Peters v Administrative Appeals Tribunal [2005] FCAFC 159 (12 August 2005)

MIGRATION – s 503A protected information – whether AAT must consider all protected information before delegate in its review – whether positive obligation to procure the information – provenance, purpose and operation of s 503A – operation of subss 500(6C) and (6F) – relationship between non-disclosable information and protected information – whether duty to secure information using AAT’s compulsory processes – construction of s 500(6K)

MIGRATION – procedural fairness – whether AAT must provide appellant with an opportunity to address protected information provided late – whether receipt of protected information on day reasons handed down constituted breach of procedural fairness – whether procedural fairness abrogated by s 503A – whether reasonable apprehension of bias

MIGRATION – procedural fairness – whether AAT can receive summary of protected information

Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)
Migration Legislation Amendment (Protected Information) Act 2003 (Cth)

Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 followed
Ball v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 375 cited
Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 cited
Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276; (2003) 135 FCR 306 cited
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 applied
Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 distinguished

SONNY PETERS v ADMINISTRATIVE APPEALS TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 245 of 2004

MARSHALL, MANSFIELD & STONE JJ
12 AUGUST 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 245 OF 2004

BETWEEN:	SONNY PETERS APPELLANT
AND:	ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	MARSHALL, MANSFIELD & STONE JJ
DATE OF ORDER:	12 AUGUST 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant pay to the second respondent her costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 245 OF 2004

BETWEEN:	SONNY PETERS APPELLANT
AND:	ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGE:	MARSHALL, MANSFIELD & STONE JJ
DATE:	12 AUGUST 2005
PLACE:	ADELAIDE

1 This appeal illustrates two things about the Migration Act 1958 (Cth) (the Act).

2 The first is that certain decisions under the Act, such as the decision to cancel a visa under s 501 of the Act, may be made upon material which the person concerned may not know about and so can have no opportunity to respond to. A cancellation decision may be based upon, or partly based upon, information which a particular agency requires to be kept confidential. The agency’s characterisation of the information as confidential means that, even upon a merits review application before a tribunal or in proceedings before a court, that information is not disclosable to the tribunal or to the court, unless the Minister specifically authorises that particular disclosure. Even the identity of the agency may not be disclosed: s 503D(1). The legislature must have carefully considered whether to enact provisions of such drastic extent. Moreover, the power which resides in the necessarily anonymous agency, and its obligation to exercise that power only in appropriate cases, imposes heavy responsibilities upon the agency. The timing of events in this matter leaves some scope for concern about how those responsibilities are addressed. There is, however, no basis for any view as to whether in this instance the information itself was not properly presented as ‘protected’.

3 The second is that cancellation decisions of the Minister under the Act may have severe consequences for other persons, such as family members of a former visa holder. This appeal concerns such a decision. The appellant is a citizen of New Zealand. He migrated to Australia with his wife and three children in 1992. He was the holder of a Special Category Subclass TY-444 visa (the visa). His wife and children are permanent residents of Australia. The children are now aged 20, 15 and 13. His parents and his brothers also live in Australia, although his father is now deceased. Upon the cancellation of his visa on 29 October 2003, and notice of the decision given on 16 March 2004, the appellant was taken into immigration detention. Subject to the outcome of this appeal, the appellant will be removed from Australia.

4 As s 503A is central to the determination of this appeal, it is helpful to set out its directly relevant provisions. It provides:

The other subsections also prohibit the disclosure of information received in accordance with a declaration of the Minister under s 503A(3), including its disclosure to a court. There is also in s 503A(9) a definition of a ‘gazetted agency’, which within Australia must be ‘an Australian law enforcement or intelligence body’ specified in the Gazette by the Minister. That expression in turn is defined in s 503A(9) as a body which is ‘responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence ...’. Clearly the bodies eligible for gazettal are not closely confined.

5 In this judgment, the confidential information provided to the delegate of the Minister under s 503A is called the ‘protected’ information. In s 503A, the recipient of the ‘protected’ information is referred to as an authorised migration officer. It is clear that such a person is the delegate of the Minister making the decision under one of the nominated provisions. Except where necessary, this judgment will call the recipient of the ‘protected’ information the ‘delegate’ of the Minister.

6 The appellant applied for Australian citizenship on 4 June 2002. He then disclosed certain criminal convictions, most relevantly for present purposes convictions for assault in 1979 in New Zealand when he was 17 (he was sentenced to six years and nine months imprisonment) and in 1994 in Australia (he was sentenced to 12 months imprisonment, although the sentence was suspended). Those convictions meant the appellant had a ‘substantial criminal record’ for the purposes of s 501 of the Act: see s 501(7)(c). Consequently, he did not pass the character test: see s 501(6)(a).

7 On 5 February 2003 the appellant was given notice that his visa may be cancelled by the Minister under s 501(2), that is on the basis he may not pass the character test. The notice referred to s 501(6)(a)-(d) as possible bases for him not passing that test. The appellant replied to that notice by a written submission dated 15 April 2003.

8 On 29 October 2003 a delegate of the Minister decided under s 501(2) of the Act to cancel the appellant’s visa as he reasonably suspected the appellant did not pass the character test, and he exercised his discretion to cancel the visa. Reasons for the decision were given as required by s 501G(1). Apart from the criminal convictions referred to, the delegate had regard to information provided under s 503A of the Act to reach the suspicion that the appellant did not pass the character test.

9 The ‘protected’ information concerned certain of the matters referred to in subss 501(6)(b), (c) and (d), namely the appellant’s association with a group or organisation whom the delegate reasonably suspected as having been or as being involved in criminal conduct; the appellant’s past and present criminal conduct; his past and present general conduct; the risk that he would engage in criminal conduct in Australia; the risk that he would harass, molest, intimidate or stalk another person in Australia; the risk that he would vilify a segment of the Australian community; the risk that he would incite discord in the Australian community, or a segment of it; and the risk that he would represent a danger to the Australian community or a segment of it. The net of the ‘protected’ information was cast very wide. It is impossible to know if it was appropriately cast so wide. The ‘protected’ information is not before the Court. The ‘protected’ information also played a clear part in the way in which the delegate exercised his discretion to cancel the visa. The ‘protected’ information provided under s 503A was annexed to the material presented to the delegate.

10 The notice of the decision was accompanied by two copies of every document relevant to the delegate’s decision that did not contain ‘non-disclosable information’, as required by s 501G(2).

11 The expression ‘non-disclosable information’ is defined in s 5 of the Act. It is information, disclosure of which would, in the Minister’s opinion, be contrary to the national interest because it would prejudice Australia’s security or defence or international relations, or involve disclosure of Cabinet deliberations or decisions, or could in judicial proceedings be subject to Crown privilege, or finally could expose the Commonwealth to an action for breach of confidence.

12 The delegate’s decision was reviewable by the Administrative Appeals Tribunal (the AAT) under the particular regime provided by s 500 of the Act. Section 500(5) requires the AAT on such review to be constituted by a presidential member alone. The review had to be instituted within nine days of notification of the decision: s 500(6B). The application to the AAT had to be accompanied by the notification of the decision, and a set of the documents served with the notification: s 500(6C). Those documents comprise the documents before the delegate which were relevant to the making of the decision, and which do not contain ‘non-disclosable information’: s 501G(2). Section 500(6F) requires the Minister to provide the AAT with copies of the documents relevant to the making of the decision which contain ‘non-disclosable information’. The AAT is then forbidden from disclosing the ‘non-disclosable information’ to the person seeking the review, although the AAT may have regard to it: s 500(6F)(d). There are other provisions dealing with the giving of material to the AAT. It must make its decision within 84 days of notification of the decision. The AAT is otherwise taken at the end of that period to have made a decision to affirm the decision under review: s 500(6L).

13 It is common ground on this appeal that, despite the apparent operation of s 500(6C) and (6F), there may be further information before a delegate of the Minister when making a decision under s 501(2) which does not, by operation of those provisions, get passed to the AAT on review. That is information provided to the delegate under s 503A of the Act. It is such information which founds the alleged jurisdictional error by the AAT in affirming (as it did) on 8 June 2004 the decision of the delegate to cancel the appellant’s visa. The AAT decision was given on the last day available to do so. As noted, it would otherwise have been taken by s 500(6L) to have affirmed the delegate’s decision.

14 The AAT received the disclosable information with the application. It also duly received the non-disclosable information. As noted, it is common ground that the AAT did not thereby receive all the ‘protected’ information given under s 503A to the delegate of the Minister.

15 At a directions hearing before the AAT on 7 April 2004 the Minister indicated that no ‘protected’ information would be provided to the Tribunal for the purpose of making its decision. It conducted a hearing from 5 – 7 May 2004. It recorded that, on 5 May 2004 (the first day of the hearing), the Minister submitted some but not all of the ‘protected’ information previously provided to the delegate. That information became Exhibit R2. The vehicle for its receipt was a ministerial declaration under s 503A(3) of the Act. The evidence was completed on 6 May 2004 and submissions on 7 May 2004, apart from confidential written submissions from the Minister relating to the ‘protected’ information. They were made on 10 May 2004.

As s 503A(3) indicates, it is not for the relevant gazetted agency to consent or not consent to the release of certain information. The Minister is empowered to authorise release of that information, although required to consult with the gazetted agency before doing so.

17 The AAT notified solicitors for the appellant of the foreshadowed request on the part of the Minister to adduce further evidence. It received a responsive submission from those solicitors on 2 June 2004.

18 On 4 June 2004, the AAT responded formally to the solicitors for the Minister. In sentiments which it also expressed in its reasons at [44], it said that it considered it would be appropriate for the Minister to provide to the AAT as much relevant information as possible to enable the AAT to arrive at the correct or preferable decision, and that it would seem unsatisfactory for the AAT not to have before it all of the ‘protected’ information which was in the possession of the delegate who made the primary decision. It made the point that such circumstances appear inconsistent with, and may render more difficult, the AAT’s function of reviewing the decision of the delegate and arriving at the correct or preferable decision. It also sought full details of the ‘protected’ information, rather than a summary of it.

19 There was then a further hearing before the AAT in the absence of the appellant on 4 June 2004 at which certain of the ‘protected’ information was provided (Exhibit R3). That was not the end of the evidence. On 7 June 2004, the AAT was informed by the solicitors for the Minister that more of the ‘protected’ information may be produced. It was only at 1 pm on 8 June 2004 that the additional ‘protected’ information (Exhibits R4 and R5) was adduced. R4 is described in correspondence as an affidavit by a solicitor engaged by the Minister in which ‘he deposes to the accuracy of the summary information, being the protected information in exhibit R3’. R5 is described as a further declaration and documents ‘clarifying and expanding the information contained in exhibits R2 and R3’. The vehicle for the disclosure of each of Exhibits R3, R4 and R5 was also declarations by the Minister under s 503A(3).

20 It is common ground that not all the ‘protected’ information before the delegate was provided to the AAT. The AAT noted expressly that there was additional protected information before the delegate which had not been provided to the AAT.

21 In essence, there were three principal contentions on behalf of the appellant to demonstrate jurisdictional error by the AAT:

22 Counsel for the appellant accepted that the provision to the AAT of the disclosed information (which it received with the application pursuant to s 500(6C)), and the non-disclosable information (which it received from the Minister pursuant to s 500(6F)) would not routinely ensure that the AAT would have received all the ‘protected’ information before the delegate of the Minister. That is because the ‘protected’ information need not fit the description of ‘non-disclosable information’ in s 5 of the Act.

23 It was then contended that the AAT was under a duty to procure all the ‘protected’ information before the delegate, either by notice to the Minister under s 500(6K)(d) of the Act or by exercising its power to issue a summons to the Minister under s 40(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The AAT did not exercise either of those powers. Because, when it made its decision, the AAT did not have all the material before the delegate, the contention is that it committed jurisdictional error.

24 In a review under s 500 of the Act, the obligation to convey information before the primary decision-maker to the AAT lies on the appellant under s 500(6C) and upon the Minister under s 500(6F). If those obligations do not extend to all the ‘protected’ information, it is necessary for the appellant to show that the AAT itself then had a positive obligation to procure all the ‘protected’ information, so that a failure to do so amounted to jurisdictional error on its part.

25 Section 503A was inserted into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (the 1998 Amendment): see s 3, Sch 1, cl 26. At the same time, s 500(6A) – (6L) were inserted in the Act, together with s 501G (and other provisions). Section 501 was also substituted in its entirety at that time. It can be seen therefore that s 503A was introduced as part of a legislative package relating to decisions made under s 501 of the Act, their review by the AAT, and the extent to which confidential information might be disclosed by a primary decision-maker and its subsequent availability to the AAT if the primary decision is sought to be reviewed. The Migration Legislation Amendment (Protected Information) Act 2003 (Cth) (the 2003 Amendment) refined s 503A. It will be necessary to refer to certain amendments effected by the 2003 Amendment. Its principal purpose appears to be to extend to the courts (once a court has received such information) the statutory regime for the protection of confidential information provided under s 503A rather than to rely on public interest immunity. Hence it enacted ss 503B, 503C and 503D. In circumstances where a decision of the AAT is the subject of an application for prerogative relief to the Court, the Minister may exercise the power under s 503A(3) to declare that confidential information provided to her delegate under s 503A may be provided to the Court. Sections 503B and 503C empower the Federal Court and the Federal Magistrates Court to make orders prohibiting the dissemination of such information. They also provide for a court to indicate an anticipatory non-publication order in the light of which the Minister may authorise the disclosure of confidential information by declaration under s 503A(3).

26 In our judgment, the provisions of subss 500(6C) and (6F) were not intended to operate so as to compel the delegate or the Minister to disclose to the AAT the ‘protected’ information provided to the primary decision-maker under s 503A of the Act.

27 Information provided under s 503A to an authorised migration officer is clearly intended to be confidential. The delegate is expressly prohibited from divulging such information to any other person, including in the present circumstances the appellant: s 503A(1). Indeed, the extent to which the legislature regarded such information as confidential is revealed by the detailed provisions of s 503A. Sub-section (2) prohibits its disclosure to a court, tribunal or parliament. That prohibition applies to preclude its disclosure to a court, even under the court’s compulsory disclosure processes. Sub-sections (6) and (8) indicate a clear intention that the provisions of s 503A should predominate over any other provisions in the Act, and over any other enactment unless it is expressly provided to the contrary in that other enactment. It is impossible to regard s 501G(2) as requiring the provision of any of the ‘protected’ information to the appellant at the time when reasons for the decision of the delegate were provided to the appellant, or to regard s 500(6C) as a vehicle by which the AAT could receive any of the ‘protected’ information from the appellant. The combination of subss 500(6C) and (6F) are intended, in the normal course, to secure to the AAT all of the information before the primary decision-maker whose decision is being reviewed under s 500. But the definition of ‘non-disclosable information’ is a limited one. It does not necessarily encompass the ‘protected’ information. Moreover, the confidentiality regime imposed by s 503A is expressly to apply despite any other provision. Consequently, as counsel for the appellant accepted, s 500(6F) did not operate in the face of s 503A to compel the disclosure to the AAT of the ‘protected’ information.

28 In those circumstances, the appellant’s first contention can succeed only if the AAT had a duty to secure the ‘protected’ information by its own compulsory processes. In our judgment, it did not have such a duty. Indeed, it is clear that its compulsory processes did not, and could not, authorise it or enable it to secure the ‘protected’ information.

29 In the first place, the isolation of confidential information provided to an authorised migration officer under s 503A so that the AAT does not routinely receive it (as discussed in the preceding paragraph) indicates a legislative intention that the AAT, when conducting a review under s 500, does not have the obligation to procure that information. More directly, the only available source of power for the AAT to procure ‘protected’ information would be by the operation of s 500(6K). It empowers the AAT, if it considers certain documents to be relevant to the decision under review, to cause a notice to be served on the Minister requiring the Minister to lodge with the AAT those documents if they are in the Minister’s possession or control. Section 500(6K)(e) obliges the Minister to comply with the notice.

30 Section 500(6K) must be read in its statutory context. It was part of the legislative package enacted by the 1998 Amendment, in conjunction with the enactment (inter alia) of s 503A. Section 503A(6) makes it clear that s 503A is to have effect notwithstanding any other provision of the Act. Section 503A creates its own regime to control the dissemination of the ‘protected’ information provided to the delegate. The prohibitions in s 503A(1) and (2) upon the delegate are clear and explicit. They apply to the review of the delegate’s decision by the AAT. The delegate is prohibited from providing the ‘protected’ information to the AAT. To the extent that disclosure of the ‘protected’ information may occur, it may do so only following a declaration by the Minister under s 503A(3). Moreover, s 503A(3A) provides that there is no obligation upon the Minister to consider whether to exercise her power under s 503A(3). The AAT clearly is not intended to have power to compel the Minister to declare that certain ‘protected’ information before the delegate is not prohibited by subs 503A(1) or (2) from being disclosed to the AAT. The power of the Tribunal under s 500(6K) is, in its terms, inconsistent with the regime under s 503A as it obliges the Minister to comply with a notice given by the AAT. Because s 503A(6) makes it clear that the provisions of s 503A take precedence over s 500(6K), s 500(6K) must be read so as not to empower the AAT to compel the Minister to provide to it the ‘protected’ information.

31 It is also noteworthy that the 2003 Amendment introduced s 503A(3A) to the Act. It makes it clear that there is no duty upon the Minister to consider whether to exercise the power in s 503A(3) in respect of the ‘protected’ information. The Explanatory Memorandum to the Migration Legislation Amendment (Protected Information) Bill 2002 indicates the purpose of the amendments to s 503A effected by the 2003 Amendment was to provide more effective protection to confidential information given to the Minister for the purpose of making decisions to refuse or cancel a visa on character grounds, and s 503A(3) was to clarify that the Minister does not have a duty to consider whether to make a declaration authorising the disclosure of confidential information under s 503A(3) of the Act. Those matters were repeated in the Revised Explanatory Memorandum to the Migration Legislation Amendment (Protected Information) Bill 2003. The fact that s 503A(3A) was introduced in that way fortifies the view that the power of the Minister under s 503A(3A) was to be exercised entirely in her own discretion, and without any power in the AAT to compel its exercise.

32 The other suggested avenues of power for the AAT to compel the Minister to disclose, or to authorise the disclosure of, the ‘protected’ information to it (as submitted by counsel for the appellant) do not have that effect. Section 37(1)(a) of the AAT Act obliges a decision-maker whose decision is being reviewed by the AAT to provide to the AAT every document which the decision-maker regards as relevant. But s 500(6D) of the Act expressly provides that s 37 of the AAT Act does not apply to the review under s 500(1)(b) of the Act by the AAT of a decision to cancel a visa on character grounds made under s 501 of the Act. Section 40(1A) of the AAT Act empowers the AAT to summon a person to produce documents at a hearing before the AAT. However, in the absence of a ministerial declaration under s 503A(3) of the Act, s 503(1) and (2) expressly preclude an authorised migration officer from providing such information to the AAT even in response to a summons. Any uncertainty as to which provision takes precedence is resolved by s 503A(8), as the AAT Act does not expressly provide otherwise.

33 Consequently, the AAT is not shown to have committed jurisdictional error by not securing all the ‘protected’ information for its review. As s 503A(1) makes clear, it is the opinion of the anonymous gazetted agency which gives information provided by that agency its confidential character. Section 503A leaves no scope for the AAT (or for a court) to review that information to determine whether it is, or should be regarded as, confidential and so within the protection regime of s 503A. In its reasons, the AAT said that the fact that it had not received all the ‘protected’ information available to the delegate who made the original decision appeared inconsistent with its role of reviewing the primary decision and to arrive at a correct or preferable decision. It made the same point in correspondence to solicitors for the Minister on 4 June 2004 when the possibility of adducing further parts of the ‘protected’ information had been raised. It did not commit jurisdictional error by failing to take further steps in that regard.

34 The second contention of the appellant requires the Court to address the decision of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 (Ball, Full Court). In that case, the Minister had cancelled the visa of a New Zealand citizen on character grounds pursuant to s 501(2) of the Act. The person whose visa was cancelled applied successfully to the Court to quash the decision. At first instance, two jurisdictional errors were identified in the making of the decision: see Ball v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 375; Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; (2001) 206 CLR 57. The first error was to misconstrue the meaning of ‘substantial criminal record’ in s 501(7) of the Act, so that it was erroneously concluded that the character test had not been met. The second error found at first instance was that the Minister had failed to accord procedural fairness in the making of the decision. The Full Court in Ball, Full Court (Jacobsen and Bennett JJ, Dowsett J dissenting) affirmed the decision on the basis of the first error. It is not necessary to refer further to that aspect of the decision.

35 Their Honours in the Full Court reached a different view from the learned judge at first instance on the second issue. The reasoning of Jacobsen and Bennett JJ is encapsulated in the following passage describing the scheme in s 503A at [91]:

Dowsett J at [30] reached a similar conclusion. (The reference to Evans is a reference to Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 306; [2003] FCAFC 276 in which the principal issue was the validity of a gazettal of agencies by the Minister under s 503A(9)(a); at [13] Gray J in addressing the construction of s 503A(9) started by expressing his Honour’s view as to the general purpose of s 503A (as noted by Jacobsen and Bennett JJ).

36 Ball, Full Court is not directly on point. It relevantly addressed whether the obligation of the Minister to accord procedural fairness in making a decision under s 501(2) extended to confidential information provided by a gazetted agency under s 503A. The context was that s 503A did not, or may not, directly prohibit the Minister (as distinct from an authorised migration officer) from disclosing to the person affected by the information confidential information provided by a gazetted agency. The appellant’s contention in this matter is that the AAT (as distinct from the Minister) had the obligation to accord procedural fairness to the appellant but failed to do so.

37 However, the question now raised is in other respects the same as that which arose in Ball, Full Court. The issue there was stated by Jacobsen and Bennett JJ at [75] as follows:

38 It is axiomatic that legislative provisions to remove an entitlement to procedural fairness must be clear and in direct terms: see e.g. the cases cited by Jacobsen and Bennett JJ in Ball, Full Court in the passage quoted at [35] above. That proposition was accepted by both parties. It was also accepted by both parties that, subject to the particular statutory context, the AAT was obliged to accord procedural fairness to the appellant by giving him an opportunity to address the content of information pertaining to the possible cancellation of the visa, including the ‘protected’ information: see e.g. per Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629.

39 In my (our) view, s 503A(5) applies to the AAT. It prohibits the AAT from disclosing to the appellant that part of the ‘protected’ information which it received following the Minister’s declarations under s 503A(3). Section 503(5A) also prohibits the AAT from providing that information to the Court. The legislature has clearly and directly indicated that that part of the ‘protected’ information provided to the AAT could not be provided to the appellant for his consideration and response. It removes the entitlement to procedural fairness in respect of that information, to which otherwise the appellant would have been entitled. The reasoning in the judgment of Jacobsen and Bennett JJ in Ball, Full Court leading to the conclusion quoted in [35] above applies with more force because s 503A(5) is so clearly expressed. Counsel for the appellant contended that Ball, Full Court was wrongly decided. As noted, that decision is not directly on point so it is not necessary to address that contention in so far as it concerns direct judicial review of the decision of the Minister. But, in the statutory context of s 503A generally and in particular s 503A(5), their Honours’ reasoning is clearly applicable to the present issue concerning review of a decision of the AAT. I (we) respectfully follow it.

40 The other aspect of the appellant’s contention concerning procedural fairness related to the timing and sequence of the AAT’s reception in evidence of Exhibits R3, R4 and R5. It was contended that, because the AAT had to give its decision on 8 June 2004, the reception of Exhibits R4 and R5 only on that day when its reasons for decision must have been almost complete in draft form precluded the AAT from considering how it could give the appellant any opportunity to address the contents of that material (whilst not disclosing the information). Nor, it was argued, could the AAT itself have had a proper opportunity to address that material.

41 The short answer to those submissions is that the AAT, whilst acknowledging the lateness of the receipt of Exhibits R4 and R5, considered whether to receive them in evidence. It determined to do so. Having done so, the AAT at [42] in its reasons expressly considered whether the lateness of the receipt of that material could have prejudiced the appellant. It was satisfied that it did not do so. It concluded that it was not possible to provide even ‘generic’ information about that material to the appellant so that he might have an opportunity to respond to it without contravening s 503A of the Act. In other words, the appellant’s right to procedural fairness in respect of information before the AAT was abrogated in respect of the contents of R3, R4 and R5. It was not the lateness of its receipt in evidence, but its confidential character having been received following a declaration under s 503A(3) which deprived the appellant of the opportunity to address it. There is no basis from the AAT’s reasons to think that the AAT itself was liable to consider the contents of R4 and R5 in a measured way and to reach its conclusion upon the whole of the evidence including that material. It said that the weight and evidentiary value of such ‘protected’ information as it received in evidence would be affected by the extent to which the appellant had been given (or not given) an adequate opportunity to comment upon it, as well as upon other matters. The AAT’s reasons do not suggest it did not properly weigh the contents of R4 and R5 in that light.

42 The alternative argument of the appellant based upon the time of the reception of Exhibits R4 and R5 was that, in the circumstances, that timing gave rise to a reasonable apprehension of bias on the part of the AAT: Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41. There is however no material from which a reasonable observer might conclude that the AAT did not approach its task with an open mind by reason of the time of its reception of Exhibits R4 and R5. It had previously urged the Minister through her solicitors to make available to it all the ‘protected’ information so that it could reach the correct or preferable decision. It was conscious of the operation of s 500(6L), namely that its decision had to be made by 8 June 2004 or it would be taken to have affirmed the delegate’s decision.

43 The timing of the application by the Minister to adduce in evidence Exhibits R4 and R5 was not within the control of the AAT. It was confronted with that application very belatedly. It might have refused to receive that material, but it did not. It is not uncommon for courts or tribunals to be required to make urgent decisions, sometimes on material received only very late, where the particular circumstances require it. In this matter the AAT had earlier expressed the firm desire to receive all the ‘protected’ information. Exhibits R4 and R5 apparently went some way to meeting that desire. The AAT moreover, as its reasons indicate, attempted to give such weight to the content of Exhibits R2, R3, R4 and R5 as the circumstances warranted, having regard to their form and the fact that the appellant had no opportunity (nor any right) to address the content of Exhibits R3, R4 and R5 and only a limited opportunity to address the content of Exhibit R2. Its reasons recognised the potential unfairness to the appellant by the operation of s 503A in respect of that material.

44 In our judgment, the circumstances referred to by counsel for the appellant do not give rise to a reasonable apprehension of bias on the part of the AAT. They indicate simply, as the learned judge at first instance said, that the AAT was doing its best in a difficult situation.

45 The final ground argued by counsel for the appellant is based upon the reception of Exhibit R3 in evidence by the AAT, apparently being a summary of certain of the ‘protected’ information. Exhibit R4 is an affidavit of a solicitor verifying the accuracy of that summary.

46 Section 503A protects confidential information. It is not the form by which the confidential information is conveyed, but the information itself which is protected from disclosure (together with the source of the information: s 503D(1)). Section 503A(3) provides a means whereby the prohibition on disclosure imposed by s 503A(1) and (2) may be removed. It is removed by ministerial declaration in respect of ‘specified information’ in specified circumstances (inter alia) to the AAT. Clearly the information specified in a ministerial declaration need not be all the ‘protected’ information. The means by which the specified information is conveyed, following a declaration under s 503A(3), is also not expressly controlled. It may be, but need not be, in the same form as that by which it was conveyed to the authorised migration officer (although, obviously, the weight to be given to such specified information may be affected by the form in which it is conveyed). The relevant ministerial declarations are not in the material before the Court. It must be assumed that the information conveyed to the AAT was that addressed in the ministerial declarations, including that conveyed by Exhibit R3. There is no basis to conclude that the ‘summary’ of information in Exhibit R3 did not accurately convey to the AAT some of the ‘protected’ information, albeit in a form different from that in which it was presented to the delegate. It was then for the AAT to decide whether information in that form should be received in evidence, and if so what weight should be attached to it.

47 For those reasons, the AAT is not shown to have fallen into jurisdictional error in receiving into evidence the information in Exhibit R3, described as a ‘summary’ of some of the ‘protected’ information.

48 In our judgment, the appeal must be dismissed. The appellant must pay to the Minister her costs of the appeal. The first respondent has submitted to such orders as the Court considers appropriate and does not itself seek costs. The outcome of the appeal relieves the Court of having to consider what orders it might usefully make if it were minded to quash the AAT decision. In that event, a difficulty would arise as to whether the AAT could be directed to rehear and redetermine the application for review of the delegate’s decision, having regard to s 500(6L) of the Act. That is a matter upon which, if the AAT decision were to have been quashed, it would have been necessary to hear further from the parties.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Mansfield and Stone.

Counsel for the Appellant:	A Collett

Solicitor for the Appellant:	Hyams & Associates

Counsel for the Respondents:	S Maharaj with R Prince

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	18 May 2005

Date of Judgment:	12 August 2005

Federal Court of Australia - Full Court Decisions

Peters v Administrative Appeals Tribunal [2005] FCAFC 159 (12 August 2005)