial submission that ¡sthis is protected information under s 503A of the Act¡¨ which may be relied on by the Minister in making his decision, but will not be given to Mr Vella. 23 The terms of the redacted issues paper are not particularly relevant to the current issue. It is, however, again abundantly clear from the redactions that much of the information that was before the Minister for the purposes of his cancellation decision was considered by the Department to be protected information under s 503A which would not be provided to Mr Vella. 24 A number of statements in attachments A to E which have not been redacted are critical to the present application. It is apparent from the face of the redacted documents that each of the attachments is a letter or minute from a named gazetted agency. Each is addressed to the Department. Whilst the name of the officer or officers to whom the letters or minutes were specifically addressed has been redacted, it is clear from Mr Bowles¡¦ evidence that the addressee was in each case a senior officer of the Department. It is readily apparent, therefore, that each addressee was an ¡sauthorised migration officer¡¨ for the purposes of s 503A: see the definition of ¡sauthorised migration officer¡¨ in s 503A(9). 25 Each of the letters or minutes contains a statement to the following effect (omitting redactions): This information is disclosed to you on the following basis: "P It is provided to you in your capacity as an authorised migration officer within the meaning of section 503A Migration Act 1958 (Cth) (MA) and is disclosed to you on the condition that the information is to be treated as confidential information in accordance with section 503A MA; "P This confidential information (within the meaning of section 503A of the MA) is provided for use in connection with and for the purpose of the exercise of the Minister of Immigration & Border Protection¡¦s powers under section 501, 501A, 501B or 501C MA.

Issues and submissions 26 The Minister¡¦s case that the original (unredacted) Ministerial submission, issues paper and attachments A to E are protected from production on subpoena by s 503A of the Act is reasonably straight forward. He submits that the evidence of Mr Bowles and the contents of the redacted versions of these documents prove the relevant ¡spreconditions¡¨ for protection in s 503A(2)(b). Accordingly, the Minister submits that s 503A(2)(c) is engaged and accordingly the Minister ¡smust not be required to divulge or communicate the information to a court…¡¨ 27 The Minister also submits that there is no legitimate forensic purpose in requiring the Minister to produce the original documents (or unredacted copies). That is because he concedes or agrees that, if the proper construction of s 501C is (contrary to his foreshadowed submission) that to afford procedural fairness to Mr Vella he was required to provide him with all relevant information (as defined in the Act), even if the information is protected information under s 503A, Mr Vella¡¦s application must succeed. There is no dispute that the protected documents contain relevant information and no dispute that the documents were not provided to Mr Vella. This, in any event, is readily apparent from the Minister¡¦s reasons. Accordingly, the Minister submits that the content of the documents is irrelevant. The content of the documents will not affect the outcome of the applicant¡¦s case. There is accordingly no forensic purpose in seeking production of the originals. 28 Mr Vella, on the other hand, makes three short points in support of his contention that the documents are required to be produced. 29 First, he submits that the Minister bears the onus of showing that the material is within s 503A of the Act. In his submission, the Minister has not discharged this onus. He submits that the evidence of Mr Bowles is ¡ssparse and formulary¡¨ and amounts to mere assertion concerning the nature and purpose of the relevant documents. As for the contents of the redacted copies of the documents, he submits that the evidence in these documents is not the best evidence. The originals should be put before the Court. In Mr Vella¡¦s submission, neither he, nor more importantly the Court, should be put in the position of merely accepting assertions in the documents about whether or not the information is protected. That is particularly because it is readily apparent that the documents have been drafted in a way calculated to ensure that they are protected under s 503A. The use of such verbal formula should not prevent the Court from determining for itself whether the documents truly satisfy the preconditions in s 503A(2)(a) or (b). 30 Mr Vella¡¦s second point flows from his first. It was not fully developed in argument because it raises a constitutional issue. Whilst notices under s 78B of the Judiciary Act 1903 (Cth) have apparently been sent to the Attorneys-General, only some of the Attorneys have as yet responded. The Minister submits that insufficient notice of the constitutional issue has been given. Mr Vella effectively agrees that insufficient notice has been given and submits that if it becomes necessary to consider the constitutional issue, that consideration should be deferred. 31 In short, the point is that if the Court were to conclude that s 503A prevents the Court from inspecting the original documents for the purpose of ascertaining whether they fall within s 503A, the section would be unconstitutional. Mr Vella agrees that it is only necessary for this issue to be considered if the Court finds that the evidence relied on by the Minister is deficient and does not prove the preconditions in s 503A(2)(a) or (b) of the Act. It is only then that the constitutional point is engaged. 32 Mr Vella¡¦s third point is in response to the Minister¡¦s contention that there is no forensic purpose in requiring production of the original (unredacted) documents. He submits that the content of the original documents is relevant because it will demonstrate that the documents contain information that procedural fairness required to be disclosed to Mr Vella. That information is relevant for the purpose of ¡scontextualising¡¨ the reasons that have been provided by the Minister. Once it is accepted that the material is relevant for that reason, in Mr Vella¡¦s submission that is not altered by any concession or admission by the Minister. Nor, he submits, is it altered by the fact that it is self-evident from the Minister¡¦s reasons that the protected documents were clearly relevant to the Minister¡¦s decision and were not provided to Mr Vella.

Are the documents protected from production? 33 Where information is communicated to the Minister and the question is whether the Minister can be required to divulge the information to the Court, five objective facts must be established for the protection provided by s 503A(2)(c) of the Act to be engaged:

1. the information was communicated to an authorised migration officer by a gazetted agency (s 503A(1) and (2)(b)) (precondition 1);
2. the information was communicated on condition that it be treated as confidential information (s 503A(1) and (2)(b)) (precondition 2);
3. the information was relevant to the exercise of power under ss 501, 501A, 501B or 501C (s 503A(1) and (2)(b)) (precondition 3);
4. the authorised migration agent divulged or communicated the information to the Minister (s 503A(1)(a)(i) and (2)(b)) (precondition 4);
5. the information was divulged or communicated to the Minister for the purposes of the exercise of the power under s 501, 501A, 501B or 501C (s 503A(1)(a)(ii) and (2)(b)) (precondition 5). 34 If the Minister seeks to invoke the protection against production that would arise from s 503A(2)(c) of the Act, the onus is on him to prove these five objective facts or preconditions. He must do so by tendering admissible evidence: Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 545 at [19]-[22]. If the Court is satisfied that all of the five preconditions have been made out on the evidence, the protection provided by s 503A(2)(c) will be engaged and the Minister must not be required to communicate or divulge the information to the Court. Production of the documents therefore could not be required. If the Court is not satisfied that any of the five facts or preconditions has been made out, the Minister can be required to produce the documents. 35 The evidence relied on by the Minister is both admissible (it was not objected to and was admitted) and sufficient to satisfy the Court that each of the five objective facts or preconditions has been established. 36 The first precondition is established by the evidence of Mr Bowles and the redacted documents themselves, in particular attachments A to E. That evidence demonstrates that the information was communicated in the first instance to either Mr Bowles or other senior officers of the Department whose duties include the performance of functions and the exercise of powers under the Act. It is clear from the documents themselves that the information was conveyed by an agency listed in the s 503A gazettal notice annexed to Mr Bowles¡¦ affidavit. 37 The second precondition is also established by the documents themselves. Each of them contains a statement that the agency was providing the information on the basis that it be treated as confidential. The mere fact, if it be a fact, that these statements may be considered to be mere assertions, or somewhat formulaic, or even designed to engage s 503A protection, does not mean that these statements are not capable of constituting evidence of the fact that the relevant agency communicated the information on that condition. Even if the statements could be considered to be documentary hearsay, the business records exception to the hearsay rule in s 69 of the Evidence Act 1995 (Cth) (the Evidence Act) would nevertheless apply. It might reasonably be inferred that the maker or makers of the statements had personal knowledge of the asserted fact; that is, the condition upon which the information was being communicated: s 69(2)(a) of the Evidence Act. 38 It is in these circumstances unnecessary for the Court to see the original documents to be satisfied that this fact or precondition has been established. The common law best evidence rule has been abolished and the contents of the document can be proved by tendering a copy document: ss 48 and 51 of the Evidence Act. There is no basis for suspecting, let alone inferring, that any of the redacted parts of the letters not seen by the Court would qualify, clarify or alter the unequivocal statement of the condition upon which the information was communicated by the agency. It is perhaps possible to envisage circumstances where that may be the case, but those circumstances do not exist here. 39 It should also be emphasised that the relevant fact or precondition is not that the information is in fact of a confidential nature. The requirement is simply that the information was communicated on the condition that it be treated as confidential. In the circumstances of this case it is unnecessary to see the information itself to be satisfied that it was communicated on that condition. 40 The third precondition is also made out from the contents of the redacted documents. Each of the attachments A to E contain a relatively unequivocal statement to the effect that the information was conveyed in connection with, and for the purpose of, the Minister¡¦s exercise of power under ss 501, 501A, 501B or 501C of the Act. That may not alone be sufficient to prove that the information was in fact relevant to the exercise of the power under any of those sections. However that fact is made clear by statements in the Ministerial submission and the issues paper read together with the Minister¡¦s reasons. 41 In the Ministerial submission, the author states that the information conveyed by the agency ¡sis of such a nature that you [the Minister] might consider that it enlivens your power…under subsection 501(3)(b) of the Act¡¨. In the issues paper, the author states that it is open to the Minister, based on the information, to reasonably suspect that Mr Vella does not pass the character test. It is abundantly clear from the Minister¡¦s reasons that he did consider that the information enlivened his power under s 501(3)(b) of the Act and created a reasonable suspicion that Mr Vella did not pass the character test. 42 It must follow that the information was relevant to the Minister¡¦s decision under s 501. There is again nothing in the evidence to suggest that anything in those parts of the documents that have been redacted and therefore have not been seen by the Court would qualify or cast any doubt on the otherwise obviously available inference that the information was relevant to the Minister¡¦s exercise of power in s 501 of the Act. There is no reason for the Court to inspect the originals to satisfy itself about the availability of the inference. The evidence as it is satisfies the Court that the information was relevant to the Minister¡¦s exercise of power. 43 The fourth precondition is established by the evidence of Mr Bowles. It was Mr Bowles who forwarded all the relevant documents to the Minister. 44 The fifth precondition is made out in the same way as the third precondition. 45 It follows that, because the evidence relied on by the Minister is capable of satisfying, and does satisfy, the Court that each of the five relevant facts or preconditions are made out, s 503A(2)(c) of the Act is engaged. The Minister cannot be required to divulge or communicate the information that has been redacted to the Court. His objection to production of the originals or unredacted copies of the documents is accordingly made good. 46 It follows that it is unnecessary to consider the constitutional issue raised by Mr Vella. The Court does not need to call for and inspect the relevant documents to satisfy itself that s 503A(2)(c) of the Act is engaged. It is therefore unnecessary to decide whether s 503A would preclude this and, if so, whether it would as a result be unconstitutional and invalid. 47 It is also strictly unnecessary to consider the Minister¡¦s submissions in relation to the legitimacy of the forensic purpose of requiring production of the documents. Nevertheless, in the event that the conclusions that have been reached in relation to the engagement of s 503A are found to be in error, it is appropriate to consider and determine this issue. 48 The law relating to subpoenas is replete with metaphors and similes. The test for whether a subpoena has a legitimate forensic purpose has been put in terms of whether the material caught by the subpoena appears to have relevance in the sense of ¡sthrowing light¡¨ on at least some of the issues in the principal proceedings: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432; [1997] FCA 1504. A less prosaic statement of this test is whether the subpoena is reasonably likely to add, in the end, in some way or another, to the relevant evidence in the case: Spencer Motors Pt. Ltd v. LNC Industries Ltd [1982] 2 NSWLR 921 at 927; National Employers Mutual General Association Ltd v Waind [1978] 1 NSWLR 372; Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 (Dorajay) at [17]. 49 A subpoena also cannot be used for the purposes of ¡sfishing¡¨ or conducting a ¡sfishing expedition¡¨. A finding of ¡sfishing¡¨ amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small (1938) 38 SR (NSW) 564. A finding of fishing also appears to involve a question of oppression. A subpoena will be set aside if great numbers of documents are called for and it appears that they are not sufficiently relevant: Dorajay at [34]. 50 Ordinarily, in a case where an applicant alleges denial of procedural fairness on the basis that the decision-maker did not disclose information which was credible and relevant to the decision, the information that was before the decision-maker would be relevant. Documents before the decision-maker containing such information would be likely to ¡sthrow light¡¨ on this issue and add to the relevant evidence. But does the content of the documents cease to have relevance, or potential relevance, where it is clear, in any event, that the documents contain relevant information that was used by the decision-maker but not disclosed? Do the documents cease to have relevance by reason of a concession or admission by the respondent? Can it be said in those circumstances that the documents, or their content, are unlikely to ¡sthrow light on the issue¡¨ or add to the relevant evidence? 51 While the question is not simple, it is at least doubtful that it is open to conclude that documents are unlikely to add to the evidence in respect of an issue simply because other evidence is already available in respect of that issue. That alone would provide no good reason to object to production of the documents. The same can be said where the respondent makes an admission or concession concerning the issue, except, perhaps, where there is a relevant agreement as to facts for the purposes of s 191 of the Evidence Act. Otherwise, an admission or concession by a party in relation to an issue does not mean no further evidence can be led in relation to the issue. 52 It is likewise difficult to see why a subpoena would necessarily be considered to involve ¡sfishing¡¨, or be found to be otherwise oppressive, on the basis that other evidence may be available in respect of the issue to which the subpoena is directed. That is particularly the case if, as here, the subpoena does not require the production of large numbers of documents, or cannot otherwise be considered ¡sseriously unfairly burdensome, prejudicial or damaging¡¨ and ¡sproductive of serious and unjustified trouble or harassment¡¨: Hamilton v Oades (1989) 166 CLR 486 at 502; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247; Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [12]. 53 There could be little doubt that the subpoena here could be set aside if there was evidence that the purpose behind it was to get access to confidential information for purposes unconnected with the proceedings. In those circumstances the subpoena would be an abuse of process. There is, however, no evidence that this was, or is, the purpose behind the subpoena. In a sense, the Minister¡¦s submission concerning forensic purpose only has traction if it could be concluded that, whilst the potential relevance of the documents may be slight, the subpoena is seriously burdensome, prejudicial or damaging because the documents sought are confidential. But that issue is unlikely to arise here: if the documents are relevantly confidential they will be (as has been found) protected from production by s 503A of the Act. If they are not so protected, there would be no relevant prejudice or damage from their production.

Conclusion and disposition 54 The Minister has proved that the information in the Ministerial submission, issues paper and attachments A to E which is not able to be disclosed by reason of the Minister¡¦s s 503A(3) declaration is protected from disclosure by s 503A(2)(c) of the Act. The Minister accordingly must not be required to divulge or communicate that information to the Court. It follows that he cannot be required to produce documents containing that information pursuant to Mr Vella¡¦s subpoena. He is therefore not required to produce the original or unredacted copies of the Ministerial submission, issues paper or attachments A to E. Accordingly, there is nothing further for the Minister to produce pursuant to Mr Vella¡¦s subpoena. 55 I direct the parties to confer and agree on orders to reflect these findings and reasons within 14 days of the date of judgment. If no agreement is reached within that time period, the parties should approach the Court to have the matter listed for further directions. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.