Prising open the secret document lock
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law
3 September 2021
The secrecy certificates Immigration impose on the tribunal stopping it from revealing dob-in material to review applicants can be challenged.
Often it turns out that the dob-in material is very damaging but when placed under the microscope such material often proves to have little value as real evidence.
The result is a serious injustice to the review applicant and in turns damages the standing of the tribunal as a genuine independent body (ie independent from the department).
But they can and should be challenged both at the tribunal level and if successful at the court level on judicial review.
These certificates are issued under s375A of the Migration Act which states, as relevant:
“Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, 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….; and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) (b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.”
I have observed a trend whereby the AAT gives a review applicant a copy of such a certificate at the hearing, which often takes a review applicant and their advisers by surprise. This is unbecoming of the tribunal. One way to avoid this is to always make multiple applications under s362A for a copy of all material produced to the tribunal, but even then the AAT sometimes does not disclose the existence of the certificate until the hearing.
First thing to do is to examine the certificate closely to see if does make a public interest claim. In this regard one is guided by s130 of the Evidence Act which states, as relevant:
“130 Exclusion of evidence of matters of state
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State;”
The s375A certificate is not a conclusive certificate and the tribunal is entitled to make its own judgment as to whether the material is in fact subject to public interest immunity. Migration advisers acting for review applicants should generally submit that the public interest immunity ought not apply.
Often the material is quite innocuous and should be disclosed.
If the tribunal rejects the challenge to public interest immunity then on judicial review an application can be brought for disclosure of the so-called secret material.
This was done in a Federal Circuit Court application in Khaira v Minister for Home Affairs (No 2) [2021] FCCA 659 (see http://www.austlii.edu.au/cgi bin/viewdoc/au/cases/cth/FCCA/2021/659.html) and Khaira v Minister for Home Affairs (No 3) [2021] FCCA 687
(see http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2021/687.html).
There is no doubt that the disclosure enabled the applicant to present a stronger case for judicial review which was successful - Khaira v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 4) [2021] FCCA 1716
(see http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2021/1716.html)
So as can be seen it is possible to challenge these s375A certificates and prise open the secrecy clamps